UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 


REGION IX 


75 Hawthorne Street 


San Francisco, CA 94105·3901 


SEP 2 9 

Mr. Andrew M. Kenefick 

Senior Legal Counsel 

CERTIFIED MAIL NO. 70@6 2150 0001 4941 

RETURN RECEIPT REQUESTED 

1973 

Waste Management IN REPLY: AIR-5 

Western Group Legal Department 

801 2nd Avenue, Suite 614 

Seattle, W A 98104 

RE: 	 Consent Agreement and Final Order Issued to Waste Management of Hawaii, Inc. and 

County of Hawaii 

Dear Mr. Kenefick: 

Enclosed is a copy of the Compliance Agreement and Final Order ("CAPO") that 

commences and concludes the administrative enforcement case, In the Matter of Waste 

Management of Hawaii, Inc. and County of Hawaii. The CAFO resolves testing and reporting 

violations of the federal landfill regulations at c.F.R. Part 60, Subpart WWW, 

§§ 60.750-60.759. Pursuant to the terms of the CAFO, Respondents must pay a civil penalty of 

$134,000 and implement a Supplemental Environmental Project ("SEP") that will address 

subsurface combustion problems at the Kailua-Kona landfill. The expenditure for the SEP is no 

less than $184,400. 

If you wish to discuss this CAFO, please contact Brian Riedel of the Office of Regional 

Counsel at (415) 972-3924. Thank you for your cooperation in this matter. 

Sincerely, 

Deborah Jordan 

Director, Air Division 

Enclosure 

cc: 	 County of Hawaii 

Printed on Recycled Paper 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 


REGION IX 


75 Hawthorne Street 


San Francisco, CA 94105·3901 

S~F! 2 9 

Mr. Ivan Torigoe, Esq. 

County of Hawai' i 

Office of the Corporation Counsel 

101 Aupuni Street, Suite 325 

Hilo, Hawai'i 96720 

RE: 	 Consent Agreement and Final Order Issued to Waste Management of Hawaii, Inc. and 

County of Hawaii 

Dear Mr. Kenefick: 

Enclosed is a copy of the Compliance Agreement and Final Order ("CAPO") that 

commences and concludes the administrative enforcement case, In the Matter of Waste 

Management of Hawaii, Inc. and County of Hawaii. The CAPO resolves testing and reporting 

violations of the federal landfill regulations at c.F.R. Part 60, Subpart WWW, 

§§ 60.750-60.759. Pursuant to the terms of the CAFO, Respondents must pay a civil penalty of 

$134,000 and implement a Supplemental Environmental Project ("SEP") that will address 

subsurface combustion problems at the Kailua-Kona landfill. The expenditure for the SEP is no 

less than $184,400. 

If you wish to discuss this CAFO, please contact Brian Riedel of the Office of Regional 

Counsel at (415) 972-3924. Thank you for your cooperation in this matter. 

Sincerely, 

{JI( .l0aJd/lf~ 

Deborah Jordan 

Director, Air Division 

Enclosure 

cc: 	 Waste Management of Hawaii, Inc. 

Hawaii Department of Health, Clean Air Branch 

Printed on Recycled Paper 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 


REGION IX 


75 Hawthorne Street 


San Francisco, CA 94105·3901 

',- 2 9 \'''' 

Mr. Wilfred K. Nagamine 

Manager, Clean Air Branch 

Hawaii Department of Health 

919 Ala Moana Blvd., Suite 203 

Honolulu, Hawaii 96814 

RE: 	 Consent Agreement and Final Order Issued to Waste Management of Hawaii, Inc. and 

County of Hawaii 

Dear Mr. Nagamine: 

Enclosed for your information is a copy of the Compliance Agreement and Final Order 

("CAPO") that commences and concludes the administrative enforcement case, In the Matter of 

Waste Management of Hawaii, Inc. and County of Hawaii. The CAPO resolves testing and 

reporting violations of the federal landfill regulations at c.P.R. Part 60, Subpart WWW, 

§§ 60.750-60.759. Pursuant to the terms of the CAFO, the Respondents must pay a civil penalty 

of $134,000 and implement a Supplemental Environmental Project ("SEP") that will address 

subsurface combustion problems at the Kailua-Kona landfill. The expenditure for the SEP is no 

less than $184,400. 

