UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 


REGION IX 


75 Hawthorne Street 


San Francisco, CA 94105·3901 


NOV 2 5 2008 

CERTIFIED MAIL NO. 7006 2150 0001 4941 2017 

RETURN RECEIPT REQUESTED 

IN REPLY: AIR-5 

REFER TO Docket No. CAA-09-2009-40 

Mr. Daryl Schenewark 

Sharcar Enterprises, Inc., 

dba Custom Marble & Onyx 

P.O. Box 581710 

Modesto, CA 95358 

Re: In re Custom Marble and Onyx Corporation 

Dear Mr. Schenewark: 

Enclosed is a copy of the Second Amended Complaint and Notice of Opportunity for Hearing 

filed pursuant to section 113(d) of the Clean Air Act, 42 U.S.c. §§ 7401-7671q. The Second Amended 

Complaint identifies Sharcar Enterprises, Inc. dba Custom Marble & Onyx as the Respondent. The 

Second Amended Complaint supercedes the Amended Complaint EPA filed on October 23, 2008. No 

further action on your part is required with respect to the October 23, 2008 complaint. 

Please note that Custom Marble has 20 days from receipt of the Second Amended Complaint to 

file an Answer. If we are able to file a finalized Consent Agreement by that time, Custom Marble will not 

be required to file an Answer. 

Kara Christenson of Region 9' s Office of Regional Counsel is the attorney assigned to this 

matter. She can be reached at (415) 972-3881. 

Sincerely, 

Director, 

~ Air Division 

Enclosure 

cc wI enclosure: Robert P. Soran, Esq. 

Sayed Sadredin, SlVAPCD 

lames Ryden, CARB 

Printed on Recycled Paper 
NANCY J. MARVEL 

Regional Counsel 

KARA CHRISTENSON 

Senior Counsel 

U. S. Environmental Protection Agency 

Region IX 

75 Hawthorne Street 

San Francisco, CA 94105 

(415) 972-3881 

UNITED STATES 


ENVIRONMENTAL PROTECTION AGENCY 


REGION IX 


75 HAWTHORNE STREET 


SAN FRANCISCO, CALIFORNIA 94105 


INRE: ) DOCKET NO. CAA-09-2008-0040 

) 

CUSTOM MARBLE and ONYX, INC. ) UNOPPOSED MOTION TO 

) FILE SECOND AMENDED 

Modesto, California ) COMPLAINT 

) 

RESPONDENT ) 

--------------------------------) 

TO THE REGIONAL JUDICIAL OFFICER: 

Pursuant to the authority set forth in the Consolidated Rules of Practice, 40 C.F.R. Part 

22, Complainant U.S. Environmental Protection Agency, Region 9 ("Complainant") requests that 

the Regional Judicial Officer grant this motion to allow Complainant to file a Second Amended 

Complaint to allow Complainant to properly name Sharcar Enterprises, Inc. dba Custom Marble 

& Onyx as Respondent in lieu of the previously named respondent, Custom Marble and Onyx, 

1 

Inc. Complainant has discussed this motion with Respondent, which has no objection to it. The 

reasons for seeking leave to file a Second Amended Complaint are set forth below. 

BACKGROUND 

On September 29,2008, EPA filed a civil administrative action mulling Custom Marble 

and Onyx, Inc. as the respondent. On October 23,2008, Complainant filed an amended civil 

administrative complaint ("Amended Complaint"), again naming Custom Marble and Onyx, Inc 

as the respondent. On Friday, November 14, 2008, Respondent's attorney brought to the 

attention of Complainant's counsel that the correct legal entity for this action should be Sharcar 

Enterprises, Inc. dba Custom Marble & Onyx. 

ARGUMENT 

Part 22 provides that complainant may amend the complaint once as a matter of right at 

any time before the answer is filed; otherwise, complainant may amend the complaint upon 

motion granted by the Presiding Officer. 40 C.P.R. §22.14(c). As noted above, Complainant 

filed an amended complaint on October 23,2008; therefore, this Motion to File a Second 

Amended Complaint must be approved by the Presiding Officer. 

Pursuant to 40 C.F.R. §22.4(b), the Regional Judicial Officer is the Presiding Officer 

until the respondent files an answer. Respondent has not yet filed an answer in this matter, and 

in fact has until December 16, 2008 to do so, pursuant to an Order issued by the Regional 

Judicial Officer on November 17,2008. Therefore, this motion is properly before the Regional 

Judicial Officer. 

