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### 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 9 BEFORE THE ADMINISTRATOR J.:':," ._. _.;,**~~** :J**~** i**,;.~ ~;~**  ) [\EGIOriAL i,;l:.!\[W,:; CLERi( 

### In the Matter of: ) Docket No. CAA-09-2009-0025 ) 

### Stockton CoGen (I), Inc. ) COMPLAINT AND NOTICE OF ) OPPORTUNITY FORHEARING ) ) 

### Proceeding under Section 113 ofthe ) 

### Clean Air Act, 42 U.S.C. 

### § 7413 ) )



### PRELIMINARY STATEMENT Complainant, the Director ofthe Air Division, United States Environmental Protection Agency ("EPA"), Region 9, issues this Complaint and Notice ofOpportunity for Hearing ("Complaint") against Respondent, Stockton CoGen (I), 

### Inc. ("Stockton CoGen"), pursuant to Section 113(d) ofthe Clean Air Act ("CAA" or the "Act"), as amended, 42 U.S.C.§ 7413(d). The Administrator ofEPA ("Administrator") delegated the authority to issue civil administrative complaints such as this one in California to the Regional Administrator of Region 9 and the Regional Administrator, intum, re-delegated the authority to issue such complaints to Complainant, the Director ofthe Air Division. Pursuant to Sections 111 and 114 ofthe Act, 42 U.S.c. §§ 7412 and 7414, the Administrator promulgated regulations that govern the monitoring ofemissions from electric utility steam generating units on which construction is commenced after September 18, 1978. See 40 C.F.R. Part 60, Subpart Da

- "Standards ofPerformance for Electric Utility Steam Generating Units for Which Construction is Commenced After September 18, 1978" ("Subpart Da"). GENERAL ALLEGATIONS 1. 

### At all times relevant to this Complaint, Stockton CoGen has been and is a corporation organized under the laws ofDelaware, and doing business in California, 2. Stockton CoGen is a "person" within the definition set for in Section 302(e) oftheAct, 42 U.S.c. § 7602(e).1 2 3 4 5 6 7 8 9 10 11 12 13 14 

### 15 16 17 18 19 20 21 22 23 24 25 26 27 28 n theMatter ofStockton CoGen 3. At all times relevant to this Complaint, Stockton CoGen has owned and/or operated and/or controlled the facility known as Stockton Cogen Company ("SCC"), which is**locate~** at 1010 Zephyr St., Stockton, California, and is the "owner or operator" ofthe SCC as defined at 40 C.P.R. § 60.2. 4. The SCC uses a coal-fired, fluidized-bed boilerto generate electricity and heat used at a companion facility to produce industrial gas products. 5. This coal-fired, fluidized-bed boiler at the SCC is an "affected facility" as defined at40 c.P.R. § 60.2 and issubject to the requirements and prohibitions set forth at Subpart Da. 6. Among otherrequirements, Subpart Darequires the owner or operator ofan affected facility to continuouslymonitor the opacity ofemissions from the affected facility. See 40 C.F.R. § 60.49Da(a). COUNT I: FAILURE TO CONTINUOVSL Y MONITOR OPACITY OF EMISSIONS 7. Paragraphs 1 through 6 are realleged and incorporated herein byreference. 

### 8. On or about March 28,2009, the equipment used by Stockton Cogen to monitor the opacity ofemissions from the affected facility at SCC ceased to function. 9. Whenthe opacitymonitor ceasedto function, Stockton Cogen couldno longer monitor the opacity ofemissions from the affected facility at SCC. 10. Stockton Cogen's failure to monitor the opacity ofemissions from the affected facility at SCC continued until on or about May 13, 2009, at which time Stockton Cogen installed a new opacity monitor. 11. Stockton Cogen's failure to monitor the opacity ofemissions from the affected facility at SCC cons!ituted a violation of40 C.F.R. § 60.49Da(a) and the Clean Air Act for each daythat such failure to monitor occurred. PROPOSED CIVIL PENALTY 12. Section 113(d) ofthe Act, 42 V.S.c. § 7413(d), authorizes a civil administrative penalty

- 2 ­1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 n the Matter ofStockton CoGen ofup to Twenty-Five Thousand Dollars ($25,000) per day for each violation ofthe Act, provided that the total amount ofpenalty assessed does not exceed Two Hundred Thousand Dollars ($200,000). These maximum amounts have been adjusted to $37,500 perday not to exceed a total penalty of$295,000 for violations occurring on or after January 12, 2009, pursuant to the Civil MonetaryPenalty Inflation Adjustment Rule at 40 C.F.R. Part 19, which implements the Federal Civil Penalties Inflation Adjustment Act of 1990,28 U.S.C § 2461. In this case, EPAproposes the assessment ofa civilpenaltyin the amount ofSEVENTY-NINE THOUSAND, THREE HUNDRED DOLLARS ($79,300) against Stockton Cogen. 13. This civil penalty is proposed after consideration ofthe statutory assessment factors set forth at Section 113(e) ofthe Act, 42 U.S.C. § 7413(e), and in accordance with EPA's "Clean AirAct Stationary Source Civil PenaltyPolicy" ("PenaltyPolicy") dated October 25, 1991. A copy ofthe PenaltyPolicyis enclosed with this Complaint. This section explains the rationale behind the penalty assessed for Count I and the various penaltyfactors and adjustments that