If you wish to discuss this CAFO, please contact Brian Riedel of the Office of Regional 

Counsel at (415) 972-3924. 

Sincerely, 

(VI. 	tAJ~fv, Deborah Jordan 

Director, Air Division 

Enclosure 

Printed on Recycled Paper 
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NANCY J. MARVEL, Regional Counsel 

BRIAN P. RIEDEL, Assistant Regional Counsel 

Office of Regional Counsel 

U.S. Environmental Protection Agency, Region 9 

75 Hawthorne Street (ORC-2) (I 

San Francisco, CA 94105 

Phone: (202) 972-3924; Fax: (415) 947-3570 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

BEFORE THE ADMINISTRATOR 

In the Matter of: 

Waste Management of Hawaii, Inc. 

92-460 Farrington Highway 

Kapolei, Oahu, Hawaii 96707, and 

County of Hawaii 

25 Aupuni Street 

Hilo, Hawaii 96720 

Respondents, 

Proceeding under Section 113 of 

the Clean Air Act, 

42 U.S.c. § 7413 

Docket No. CAA-09-2008- 0 0 3 7 

CONSENT AGREEMENT AND FINAL 

ORDER PURSUANT TO 40 c.F.R. 

§§ 22.13 AND 22.18 

CONSENT AGREEMENT 

I. JURISDICTION AND AUTHORITY 

1. 	 Pursuant to Section 113(d) of the Clean Air Act, 42 U.S.c. §§ 7401-7671q ("CAA" or 

"Act") and 40 c.F.R. §§ 22. 13(b) and 22.18(b) of the Consolidated Rules of Practice 

Governing the Administrative Assessment of Civil Penalties, the Director of the Air 

Division ("Complainant"), U.S. Environmental Protection Agency ("EPA"), Region 9, is 

simultaneously commencing and concluding this proceeding against Waste Management 

of Hawaii, Inc. ("WMH") and the County of Hawaii ("CH") (collectively, 

"Respondents") through the filing of this Consent Agreement and Final Order Pursuant to 

40 C.F.R. §§ 22.13 and 22.18 ("CAFO"). 

2. 	 Complainant is duly delegated the authority to file this action and sign a consent 

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agreement settling this action. 

3. 	 Section 113(d)(l) of the Act limits EPA's authority to issue administrative complaints to 

. matters where the total penalty sought does not exceed $270,000,1 and the first alleged 

date of violation occurred no more than 12 months prior to the initiation of the action, 

unless EPA and the Attorney General for the U.S. Department of Justice ("DOJ") jointly 

determine that a matter involving a larger penalty or longer period of violation is 

appropriate for administrative action. Because this CAPO contains alleged violations that 

occurred more than 12 months ago, Complainant has obtained the required joint 

determination from EPA Headquarters and DOJ. 

4. 	 This CAPO notifies Respondents of Complainant's determination that Respondents have 

violated Section 111 of the CAA and 40 C.P.R. §§ 60.757(b) and 60.757(c) at the West 

Hawaii Sanitary Landfill ("West Hawaii Landfill"). 

II. STATUTORY AND REGULATORY AUTHORITY 

5. 	 Pursuant to Section 111 of the Act, EPA promulgated the Standards of Performance for 

Municipal Solid Waste Landfills ("NSPS Subpart WWW" or "Subpart WWW..).at 40 

C.F.R. Part 60, Subpart WWW, §§ 60.750 - 60.759, effective March 12, 1996. 

6. 	 NSPS Subpart WWW applies to each municipal solid waste landfill ("MSW landfill" or 

"landfill") that commenced construction, reconstruction or modification on or after May 

30, 1991. 

7. 	 Pursuant to NSPS Subpart WWW, each owner or operator of an MSW landfill having a 

design capacity 2.5 million megagrams ("mg") and 2.5 million cubic meters ("m3

,,) 

must calculate its nonmethane organic compounds ("NMOC") emissions potential using 

procedures specified in.40 C.F.R. § 60.754 and report the results to EPA on an annual 

basis. See 40 C.F.R. §§ 60.752(b) and 60.757(b). 