Granting of this motion will not result in prejudice. The representatives of Sharcar 

Enterprises, Inc. dba Custom Marble and Onyx are the same as the owners of Custom Marble 

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and Onyx and are fully aware of the proceedings thus far. The Second Amended Complaint will 

simply identify the correct legal identify and not add or modify any other provisions or 

allegations. Moreover, the Parties agree that it is in their common interest to properly identify 

Sharcar Enterprises Inc., dba Custom Marble & Onyx as the Respondent. Complainant and 

Respondent have engaged in good faith settlement negotiations and are in the process of 

finalizing a Consent Agreement. The Second Amended Complaint will assure that the Consent 

Agreement will resolve Complainant's allegations in a legally effective manner, which is to the 

mutual benefit of the parties. 

CONCLUSION 

For the reasons set forth above, Complainant respectfully requests that the Presiding 

Officer in this matter (the Regional Judicial Officer prior to Respondent's answer) grant this 

Unopposed Motion to file a Second Amended Complaint. 

Dated at San Francisco, California on this~ of November, 2008. 

,/ a Christenson 

Senior Counsel 

USEP A, Region 9 

3 

CERTIFICATE OF SERVICE 

I certify that the original and a copy of the foregoing Unopposed Motion to file a Second 

Amended Complaint was hand-delivered to: 

Regional Hearing Clerk 

U.S. Environmental Protection Agency, Region 9 


75 Hawthorne Street 


San Francisco, CA 94105 


and that a true and correct copy of the Motion was placed in the United States Mail, addressed to 

the following: 

Daryl Schenewark 


Custom Marble and Onyx Corporation 


P.O. Box 581710 


Modesto, CA 95358 


Robert P. Soran, Esq. 


Downey Brand, LLP 


555 Capitol Mall, 10th Floor 


Sacramento, CA 95814 


'" 

Dated: 1(/2-)/" V By: 

I / 

;q r"/C.j)/ >~-"rJ 


Office of Regional Coun~ 

USEP A, Region 9 


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NANCY MARVEL 

. Regional Counsel 

Li .:~" _ ",,; '_ ' . l,"\ KARA CHRISTENSON ;{EG! O~ ~ ,·\L i ~,-;~; ~jr·;G CLERK 

Senior Counsel 

U.S. Environmental Protection Agency 


Region IX 


75 Hawthorne Street 


San Francisco, CA 94105 


(415) 972-3881 


UNITED STATES 


ENVIRONMENTAL PROTECTION AGENCY 


REGION IX 


j AOD[s-0O/f{) 

In re Sharcar Enterprises, Inc., dba ) Docket No. CAA 09~ 

Custom Marble ) & Onyx ) SECOND AMENDED COMPLAINT AND 

) NOTICE OF OPPORTUNITY FOR HEARING Modesto, California ) 

) RESPONDENT, ) 

) 

1. AUTHORITY AND PARTIES 

1. This Second Amended Complaint and Notice of Opportunity for Hearing ("Second Amended 

Complaint") is a civil administrative action brought under section 113(d) of the Clean Air Act (the 

"Act"), as amended, 42 U.S.c. § 7413(d) for assessment of a civil administrative penalty against Sharcar 

Enterprises, Inc, dba Custom Marble & Onyx ("Custom Marble" or "Respondent") for violations of the 

Act. Specifically, this Second Amended Complaint alleges that Respondent violated section 112 of the 

Act, which regulates emissions of hazardous air pollutants ("HAPs"), and relevant regulatory provisions 

set forth in the National Emission Standards for Hazardous Air Pollutants ("NESHAP") for Reinforced 

Plastic Composites Production, 40 C.P.R. Part 63, Subpart WWWW.§§63.5780-63.5935.This Second 

Amended Complaint also alleges that Respondent violated section 502 of the Act, which requires major 

stationary sources of air pollution to obtain an operating permit that includes emissions limitations and 

Second Amended Complaint and Notice of Opportunity for Hearing 

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such other conditions as necessary to assure compliance with applicable requirements bf the Act. 42 

U.S.c. §§ 7661a-766lf. 