were used in the calculation ofthe total penalty amount. 14. The civil penalty has two components: economic benefit and gravity. The economic benefit is based onthe value that the alleged violator realized from delaying or failing to comply with the law. In this action, the economic benefit is $0, as calculated under the PenaltyPolicy. 15. The second component ofthe civil penalty is valuing the gravity ofthe alleged violation. The gravity component ofthe civil penalty addresses the gravity ofeach violation. and assesses a penaltybased on the size ofthe violator. Count I alleges that Stockton Cogen violated 40 C.F.R. § 60.49Da(a). Three gravity components from the Penalty Policy apply to this situation: sensitivity ofthe environment, length ofthe violation, and importance to the regulatory scheme. As calculated under the Penalty.Policy in this situation, the penaltyfor sensitivity ofthe environment is $ 5,000, the penalty for length ofthe violation is $8,000, and the penalty for the importance to the regulatory scheme is $15,000. Thus the total penalty for these ,three gravity

- 3 ­1 n the Matter ofStockton CoGen 2 components is $28,000. 3 16. In addition, in accordance with Section 113(e) ofthe Act, the PenaltyPolicyrequires the 4 assessment ofan additional penaltybased on the "size ofthe violator" as a deterrent to future 5 violations. The PenaltyPolicy assigns a penalty amount based onthe net worth ofthe 6 Respondents. However, if"size ofviolator" penaltyprovided inthe PenaltyPolicy exceeds the 7 sum ofthe economic benefit and gravity components, as in this case, assessment for the "size of 8 violator" penaltywill equal the sum ofthe economic benefit and gravity components. 9 Consequently, the "size ofviolator" penalty in this case is $28,000. Combining the penalty 1

0 assessed for Count I and the penalty assessed for the size ofviolator results in a penaltyof 11 $56,000 assessed for gravity. In accordance with the Civil MonetaryPenaltyInflation 12 Adjustment Rule at 40 c.P.R. Part 19, this gravitypenalty amount is adjusted by41.63%, 13 resulting in a penalty of$79,313. Since there is no economic benefit calculated in this case, the 14 total civil penalty against Respondents is $79,313, which is rounded to the nearest hundred for a 15 total penalty of$79,300. 16 NOTICE OF OPPORTUNITY TO REQUEST A HEARING 17 As providedin Section 113(d) ofthe Act, 42 U.S.c. § 7213(d), you have the right to 18 request a formal hearing to contest any material fact set forth inthis Complaint orto contest the 19 appropriateness ofthe proposed penalty., Anyhearing requested will be conducted in 20 accordance with the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the Consolidated 21 Rules of Practice Governing the Administrative Assessment ofCivil Penalties and the 22 Revocation/Termination or Suspension ofPermits ("Consolidated Rules ofPractice"), 40 C.P.R. 23 Part 22. A copy ofthe Consolidated Rules ofPractice is enclosed with this Complaint. 24 You must file a written Answer within thirty (30) days ofreceivine this Complaint 25 to avoid beine found in default, which constitutes an admission ofall facts alleeed in the 26 Complaint and a waiver ofthe right to a hearing, and to avoid having the above penalty 27 28 - 4 ­1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 

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### 28 n the Matter ofStockton CoGen assessed without further proceedinf:s. Ifyou choose to file an Answer, you are required by the Consolidated Rules ofPractice to clearly and directly admit, deny, or explain each ofthe factual allegations contained in this Complaint to which you have anyknowledge. Ifyou have

no knowledge ofa particular fact and so state, the allegation is considered denied. Failure to deny any ofthe allegations in this Complaint will constitute an admission ofthe undenied allegation. The Answer shall also state the circumstances and arguments, ifany, which are alleged to constitute the grounds ofdefense, and shall specifically request an administrative hearing, if desired. Ifyou deny anymaterial fact or raise any affirmative defense, you will be considered to have requested a hearing. The Answer must be filed with: Regional Hearing Clerk USEP A, Region IX 75 Hawthorne Street San Francisco, CA 94105 

### In addition, please send a copy ofthe Answer and all other documents that you file in this action to: Daniel Reich Assistant Regional Counsel Office ofRegional Counsel (ORC-2) USEPA, Region IX 75 Hawthorne Street San Francisco, CA 94105 Mr. Reich is the attorney assigned to represent EPA in this matter. His telephone number is (415)972-3911. You are further informed that the Consolidated Rules ofPractice prohibit.any ex parte (unilateral) discussion ofthe merits ofany action with the Regional Administrator, Regional Judicial Officer, Administrative Law Judge, or any person likelyto advise these officials in the decision ofthe case, after the Complaint is issued.