8. 	 The annual NMOC emission rate report must include all the data, calculations, sample 

1 As adjusted for inflation under the Debt Collection Improvement Act and implementing 

regulations at 40 C.F.R. Part 19. 

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reports and measurements used to estimate annual emissions. See 40 C.F.R. 

§ 60.757(b)(2). 

9. 	 If the calculated NMOC emissions ~ 50 mg/yr, the owner or operator must submit a gas 

collection and control design plan ("design plan") within 1 year, and install a gas 

collection and control system ("GCCS") within 30 months of the first report indicating 

emissions ~ 50 mg NMOC/yr, unless the landfill performs site-specific Tier 2 or 3 

measurements that show NMOC emissions < 50 mg/yr. See 40 c.F.R. §§ 60.752(b) and 

60.757(c). 

10. 	 If the calculated NMOC emissions ~ 50 mg/yr and the owner or operator elects to 

perform Tier 2 NMOC sampling and analysis pursuant to 40 C.F.R. § 60.754(a)(3), a 

revised NMOC emission rate report, with the recalculated emission rate, based on Tier 2 

sampling and analysis, must be submitted to EPA within 180 days of the first calculated 

exceedance of 50 mg/yr. See 40 c.F.R. § 60.757(c)(1). 

II. 	 On January 30, 2006, EPA delegated authority to implement and enforce NSPS Subpart 

WWW to the State of Hawaii, Department of Health. 

III. GENERAL ALLEGATIONS 

12. 	 At all times relevant to this CAFO, WMH was a "corporation," incorporated under the 

laws of Delaware, and CH was a "municipality," and both were "person[s]" within the 

meaning of Section 302 of the Act. 

13. 	 At all times relevant to this CAFO, WMH was the operator and CH was the owner of the 

West Hawaii landfill, an MSW landfill located at 71-1111 Queen Kahumanu Hwy., 

Waikoloa, on the Island of Hawaii. 

14. 	 WMH commenced construction of the West Hawaii Landfill on or after May 30, 199I. 

15. 	 Beginning March 12, 1996, the West Hawaii Landfill became subject to NSPS Subpart 

WWW. 

16. 	 On March 12, 1996, the West Hawaii Landfill had a design capacity that exceeded 2.5 

million mg and 2.5 million m3

. 

17. 	 On June 9, 1996, WMH submitted an Initial Design Capacity Report and Initial NMOC 

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Emission Rate Report (collectively, "Initial Report") for the West Hawaii Landfill to 

EPA pursuant to 40 C.F.R. §§ 60.757(a)(1), 60.757(a)(2) and 60.757(b). 

18. 	 In the Initial Report for the West Hawaii Landfill, submitted by WMH to EPA on June 9, 

1996, Tier 1 calculations indicated that the NMOC emission rate < 50 mg/yr. 

19. 	 By letter to EPA dated August 29,2005, WMH voluntarily disclosed to EPA that WMH 

failed to provide annual NMOC reports since 2001 and failed to perform a Tier 2 test of 

NMOC emissions. After EPA review of WMH' s disclosure, EPA concluded that it did 

not satisfy the conditions of EPA's "Incentives for Self-Policing: Discovery, Disclosure, 

Correction and Prevention of Violations," 65 Fed. Reg. 19618 (April 11,2000). 

20. 	 EPA issued a Finding and Notice of Violation to Respondents dated April 4, 2006, 

Docket Number R9-06-07 ("the NOV"). 

21. 	 On April 18,2006, WMH submitted to a Tier 2 Sampling and Analysis Report, and a 

Fixed Gas Sampling and Analysis report. 

IV. SPECIFIC ALLEGATIONS 

22. 	 WMH or CH was required to submit Annual NMOC Emission Rate Reports for 2001, 

2002,2003,2004 and 2005 for the West Hawaii Landfill to EPA on an annual basis. 

23. 	 WMH and CH failed to timely submit Annual NMOC Emission Rate Reports for 2001, 

2002,2003,2004 and 2005 for the West Hawaii Landfill to EPA on an annual basis. 