2. This Second Amended Complaint is identical in all respects to the Amended Complaint fIled on 

October 23, 2008, except that it names Sharcar Enterprises, Inc., dba Custom Marble & Onyx as 

Respondent. Leave to file this Second Amended Complaint has been granted by the Presiding Officer. 

This Second Amended Complaint supercedes the Amended Complaint filed on October 23, 2008. 

3. Complainant is the Director of the Air Division, United States Environmental Protection Agency 

("EPA") Region IX. Pursuant to EPA Delegation Order Number 7-6-A, dated May 4, 1994, the 

Administrator of EPA has delegated the authority to fIle this action to the Regional Administrator of EPA 

Region IX, and pursuant to EPA Regional Order Number RI265.05A, dated August 14,2003, the 

Regional Administrator re-delegated that authority to the Complainant, the Director of the Air Division .. 

4. Respondent owns and operates a reinforced plastic composite manufacturing facility ("Facility") 

located at 201 Winmoore Way, Modesto, California. Respondent is located in Modesto, California, 

within the jurisdiction of the San Joaquin Valley Air Pollution Control District ("SJV APCD" or 

"District"). 

B. STATUTORY AND REGULATORY BACKGROUND 


MACT Requirements for Reinforced Plastic Composites Production 


5. Section 112 of the Act requires EPA to list categories of sources of hazardous air pollutants 

("HAPs") and to establish National Emission Standards for Hazardous Air Pollutants ("NESHAP") for 

the listed categories. 42 U.S.c. § 7412(c)(I). The Act requires the NESHAP to reflect the maximum 

degree of reduction in emissions of HAP that is achievable. 42 U.S.C. § 7412(d). This level of control is 

known as maximum available control technology ("MACT"). 

6. Section 1 12(a) of the Act defines a "major source" as any stationary source that emits or has the 

potential to emit ... 10 tons per year ("tpy") or more any hazardous air pollutant or 25 tpy or more of any 

combination of hazardous air pollutants. 42 U.S.c. § 7412(a). 

Second Amended Complaint and Notice of Opportunity for Hearing 2

In re Sharcar Enterprises, Inc., dba Custom Marble & Onyx 
1 7. On July 16, 1992, EPA published a list of source categories that would be regulated under section 

2 112(c). That list included the reinforced plastic composites production source category. 57 Ped. Reg. 

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31576. 

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8. On April 21, 2003, EPA published the final MACT standard for HAPs for Reinforced Plastic 

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Composites Production, 40 c.P.R. Part 63, Subpart WWWW, §§ 63.5780-63.5935. 68 Ped. Reg. 19375. 

6 

9. The effective date of the standard was April 21, 2003. 40 c.P.R. § 63.5780 and Table 2 to 

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8 Subpart WWWW specify that the owner or operator of an existing affected source must comply with the 

9 requirements in Subpart WWWWby April 21, 2006. 

10 10. In relevant part, 40 C.P.R. § 63.5785 states that the requirements of Subpart WWWW apply to 

11 the owner and operator of each reinforced plastic composites production facility that is located at a major 

12 

source of HAP emissions. 

13 

11. In relevant part, 40 c.P.R. § 63.5790 states that Subpart WWWW applies to new or existing 

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affected sources at reinforced plastic production facilities. Section 63.5790 defines an "affected source" 

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as including: equipment used for molding, casting, lamination, pultrusion, sheet molding compound 

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manufacturing, bulk molding compound manufacturing, and mixing. Section 63.5790 also provides that 17 

18 the term "affected source" also includes certain cleaning, storage and repair equipment at reinforced 

19 plastic production facilities. 

20 12. Pursuant to 40 C.F.R. §§ 63.5905(a) and 63.9(b)(2), the owner or operator of an existing affected 

21 source to submit an initial notification to EPA within 120 days of the effective date of Subpart WWWW, 

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or August 19,2003. 

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13. Pursuant to 40 c.F.R. § 63.591O(b), the owner or operator of sources subject to Subpart WWWW 

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must submit compliance reports on a semi-annual basis. Per 40 C.P.R. § 63.591O(b)(4),semi-annual 

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compliance reports must be postmarked or delivered no later than July 31 or January 3 I. Semi-annual 

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compliance reports must contain the information specified in 40 c.F.R. § 63.5910(c), including any 27 


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Second Amended Complaint and Notice of Opportunity for Hearing 3

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Title V Operating Permit Requirements 

14. Title V of the Act requires major stationary sources of air pollution to obtain an operating permit 

that includes emissions limitations and such other conditions as necessary to assure compliance with 

applicable requirements of the Act. See 42.U.S.C. §§ 7661a-766lf. 

