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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 FOR HEARING 

) 

) 

Proceeding under Section 113 of the ) 

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) of the 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, in tum, re-delegated the authority to issue such 

complaints to Complainant, the Director of the Air Division. 

Pursuant to Sections 111 and 114 of the Act, 42 U.S.c. §§ 7412 and 7414, the 

Administrator promulgated regulations that govern the monitoring of emissions 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 of Performance 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) ofthe Act, 

42 U.S.c. § 7602(e). 
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n the Matter of Stockton 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 boiler to 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 is subject to the requirements and prohibitions set forth at Subpart Da. 


6. Among other requirements, Subpart Da requires the owner or operator of an affected 


facility to continuously monitor the opacity of emissions 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 by reference. 


8. On or about March 28,2009, the equipment used by Stockton Cogen to monitor the 


opacity of emissions from the affected facility at SCC ceased to function. 


9. When the opacity monitor ceased to function, Stockton Cogen could no longer monitor 


the opacity of emissions from the affected facility at SCC. 


10. Stockton Cogen's failure to monitor the opacity of emissions 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 of emissions from the affected facility at 


SCC cons!ituted a violation of40 C.F.R. § 60.49Da(a) and the Clean Air Act for each day that 


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 

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n the Matter of Stockton CoGen 

of up to Twenty-Five Thousand Dollars ($25,000) per day for each violation of the 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 per day not to 

exceed a total penalty of $295,000 for violations occurring on or after January 12, 2009, 

pursuant to the Civil Monetary Penalty 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, EPA proposes the assessment of a civil penalty in the amount of SEVENTY-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) of the Act, 42 U.S.C. § 7413(e), and in accordance with EPA's "Clean 

Air Act Stationary Source Civil Penalty Policy" ("Penalty Policy") dated October 25, 1991. A 

copy of the Penalty Policy is enclosed with this Complaint. This section explains the rationale 

behind the penalty assessed for Count I and the various penalty factors 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 on the 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 Penalty Policy. 

15. The second component of the civil penalty is valuing the gravity of the alleged violation. 

The gravity component of the civil penalty addresses the gravity of each violation. and assesses a 

penalty based 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 of the environment, length ofthe violation, and importance to the regulatory scheme. 

As calculated under the Penalty .Policy in this situation, the penalty for sensitivity of the 

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 

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1 n the Matter of Stockton CoGen 

2 components is $28,000. 

3 16. In addition, in accordance with Section 113( e) ofthe Act, the Penalty Policy requires the 

4 assessment of an additional penalty based on the "size ofthe violator" as a deterrent to future 

5 violations. The Penalty Policy assigns a penalty amount based on the net worth of the 

6 Respondents. However, if "size of violator" penalty provided in the Penalty Policy exceeds the 

7 sum ofthe economic benefit and gravity components, as in this case, assessment for the "size of 

8 violator" penalty will equal the sum of the 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 penalty of 

11 $56,000 assessed for gravity. In accordance with the Civil Monetary Penalty Inflation 

12 Adjustment Rule at 40 c.P.R. Part 19, this gravity penalty amount is adjusted by 41.63%, 

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 provided in 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 in this Complaint or to contest the 

19 appropriateness of the proposed penalty., Any hearing 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 of Civil Penalties and the 

22 Revocation/Termination or Suspension ofPermits ("Consolidated Rules ofPractice"), 40 C.P.R. 

23 Part 22. A copy ofthe Consolidated Rules of Practice is enclosed with this Complaint. 

24 You must file a written Answer within thirty (30) days of receivine this Complaint 

25 to avoid beine found in default, which constitutes an admission of all facts alleeed in the 

26 Complaint and a waiver of the right to a hearing, and to avoid having the above penalty 

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n the Matter of Stockton CoGen 

assessed without further proceedinf:s. If you 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 any knowledge. If you have 

no knowledge of a 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, 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 


USEP A, Region IX 


75 Hawthorne Street 


San Francisco, CA 94105 

In addition, please send a copy of the Answer and all other 

documents that you file in this action to: 

Daniel Reich 


Assistant Regional Counsel 


Office of Regional Counsel (ORC-2) 


USEP A, 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 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 Complaint is issued. 

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n the Matter of Stockton CoGen 

INFORMAL SETTLEMENT CONFERENCE 

EP A 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 Daniel Reich, the EP A att~rney assigned 

to this case, regarding the facts ofthis case, the amount ofthe proposed penalty, and the 

possibility of settlement. 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 any process 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 of dispute resolution does not divest the Presiding 

Officer ofjurisdiction nor does it automatically stay the proceeding. 

CONSENT AGREEMENT AND FINAL ORDER 

EPA has the authority, where appr.opriate, to modify the amount ofthe 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. 

Date: iJ;).12009 

Dl r, Air Division 

U.S. Environmental Protection Agency, Region IX 

75 Hawthorne Street 

San Francisco, California 

==~~~=JO=RD==AN~~+-~~~--

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CERTIFICATE OF SERVICE 

I certify that the original of the foregoing Complaint and Notice of Opportunity 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 copy thereof was 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 

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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: Docket No. 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 of a Complaint and Notice of Opportunity for Hearing 

("Complaint") filed pursuant to Section I 13(d) of the 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 of the Act and the regulations 

promulgated pursuant to Section 111 of the Act at 40 C.F.R. Part 60, Subpart Da. These 

violations are set forth more specifically in the Complaint. 

You should be aware of the part of the Complaint entitled "Opportunity to 

Request a Hearing." You are required to respond to this Complaint within thirty (30) 

days of receipt of the Complaint. If you fail to file an Answer to this Complaint with the 

Regional Hearing Clerk within thirty (30) days of receipt, you may be found to be in 

default, pursuant to 40 C.F .R. § 22.17, which shall constitute an admission of facts 

alleged in the Complaint and a waiver of your 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 of the Consolidated Rules of Practice Governing the Administrative 

Assessment of Civil Penalties and the Clean Air Act Stationary Source Civil Penalty 

Policy are enclosed. 

Printed on Recycied Paper 
If you 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 (SJV APCD) 

Mr. James Ryden (CARB) 

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