24. 	 The failure of WMH and CH to timely submit Annual NMOC Emission Rate Reports for 

2001,2002,2003,2004 and 2005 for the West Hawaii Landfill to EPA on an annual 

basis constitutes five (5) violations of Section 111 of the Act and 40 C.F.R. §§ 60.757(b). 

25. 	 On August 8,2005, WMH completed Tier 1 calculations for the West Hawaii Landfill 

that revealed an NMOC emission rate ~ 50 mg/yr in 2002. 

26. 	 In April 2006, Tier 2 calculations revealed an NMOC emission rate for the West Hawaii 

Landfill < 50 Mg/yr in 2002. 

27. 	 WMH and CH failed to submit a revised NMOC emission rate report based on Tier 2 

sampling and analysis for the West Hawaii Landfill within 180 days of June 9,2002, or 

by December 9,2002. 

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28. WMH and CH also failed to submit a design plan for the West Hawaii Landfill to EPA 

with one year of June 9,2002 or by June 9, 2003, and failed to install a GCCS within 30 

months of June 9, 2002 or by December 9,2004. 

29. 	 The failures of WMH and CH described in the preceding two paragraphs constitute a 

violation of Section 111 of the Act and 40 c.F.R. § 60.757(c). 

V. RESPONDENTS' ADMISSIONS 

30. 	 Without trial or litigation of the issues or any adjudication of the facts set forth in this 

CAFO, Respondents (i) admit that EPA has jurisdiction over the subject matter of this 

CAFO and over Respondents; (ii) admit the general allegations contained in Section III 

of this CAFO; (iii) neither admit nor deny the specific allegations contained in Section IV 

of this CAFO; (iv) consent to the terms of this CAFO, including the assessment of the 

civil administrative penalty under Section VI and implementation of a Supplemental 

Environmental Project ("SEP") under Section VII of this CAFO; (v) waive any right to 

contest the allegations in this CAFO; and (vi) waive the right to appeal the proposed final 

order contained in this CAFO. 

VI. PENALTY ASSESSMENT 

31.· 	 In settlement of the violations and facts alleged in Section IV of this CAFO, and in 

consideration of the statutory penalty factors set forth in Section l13(e)(1) of the CAA, 

embodied in EPA's Clean Air Act Stationary Source Civil Penalty Policy ("Penalty 

Policy"), dated October 25, 1991, Respondents shall pay a civil administrative penalty of 

thirty-three thousand five hundred dollars ($33,500) within 30 calendar days after the 

effective date of this CAFO. Payment shall be made by electronic fund transfer ("EFT") 

or cashier's or certified check payable to the "Treasury, United States of America." 

Payment by EFT shall be transferred to the following address: 

Federal Reserve Bank of New York 

ABA =021030004 

Account =68010727 

SWIFT address =FRNYUS33 

33 Liberty Street 

New York NY 10045 

Field Tag 4200 of the Fedwire message should read, 

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"D 68010727 Environmental Protection Agency" 

Payment by cashier's or certified check shall be sent by certified mail, return receipt 

requested, to the following address: 

US Environmental Protection Agency 

Fines and Penalties 

Cincinnati Finance Center 

PO Box 979077 

St. Louis, MO 63197-9000 

The check shall note the case title and docket number. Concurrent with the delivery of 

payment, Respondents shall send a copy of the transfer or check to the following 

addresses: 


Brian P. Riedel 


Assistant Regional Counsel (ORC-2) 


U.S. Environmental Protection Agency 

Region 9 

75 Hawthorne Street 

San Francisco, CA 94105 

Regional Hearing Clerk (ORC-l) 

U.S. Environmental Protection Agency 

Region 9 

75 Hawthorne Street 

San Francisco, CA 94105 

32. 	 Payment of the above civil administrative penalty shall not be used by WMH or any other 

person as a tax deduction from WMH's federal, state, or local taxes. 