15. EPA's implementing regulations for Title V define a major stationary source as including 

sources that emits or has the potential to emit more than 10 tpy orany hazardous air pollutant 

("HAP") listed under section 112(b) of the Act. 40 c.F.R. §70.2. 

16. Styrene is a listed HAP under Section 112(b) of the Act. See 42 U.S.c. 7412(b). 

17. Section 502( a) of the Act provides that, after the effective date of a Title V permit program, 


operation of a maj or stationary source without a Title V operating permit is a violation of the Act. 42 


U.S.c. §7661a(a). 

18. EPA's regulations, at 40 CFR §70.5(a), provide that the owner or operator of a title V 


source must submit a timely and complete permit application. Section 70.5(a)(1) further 


provides that a timely and complete application is one submitted within 12 months after the 


source becomes subject to the permit program or on or before such earlier date as the permitting 


authority may establish. 


19. The District adopted regulations to implement its Title V program on June 15, 1995. 


EPA granted interim approval effective on May 24, 1996 and granted full approval to the 


District's Title V program effective November 30,2001. See 40 CFR Part 70, Appendix A; 66 


Fed. Reg. 63503 (December 7,2001). 


20. The District's requirements for sources to submit timely permit applications are 


substantially similar to EPA's part 70 regulations and require major sources to submit Title V 


permit applications within 12 months after the source becomes subject to the permit program. 


See SJVAPCD Rule 2520, section 5.1. 


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C. GENERAL ALLEGATIONS 

21. Respondent is a corporation incorporated in the State of California. 

22. At all times relevant to this proceeding, Respondent was a "person" as that term is defined in 

section 302(e) of the Act, 42 U.S.c. § 7602(e). 

23. Pursuant to its authority under section 114 of the Act, EPA sent a letter dated August 13, 2007 to 

Respondent requesting information regarding the Facility's compliance with the Act. 

24. On or about October 12, 2007, Respondent submitted its response to EPA's section 114 


information request ("Response to EPA's Information Request"). 


25. Respondent's Response to EPA's Information Request stated that the Facility's emissions of 

styrene for calendar years 2002 -	 2006 were as follows: 

a) 2002 33,206 pounds 

b) 2003 31,767 pounds 

c) 2004 29,891 pounds 

d) 2005 23,770 pounds 

e) 2006 15,825 pounds 

26. Respondent's Response to EPA's Information Request included a Notification of Compliance 

Status, dated July 11, 2006, submitted by the company regarding the Facility's compliance status with 

respect to Subpart WWWW. 

27. Respondent's Response to EPA's Information Request included an initial notification of 

applicability of Subpart WWWW, dated July 11, 2006. 

28. Respondent's Response to EPA's Information Request included an admission that it has not 

submitted semi-annual compliance reports to EPA or to the District. 

29. Respondent's Response to EPA's Information Request revealed that Respondent did not apply fo 

a Title V permit until March 30, 2007. 

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D. ALLEGED VIOLATIONS 


COUNT I: 


FAILURE TO NOTIFY EPA OF SUBPART WWWW APPLICABILITY 


30. Paragraphs 1 through 28 are re-alleged and incorporated herein by reference. 

31. Since at least 2002, emissions of styrene from the Facility have exceeded 10 tpy. Therefore, the 

Facility is a major source of HAPs emissions and is subject to the MACT standard for Reinforced Plastic 

Composites Production, 40 C.F.R. Part 63, Subpart WWWW §§ 63.5780-63.5935. 

32. The effective date of Subpart WWWW was April 21, 2003; therefore, Respondent was required 

to submit an initial notification to EPA by August 19,2003. 40 c.F.R. §§ 63.5905(a) and 63.9(b)(2). 

33. Respondent did not submit its initial notification until on or about July 11,2006. 

34. Respondent violated section 112 of the Act and 40 c.F.R. §§ 63.5905(a) and 63.9(b)(2) by failing 

to timely submit this notification. 