- 5 ­1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 n the Matter ofStockton CoGen INFORMAL SETTLEMENT CONFERENCE EPA encourages all parties against whom a civil penaltyis proposed to pursue the possibilityofsettlement through informal conferences. Therefore, whether ornot you request a hearing, you mayconfer informallywith EPA through Daniel Reich, the EPA**att~rney** assigned

to this case, regarding the facts ofthis case, the amount ofthe proposedpenalty, and the possibilityofsettlement. An informal settlement conference does not, however, affect your obligation to file an Answer to this Complaint. ALTERNATIVE DISPUTE RESOLUTION The parties also may engage in anyprocess within the scope ofthe Alternative Dispute Resolution Act, 5 U.S.C. § 581 et seq., which may**facilit~te** voluntary settlement efforts. Dispute resolution using alternative means ofdispute resolution does not divest the Presiding Officer of jurisdictionnor does it automatically staythe proceeding. CONSENT AGREEMENT AND FINAL ORDER EPA has the authority, where appr.opriate, to modifythe amount ofthe proposed penalty to reflect any settlement reached with you in an informal conference orthrough alternative dispute resolution. The terms ofsuch an agreement would be embodied in a Consent Agreement and Final Order. A Consent Agreement signed bybothparties wouldbe binding as to all terms and conditions specified therein when the Regional Judicial Officer signs the Final Order.

Date:

# iJ;).12009 Dl r, Air Division U.S. Environmental Protection Agency, Region IX 75 Hawthorne Street SanFrancisco, California

# ~**==~~~=JO=RD==AN~~+-~~~--**

- 6 ­1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 n the Matter ofStockton CoGen CERTIFICATE OF SERVICE I certify that the original ofthe foregoing Complaint and Notice ofOpportunity for Hearing, Docket No. CAA-09-2009-0025, was hand delivered to the Regional Hearing Clerk, United States Environmental Protection Agency

- Region IX, 75 Hawthorne Street, San Francisco, California 94105, and that a true and correct copythereofwas placed in the United States Mail, certified mail, return receipt requested, addressed to the following address: David J. Taylor President 7201 Hamilton Blvd Allentown, PA 18195-9642

Certified Return Receipt No. 7000 0520 0021 6108 1780



### ,**PET~E~=B=O=RJ~~~--~r--------** Air D·vision (Air-5) Date:!lJ 

### 30/2009 By:

Unit d States Environm al Protection Agency, Region IX 75 Hawthorne Avenue San Francisco, California 94105-3143

- 7 ­UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX 75 Hawthorne Street San Francisco, CA 94105·3901

September 29,2009 CERTIFIED MAIL No. 700005200021 6108 1780 RETUR

..N RECEIPT REQUESTED IN REPLY: AIR-5 REFER TO: DocketNo. CAA-09-2009-0025 Mr. David J. Taylor President Stockton CoGen (1), Inc. 7201 Hamilton Blvd. Allentown, P A 18195-9642 Dear Mr. Taylor: Enclosed is a copy ofa Complaint and Notice ofOpportunity for Hearing ("Complaint") filed pursuant to Section I 13(d) ofthe Clean Air Act, 42 U.S.C. §§ 7401­ 7671q (1991)(the "Act"). The Complaint alleges that Stockton CoGen (I), Inc. ("Stockton CoGen") violated Sections 111 and 114 ofthe Act and the regulations promulgated pursuant to Section 111 ofthe Act at 40 C.F.R. Part 60, Subpart Da. These violations are set forth more specifically in the Complaint. You should be aware ofthe part ofthe Complaint entitled "Opportunity to Request a Hearing." You are required to respond to this Complaint within thirty (30) days ofreceipt ofthe Complaint. Ifyou fail to file an Answer to this Complaint with the Regional Hearing Clerk within thirty (30) days ofreceipt, you maybe found to be in default, pursuant to 40 C.F.R. § 22.17, which shall constitute an admission offacts alleged in the Complaint and a waiver ofyour right to a hearing. The proposed civil penalty shall become due and payable thirty (30) days after a final order is issued upon default.Copies ofthe Consolidated Rules ofPractice Governing the Administrative Assessment ofCivil Penalties and the Clean Air Act Stationary Source Civil Penalty Policy are enclosed.

Printed on Recycied PaperIfyou wish to discuss this Complaint, you may contact Mark Sims ofthe Air Enforcement Office at (415) 972-3965, or have your attorney contact Daniel Reich ofthe Office ofRegional Counsel at (415) 972-3911. Thank you for your cooperation in this matter.

# ~if-1>~**~bOrah** Jordan 

# 0 Director, Air Division Enclosure

cc: Mr. Seyed Sadredin (SJVAPCD) Mr. James Ryden (CARB)

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