VII. SUPPLEMENTAL ENVIRONMENTAL PROJECT 

A. General Description 

33. 	 Respondents shall cause the completion of the following SEP, which the Parties agree is 

intended to secure significant environmental or public health protection and 

improvements, at the Kailua-Kona Landfill located approximately three miles north of 

Kailua-Kona on the Island of Hawaii. Respondents shall cause the completion of the 

work described in the attached SEP Workplan, dated March 14,2008, within 16 months 

of the filing date of this CAFO. The SEP Workplan describes the following work to be 

completed at the Kailua-Kona Landfill: a) a screening investigation of landfill conditions, 

and b) a demonstration of subsurface fire suppression using fire-retardant foam. 

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34. Respondents shall expend no less than $184,400 for completion of the SEP in accordance 

with the specifications set forth in the SEP Workplan. Respondents shall include 

documentation of the expenditures made in connection with the SEP as part of the SEP 

Completion Report. 

35. 	 Any expenditures made by WMH in implementing the SEP are, for purposes of federal 

law, neither tax-deductible expenditures nor eligible to be added to the basis of assets or 

property for depreciation purposes. WMH shall not use any expenditure associated with 

this SEP to obtain favorable federal tax treatment. 

36. 	 Each Respondent hereby certifies that, as of date of this Consent Agreement, it is not 

required to perform or develop the SEP by any federal, state or local law or regulation; 

. nor is it required to perform or develop the SEP by any other agreement, grant or as 

injunctive relief in this or any other case. Each Respondent further certifies that it has not 

received, and is not presently negotiating to receive, credit in any other enforcement 

action for the SEP. 

37. 	 Any public statement, oral or written, in print, film, or other media, made by either 

Respondent making reference to the SEP shall include the following language, "This 

project was undertaken in connection with the settlement of an enforcement action taken 

by the U.S. Environmental Protection Agency for violations of the Clean Air Act." 

B. SEP Completion Report 

38. 	 One or both Respondents shall submit a SEP Completion Report to EPA within 60 days 

after completion of the SEP required in this CAFO. Documentation required under this 

Paragraph shall be submitted to the following address: 

Brian P. Riedel 


Assistant Regional Counsel (ORC-2) 


U.S. Environmental Protection Agency 

Region 9 

75 Hawthorne Street 

San Francisco, CA 94105 

39. 	 The SEP Completion Report shall contain the following information: 

(i) 	 A detailed description of the SEP as implemented; 

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(ii) A description of any operating problems encountered and the solutions thereto; 

(iii) 	 Itemized costs; 

(iv) 	 Certification that the SEP has been fully implemented pursuant to the provisions 

of this CAFO; and 

(v) 	 A brief description of the environmental and public health benefits resulting from 

the implementation of the SEP (with a quantification of the benefits and pollutant 

reductions, to the extent feasible). 

40. 	 In the SEP Completion Report required by this CAFO, the Respondent or Respondents 

submitting the report shall sign and certify that the information contained in the report is 

true, accurate, and not misleading by signing the following statement: 

I certify under penalty of law that I have examined and am familiar 

with the information submitted in this document and all 

attachments and that, based on my inquiry of those individuals 

immediately responsible for obtaining the information, I believe 

that the information is true, accurate, and complete. 

c. EPA Acceptance of SEP Completion Report 

41. 	 After receiving the SEP Completion Report, EPA shall notify Respondents whether they 

have satisfactorily completed the SEP. If EPA has identified any deficiencies in the SEP 

Completion Report, EPA will notify the Respondents, in writing, regarding such 

deficiencies along with a grant of an additional thirty (30) days for Respondents to 

correct any such deficiencies. 

42. 	 EPA shall permit Respondents the opportunity to object in writing to the notification of 

deficiency given pursuant to this Paragraph within ten (10) business days of receipt of 

such notification. EPA and Respondents shall have an additional thirty (30) days from 

the receipt by EPA of the notification of objection to reach agreement on changes 

necessary to the SEP Completion Report and/or to the SEP, as appropriate. If agreement 

cannot be reached on any such issue within this thirty (30) day period, EPA shall provide 

a written statement of its decision on the adequacy of SEP Completion Report and/or SEP 

to Respondents, which decision shall be final and binding upon Respondents. 