COUNT 2: 


FAILURE TO SUBMIT SEMI-ANNUAL COMPLIANCE REPORTS 


35. Paragraphs 1 through 28 are re-alleged and incorporated herein by reference. 

36. Since at least 2002, emissions of styrene from the Facility have exceeded 10 tpy. Therefore, it is 

a major source of HAP emissions and is subject to the MACT standard for Reinforced Plastic Composites 

Production. 40 c.F.R. Part 63 Subpart WWWW §§ 63.5780-63.5935. 

37. The deadline for the Facility to comply with Subpart WWWW was April 21, 2006; therefore, the 

Facility was required to submit semi-annual compliance reports to EPA, pursuant to 40 C.F.R. §63.591O, 

by January 31,2007, July 31, 2007, and January 31, 2008. 

38. Respondent violated section 112 of the Act and 40 C.F.R. §63.5910 each time Custom Marble 

failed to submit a semi-annual compliance report. 

COUNT 3: 


FAILURE TO SUBMIT A TIMELY TITLE V PERMIT APPLICATION 


39. Paragraphs 1 through 28 are re-alleged and incorporated herein by reference. 

40. The Facility is a major source of air pollution, as that term is defined at 40 C.F.R. §70.2, because 

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it emits more than 10 tpy of styrene, a HAP listed under section 112(b). 

41. The Facility's annual emissions of styrene have exceeded the Title V major source 

threshold since at least 2002. 

42. The Facility was required to have submitted a Title V permit application no later than 12 


months after becoming subject to the program. 


43. Based on information currently available to EPA, the Facility should have submitted a 


Title V permit application no later than December 31, 2003. EPA may determine that the Title V 


permit application deadline was earlier, if there are records demonstrating annual emissions 


exceeded the major source threshold in any year prior to 2002. 


44. The Facility's Title V permit application dated March 30, 2007 was not timely. 

45. The Facility was in violation of section 502 of the Act and 40 c.F.R. §70.5(a) from at 

least December 31, 2003 continuing up to March 30, 2007. 

V. PROPOSED CIVIL PENALTY 

Section l13(d) of the Act, 42 U.S.C. § 7413(d), authorizes a civil administrative penalty of up to 


$25,000 per day for each violation of the Act, provided that the total amount of penalty assessed does not 


exceed $200,000. Pursuant to the Civil Monetary Penalty Inflation Adjustment Rule at 40 C.F.R. Part 19, 


which implements the Debt Collection Improvement Act of 1996, these maximum amounts have been 


adjusted to $32,500 per day, not to exceed a total penalty of $270,000, for each violation that occurred on 


or after March 15,2004. 


For purposes of determining the amount of the civil penalty to be assessed, section 113(e) of the 

Act, 42 U.S.C. § 7413(e), requires the Administrator to consider the size of the business, the economic 

impact of the penalty on the business, the violator's compliance history and good faith efforts to comply, 

the duration of the violation as established by any credible evidence, payment by the violator of penalties 

previously assessed for the same violation, the economic benefit of noncompliance, and the seriousness 0 

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the violation. Accordingly, after consideration of these statutory assessment factors, EPA requests the 

assessment of a civil administrative penalty of up to TWENTY -SEVEN THOUSAND EIGHTY 

DOLLARS ($27,080) against Respondent for the violations of the Act set forth above. 

VI. NOTICE OF OPPORTUNITY TO REQUEST A HEARING 

You have the right to request a formal hearing to contest any material fact set forth in this Second 

Amended Complaint or to contest the appropriateness of the proposed penalty. Any hearing requested 

will be conducted in accordance with the Administrative Procedure Act, 5 U.S.c. § 551 et seq., and the 

Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the 

Revocation or Suspension of Permits ("Consolidated Rules of Practice"), 40 C.F.R. Part 22. A copy of 

the Consolidated Rules of Practice is enclosed with this Second Amended Complaint. 

You must file a written Answer within twenty (20) days of receiving this Second Amended 

Complaint to avoid being found in default, which constitutes an admission of all facts alleged in the 

Second Amended Complaint and a waiver of the right to a hearing, and to avoid having a penalty 

assessed without further proceedings. If you choose to file an Answer, you are required by the 

Consolidated Rules of Practice to clearly and directly admit, deny, or explain each of the factual 

allegations contained in this Second Amended Complaint to which you have any knowledge. If you have 

no knowledge of a particular fact and so state, the allegation is considered denied. Failure to deny any of 

the allegations in this Second Amended Complaint will constitute an admission of the undenied 

allegation. 

