IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. )

)

PURE EARTH RECYCLING, Inc. (f/k/a )

Casie Ecology Oil Salvage, Inc. and )

Mid-Atlantic Recycling Technologies, Inc.), )

Civil Action No.

)

Defendant. )

)

COMPLAINT

Plaintiff, the United States of America, by the authority of the Attorney General of the

United States and through the undersigned attorneys, acting on behalf of the Administrator of the

United States Environmental Protection Agency ("EPA"), alleges, that until at least August 1,

2009, as follows:

NATURE OF ACTION

1. The United States brings this civil action for injunctive relief and the assessment of

penalties pursuant to Section 3008 of the Solid Waste Disposal Act, which has been amended by

various laws including the Resource Conservation and Recovery Act and the Hazardous and

Solid Waste Amendments (hereinafter referred to collectively as "RCRA"), 42 U.S.C. § 6928,

against the Defendant for violating the requirements of RCRA and its implementing regulations

and/or the federally authorized New Jersey regulations concerning hazardous waste.

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JURISDICTION, VENUE AND AUTHORITY 

2. Jurisdiction is vested in this Court pursuant to Section 3008 of RCRA, 42 U.S.C. § 6928;

and 28 U.S.C. §§ 1331, 1345, and 1355.

3. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and (c) and 1395(a),

RCRA Section 3008, 42 U.S.C. § 6928, because this action arises from violations of RCRA and

its implementing regulations and/or the federally authorized New Jersey regulations concerning

management of hazardous waste in Vineland, New Jersey.

4. Authority to bring this action is vested in the United States Department of Justice

pursuant to Section 3008(a) of RCRA, 42 U.S.C. § 6928(a), and 28 U.S.C. §§ 516 and 519.

NOTICE 

5. Notice of the commencement of this action has been given to the New Jersey Department

of Environmental Protection ("NJDEP"), pursuant to Section 3008(a)(2) of RCRA, 42 U.S.C. §

6928(a)(2).

DEFENDANT AND ITS CORPORATE HISTORY 

6. Defendant Pure Earth Recycling, Inc. ("PER") is a corporation. PER is a "person" within

the meaning of Section 1004(15) of RCRA, 42 U.S.C. § 6903(15), and 40 C.F.R. § 260.10

(1993), as incorporated by reference by N.J.A.C. 7:26G-4.1(a).

7. PER is a wholly owned subsidiary of Pure Earth, Inc. ("Pure Earth"). Pure Earth is a

corporation, and is a "person" within the meaning of Section 1004(15) of RCRA, 42 U.S.C. §

6903(15), and 40 C.F.R. § 260.10 (1993), as incorporated by reference by N.J.A.C. 7:26G-4.1(a).

8. In or about March 2007, Pure Earth acquired all the common stock of two corporations:

Casie Ecology Oil Salvage, Inc. ("Casie") and Mid-Atlantic Recycling Technologies, Inc.

("MART").

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9. Casie conducted business at a facility at 3209 N. Mill Road, Vineland, New Jersey ("the

Casie Facility") starting in approximately 1982. Casie was a "person" within the meaning of

Section 1004(15) of RCRA, 42 U.S.C. § 6903(15), and 40 C.F.R. § 260.10 (1993), as

incorporated by reference by N.J.A.C. 7:26G-4.1(a).

10. MART conducted business at a facility at 3137 Chammings Court, Vineland, New Jersey

("the MART Facility") starting in approximately 1996. MART was a "person" within the

meaning of Section 1004(15) of RCRA, 42 U.S.C. § 6903(15), and 40 C.F.R. § 260.10 (1993), as

incorporated by reference by N.J.A.C. 7:26G-4.1(a).

11. After their acquisition by Pure Earth, Casie and MART continued operations at the Casie

and Mart Facilities, respectively, and also began conducting these operations under the

respective names Pure Earth Treatment, Inc. and Pure Earth Recycling, Inc.

12. In July 2009, MART legally changed its name to PER.

13. Hereinafter, for all times relevant to this Complaint, the MART Facility will be referred to

as the "MART/PER Facility," and all references to "MART/PER" shall mean defendant PER as

the owner/operator of the MART/PER Facility.

14. In July 2009, Casie legally changed its name to Pure Earth Treatment, Inc. ("PET"). In

December 2009, PET was merged into PER. PER is the successor in interest to PET. PER

continues to conduct operations at the Casie Facility.

15. Hereinafter, for all times relevant to this Complaint, the Casie Facility will be referred to

as the "Casie/PER Facility," and all references to "Casie/PER" shall mean defendant PER as the

owner/operator of the Casie/PER Facility, and as the successor to the predecessor

owner/operator, PET.

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STATUTORY AND REGULATORY FRAMEWORK

16. RCRA, 42 U.S.C. § 6901 et seq., establishes a comprehensive federal regulatory program

for the management of hazardous waste from "cradle to grave" to protect human health and the

environment.