Respondents agree to comply with any requirements imposed by EPA as a result of any 

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failure to comply with the terms of this CAFO. In the event the SEP Completion Report 

and/or SEP are not completed as contemplated herein, as determined by EPA, stipulated 

penalties shall be due and payable by Respondents to EPA in accordance with Section 

VIII of this CAFO. 

VIII. STIPULATED PENALTIES 

43. 	 In the event that the full assessed penalty required under Paragraph 31 is not postmarked 

on or before its due date, Respondents shall immediately pay the full assessed penalty, 

along with stipulated penalties in the amount of fifty thousand dollars ($50,000) 

immediately, plus interest and costs as allowed by law. 

44. 	 a. In the event that Respondents fail to comply with any of the terms or provisions of this 

CAFO relating to the performance of the SEP and/or to the extent that actual 

expenditures for the SEP do not equal or exceed the cost of the SEP described in 

Paragraph 33 above, Respondents shall be liable for stipulated penalties according to the 

provisions set forth below: 

(i) 	 Except as provided in subparagraph (ii) immediately below regarding a SEP 

which has not been completed satisfactorily pursuant to this Consent Agreement, 

Respondents shall pay a stipulated penalty to the United States in the amount of 

$100,000. 

(ii) 	 If the SEP is not completed in accordance with this Consent Agreement, but EPA 

determines that the Respondents A) made good faith and timely efforts to 

complete the project; and B) certify, with supporting documentation, that at least 

90 percent of the amount of money which was required to be spent was expended 

on the SEP, Respondents shall not be liable for any stipulated penalty with respect 

to SEP implementation. 

(iii) 	 If the SEP is completed in accordance with this Consent Agreement, but 

Respondents spent less than 90 percent of the amount of money required to be 

spent for the project, Respondents shall pay a stipulated penalty to the United 

States in the amount of $20,000. 

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(iv) If the SEP is completed in accordance with this Consent Agreement, and 

Respondents spent at least 90 percent of the amount of money required to be spent 

for the project, Respondents shall not be liable for any stipulated penalty with 

respect to SEP implementation. 

(v) 	 For failure to submit the SEP Completion Report required by Section VII.B. of 

this Consent Agreement, Respondents shall pay a stipulated penalty in the amount 

of $1,000 for each day after the due date until the report is submitted. 

b. The determinations of whether the SEP and/or SEP Completion Report have been 

satisfactorily completed and whether Respondents has made a good faith, timely effort to 

implement the SEP and/or SEP Completion Report shall be in the sole discretion of the 

EPA. 

c. Respondents shall pay stipulated penalties not more than fifteen (15) business days 

after receipt of written demand by EPA for such penalties. Method of payment shall be in 

accordance with the provisions of Paragraph 31 of this Consent Agreement. Interest and 

late charges shall be paid as stated in Paragraph 46 of this Consent Agreement. 

d. Subject to the provisions of Section IX (Effect of SettlementlRetention of Rights), 

nothing in this CAFO shall be construed as prohibiting, altering or in any way limiting 

the ability of EPA to seek any other remedies or sanctions available by virtue of 

Respondents' violation of this Agreement or of the statutes and regulations upon which 

this Agreement is based, or for the violation by either or both Respondent(s) of any 

applicable provision of law. 

45. 	 Additionally, Respondents' failure to pay any of the penalty installments by its due date 

may lead to any or all of the following actions: 

a. The debt being referred to a credit reporting agency, a collection agency, or the 

Department of Justice for filing of a collection action in the appropriate United States 

District Court. 40 C.F.R. §§ 13.13, 13.14 and 13.33. In any such collection action, the 

validity, amount, and appropriateness of the assessed penalty and of this CAFO shall not 

be subject to review. 

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b. The debt being collected by administrative offset (i.e., the withholding of money 

payable to the United States to, or held by the United States for, a person to satisfy the 

debt the person owes the Government), which includes, but is not limited to, referral to 

the Internal Revenue Service for offset against income tax refunds. 40 C.F.R. Part 13, 

Subparts C and H. 

c. EPA may (i) suspend or revoke the licenses or other privileges of either or both 

Respondent(s); (ii) suspend or disqualify either or both Respondent(s) from doing 

business with EPA or engaging in programs EPA sponsors or funds; (iii) convert the 

method of payment under a grant or contract from an advanced payment to a 

reimbursement method; or (iv) revoke a grantee's or contractor's letter-of-credit. 40 

C.F.R. §§ 13.14 and 13.17. 