The Answer shall also state the circumstances and arguments, if any, which are alleged to 

constitute the grounds of defense, and shall specifically request an administrative hearing, if desired. If 

you deny any material fact or raise any affirmative defense, you will be considered to have requested a 

hearing. The Answer must be filed with: 

Regional Hearing Clerk (ORC-I) 

U.S. Environmental Protection Agency, Region IX 

75 Hawthorne Street 

San Francisco, CA 94105 

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In addition, please send a copy of the Answer and all other documents that you file in this action 

to: 

Kara Christenson 

Office of Regional Counsel (ORC-2) 

U.S. Environmental Protection Agency, Region IX 

75 Hawthorne Street 

San Francisco, CA 94105 

You are further informed that the Consolidated Rules of Practice prohibit any ex parte (unilateral) 

discussion of the merits of any action with the Regional Administrator, Regional Judicial Officer, 

Administrative Law Judge, or any person likely to advise these officials in the decision of the case, after 

the Second Amended Complaint is issued. 

VII. INFORMAL SETTLEMENT CONFERENCE 

EPA encourages all parties against whom a civil penalty is proposed to pursue the possibility of 

settlement through informal conferences. Therefore, whether or not you request a hearing, you may 

confer informally with EPA through Ms. Christenson, the EPA attorney assigned to this case, regarding 

the facts of this case, the amount of the proposed penalty, and the possibility of settlement. An informal 

settlement conference does not, however, affect your obligation to file an Answer to this Second 

Amended Complaint. 

VIII. ALTERNATIVE DISPUTE RESOLUTION 

The parties also may engage in any process within the scope of the Alternative Dispute 

Resolution Act,S U.S.c. § 581 et seq., which may facilitate voluntary settlement efforts. Dispute 

resolution using alternative means of dispute resolution does not divest the Presiding Officer of 

jurisdiction nor does it automatically stay the proceeding. 

IX. QUICK RESOLUTION 

Instead of requesting an informal settlement conference or filing an Answer requesting a hearing, 

you may choose to resolve the proceeding by paying the specific penalty proposed in the Second 

Amended Complaint and filing a copy of the check or other instrument of payment with the Regional 

Hearing Clerk within thirty (30) days after receiving the Second Amended Complaint. If you wish to 

Second Amended Complaint and Notice of Opportunity for Hearing 9

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resolve the proceeding in this manner instead of filing an answer but need additional time to pay the 

penalty, you may file a written statement stating that you agree to pay the proposed penalty in accordance 

with 40 C.F.R § 22. 18(a)(l) with the Regional Hearing Clerk within 30 days after receiving the Second 

Amended Complaint. The written statement need not contain any response to, or admission of, the 

allegations in the Second Amended Complaint. Within sixty (60) days after receiving the Second 

Amended Complaint, the full amount of the proposed penalty must be paid. Failure to make such 

payment within this sixty-day period may subject you to default. Upon receipt of payment in full, the 

Regional Judicial Officer will issue a Final Order. Payment by a respondent shall constitute a waiver of 

the respondent's rights to contest the allegations and to appeal the Final Order. In addition, full payment 

of the proposed penalty shall only resolve Respondent's liability for Federal ci vii penalties for violations 

and facts alleged in the Second Amended Complaint and does not affect the right of EPA or the United 

States to pursue appropriate injunctive or other equitable relief or criminal sanctions for any violations of 

law. 

X. CONSENT AGREEMENT AND FINAL ORDER 

EPA has the authority, where appropriate, to modify the amount of the proposed penalty to reflect 

any settlement reached with you in an informal conference or through alternative dispute resolution. The 

terms of such an agreement would be embodied in a Consent Agreement and Final Order. A Consent 

Agreement signed by both parties would be binding as to all terms and conditions specified therein when 

the Regional Judicial Officer signs the Final Order. 

Jt. 

Dated at San Francisco, California on this~ day of November 2008. 

DEBORAH ~~ JORD 

Director, Air Division 

U.S. Environmental Protection Agency, Region IX 


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