46. 	 In accordance with the Debt Collection Act of 1982, 31 U.S.C. § 3717, and 40 C.F.R. 

Part 13, interest, penalties charges, and administrative costs will be assessed against the 

outstanding amount that Respondents' owe to EPA for Respondents' failure to pay in full 

the civil penalty by its due date. Interest will be assessed at an annual rate that is equal to 

the rate of current value of funds to the United States Treasury (i.e., the Treasury tax and 

loan account rate) as prescribed and published by the secretary of the Treasury in the 

Federal Register and the Treasury Fiscal Requirements Manual Bulletins. 40 c.F.R. 

§ 13.11(a)(1). Penalty charges will be assessed monthly at a rate of 6% per annum. 40 

c.F.R. § 13.11(c). Administrative costs for handling and collecting Respondent's 

overdue debt will be based on either actual or average cost incurred, and will include both 

direct and indirect costs. 40 c.F.R. § 13.11(b). In addition, if this matter is referred to 

another department or agency (e.g., the Department of Justice, the Internal Revenue 

Service), that department or agency may assess its own administrative costs, in addition 

to EPA's administrative costs, for handling and collecting Respondent's overdue debt. 

IX. EFFECT OF SETTLEMENTIRETENTION OF RIGHTS 

47. In accordance with 40 C.F.R. § 22.18(c), this CAFO only resolves Respondents' liability 

for federal civil penalties for the violations and facts alleged in this CAFO. Nothing in 

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this CAFO is intended to or shall be construed to resolve (i) any civil liability for 

violations of any provision of any federal, state, or local law , statute, regulation, rule, 

ordinance, or pennit not alleged in this CAFO; or (ii) any criminal liability. In addition to 

any other authority, right, or remedy available to EPA, EPA reserves any and all 

authorities, rights, and remedies available to it (including, but not limited to, injunctive or 

other equitable relief or criminal sanctions) to address any violation of this CAFO or any 

violation not alleged in this CAFO. 

48. 	 This CAPO does not exempt, relieve, modify, or affect in any way Respondents' duty to 

comply with all applicable federal, state, and local laws, regulations, rules, ordinance, and 

pennits. 

x. FORCE MAJEURE 

49. 	 If any event occurs which causes or may cause delays in the completion of the SEP as 

required under this Consent Agreement, Respondents shall notify Complainant in writing 

not more than 10 days after the delay or Respondents' knowledge of the anticipated 

delay, whichever is earlier. The notice shall describe in detail the anticipated length of 

the delay, the precise cause or causes of the delay, the measures taken and to be taken by 

Respondents to prevent or minimize the delay, and the timetable by which those 

measures will be implemented. The Respondents shall adopt all reasonable measures to 

avoid or minimize any such delay. Failure by Respondents to comply with the notice 

requirements of this paragraph shall render this paragraph void and no effect as to the 

particular incident involved and constitute a waiver of the Respondents' right to request 

an extension of its obligation under this Consent Agreement based on such incident. 

50. 	 If the parties agree that the delay or anticipated delay in compliance with this Consent 

Agreement has been or will be caused by circumstances entirely beyond the control of 

Respondents, the time for performance hereunder may be extended for a period no longer 

than the delay resulting from such circumstances. In such event, the parties shall 

stipulate to such extension of time. 

51. 	 In the event that the EPA does not agree that a delay in achieving compliance with the 

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requirements of this CAFO has been or will be caused by circumstances beyond the 

control of the Respondents, EPA will notify Respondents in writing of its decision and 

any delays in the completion of the SEP shall not be excused. 

52. 	 The burden of proving that any delay is caused by circumstances entirely beyond the 

control of the Respondents shall rest with the Respondents. Increased costs or expenses 

associated with the implementation of the actions called for by this Consent Agreement 

shall not, in any event, be a basis for changes in this Consent Agreement or extensions of 

time under Paragraph 50 of this CAFO. Delay in achievement of one interim step shall 

not necessarily justify or excuse delay in achievement of subsequent steps. 

XI. ATTORNEYS' FEES AND COSTS 

53. 	 Each party shall bear its own attorney's fees, costs, and disbursements incurred in this 

proceeding, except as provided for elsewhere in this Consent Agreement. 

XII. EFFECTIVE DATE 

54. 	 In accordance with 40 c.F.R. §§ 22.18(b)(3) and 22.31(b), this CAFO shall be effective 

on the date that the Final Order contained in this CAFO, having been approved and 

issued by either the Regional Judicial Officer or Regional Administrator, is filed. 

XIII. BINDING EFFECT 

55. 	 The undersigned representative of Complainant and the undersigned representatives of 

each Respondents each certify that he or she is fully authorized to enter into the terms and 

conditions of this CAFO and to bind the party he or she represents to this CAFO. 

56. 	 The provisions of this CAFO shall apply to and be binding upon Respondents and each of 

its officers, directors, employees, agents, trustees, servants, authorized representatives, 

successors, and assigns. 

XIV. MISCELLANEOUS 

57. 	 In any future enforcement action, any violation alleged in this CAFO may be considered 

a "prior violation," as that term is used in the Penalty Policy. 

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09/23/2008 17:33 8089518085 ENVIRONMENTAL MGMT PAGE 03/04 

1 


FOR THE UNlTED STATES ENVIRONMENTAL 


2 PROTECTION AGENCY, REGION 9: 


3 


4 Date1..-~2008 

Director, Air Division 


U. S. Environmental Protection Agency, 


6 Region 9 


75 Hawthorne Street 


7 San Francisco, California 94105 


8 


POR WASTE MANAGEMENT OF HAWAIT, INC. 


9 


Date: 1;2-/2008 

11 


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13 FOR THE COUNTY OF HAW All 


14 


Date: _1_12008 
 .. 

16 


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APPROVED AS TO 19 fORM ~ND lEGAUTY: , 

21 ~OIJI'ISEL cOUNTf OF ~A\' 22 O'1t~~~}_;'ALP 'h , ........ -­

23 


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bEBORAHJORDAN 

14 


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FINAL ORDER 

EPA Region 9, Waste Management of Hawaii, Inc., and the County of Hawaii, 

having entered into the foregoing Consent Agreement, 

IT IS HEREBY ORDERED that this Consent Agreement and Final Order 

Pursuant to 40 C.F.R. §§ 22.13 and 22.18 (Docket No. CAA-09-2008-00) Oe 1ntered, and 

Respondents shall pay a civil administrative penalty and cause completion of the Supplement 

United States Environmental 

Protection Agency, Region IX 

75 Hawthorne Street 

San Francisco, California 94105-3143 

Environmental Project in accordance with the terms set forth in the Consent Agreement. 

Date: '!:J2.j12008 

Steven L. Ja 

Regional Judicial f' er 

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In the Matter of: Waste Management of Hawaii, Inc. and County of Hawaii 

CERTIFICATE OF SERVICE 


I certify that the original of the foregoing Consent Agreement and Final Order Pursuant to 40 

c.F.R. §§ 22.13 and 22.18, Docket No. CAA-09-20089 ~w~s ~laced in the United States Mail, 

certified mail, return receipt requested, addressed to the following persons authorized to receive 

service of process in this matter: 

Mr. Andrew M. Kenefick 


Senior Legal Counsel 


Waste Management 


Western Group Legal Department 


801 2nd Avenue, Suite 614 


Seattle, W A 98104 


Mr. Ivan Torigoe, Esq. 


County of Hawai'i 


Office of the Corporation Counsel 


101 Aupuni Street, Suite 325 


Hilo, Hawai'i 96720 


Certified Return Receipt No. 7006 2150 0001 4941 1973 

Date:~_l2tJu8' ~r:p 2 9 '2f1.'1Q BY:cJ(lwf~ E {!~ DANIELLE CARR 

Regional Hearing Clerk 

United States Environmental 

Protection Agency, Region 9 

75 Hawthorne Avenue 

San Francisco, California 94105-3143