17. The Administrator of EPA, pursuant to Sections 3002(a) and 3004(a) of RCRA, 42

U.S.C. §§ 6922(a) and 6924(a), promulgated regulations setting forth standards for generators

and management of hazardous waste. These regulations are set forth in 40 C.F.R. Parts 260

through 266, 268, and 270. These provisions, among other requirements, mandate that

hazardous waste be properly identified, safely managed at authorized facilities, transported and

burned as hazardous waste, and/or otherwise treated, stored or disposed of pursuant to detailed

regulatory requirements intended to protect human health and the environment.

18. Section 3005 of RCRA, 42 U.S.C. § 6925 requires facilities that treat, store or dispose of

hazardous waste ("TSD Facilities") to obtain a hazardous waste permit or qualify for interim

status. The regulatory standards for permitted TSD facilities and/or for facilities that came into

existence after November 19, 1980 are set forth in 40 C.F.R. Part 264. Similar regulatory

standards for interim status TSD facilities and/or for facilities in existence on or before

November 19, 1980 are set forth in 40 C.F.R. Part 265.

19. Pursuant to Section 3006(b) of RCRA, 42 U.S.C. § 6926(b), the Administrator of EPA

may, if certain criteria are met, authorize a state to operate a "hazardous waste management"

program in lieu of the federal hazardous waste program. The State of New Jersey is a "State" as

defined by Section 1004(31) of the Act, 42 U.S.C. § 6903(31), and therefore within the meaning

of this provision. New Jersey's hazardous waste regulations are set forth at N.J.A.C. 7:26G.

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20. Pursuant to Section 3006, in 1999 EPA authorized the State of New Jersey to conduct a

hazardous waste program (the "authorized State Program"). 64 Fed. Reg. 41823 (Aug. 2, 1999).

In 2002, EPA authorized New Jersey's regulations incorporating by reference changes to the

federal program promulgated by EPA between July 2, 1993 and July 31, 1998. 67 Fed. Reg.

76995 (Dec. 16, 2002). The changes in the authorized State Program became effective February

14, 2003. Until February 14, 2003, the authorized State Program incorporated by reference, with

some modifications and limited omissions, the regulations in the federal program at 40 C.F.R.

Parts 124, 260-266, 268 and 270 as set forth in the 1993 edition. Authorized provisions of the

State Program since February 14, 2003, incorporate by reference, with some modifications and

limited omissions, the regulations in the 1998 edition of the same Parts of Title 40 of the C.F.R.

21. Pursuant to Section 3008 of RCRA, 42 U.S.C. § 6928, the United States may enforce the

provisions of a state authorized hazardous waste program by commencing a civil action in

United States District Court seeking penalties and injunctive relief.

22. Pursuant to Section 3008(g) of RCRA, 42 U.S.C. § 6928(g), and the Federal Civil

Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement

Act of 1996, 28 U.S.C. § 2461 and 40 C.F.R. Part 19, a civil penalty may be assessed per day for

each violation not to exceed $32,500 per day for each such violation occurring on or after March

16, 2004 through January 11, 2009; and not to exceed $37,500 per day for each such violation

occurring on or after January 12, 2009.

23 Forty C.F.R. Part 261 (1993), as incorporated by reference by NJAC 7:26G-5.1(a), sets

forth the criteria for identifying and listing hazardous waste. Solid wastes which are listed in

Subpart D of Part 261 are referred to as listed hazardous wastes.

24. Pursuant to 40 C.F.R. § 262.11 (1993), as incorporated by reference by N.J.A.C. 7:26G -

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6.1(a), persons who generate the solid waste must determine if the solid waste is a hazardous

waste.

25. Pursuant to 40 C.F.R. § 261.3(b)(1) (1993), as incorporated by reference by N.J.A.C.

7:26G-5.1(a), a solid waste listed under Subpart D becomes a hazardous waste when the waste

first meets the listing criteria.

26. Pursuant to 40 C.F.R. § 261.3(c)(1) (1993), as incorporated by reference by N.J.A.C.

7:26G-5.1(a), subject to limited exceptions, a listed hazardous waste remains a hazardous waste.

27. Subpart H of Part 266 sets forth standards governing hazardous waste burned in boilers

and industrial furnaces. Among other requirements, these regulations place restrictions on the

storage and treatment of the hazardous waste prior to burning. 40 C.F.R. §§ 266.100 - 266.112

(1993), as incorporated by reference by NJAC 7:26G -10.1(a).

28. Owners or operators that store or treat a hazardous waste that is or will be burned in a

boiler or industrial furnace are subject to all applicable provisions of 40 C.F.R. Parts 264, 265

and 270. These standards apply to storage and treatment facilities operated by intermediaries,

including processors, blenders and distributors, between the generator and the burner. 40 C.F.R.

§ 266.101 (1993), as incorporated by reference by NJAC 7:26G -10.1(a),

GENERAL ALLEGATIONS 

Casie/PER Facility 

29. The Casie/PER Facility constitutes a "facility" as that term is defined in 40 C.F.R. §

260.10 (1993), as incorporated by reference by NJAC 7:26G-4.1(a).

30. Operations at the Casie/PER Facility include, but are not limited to storage, fuel

blending, and other hazardous waste activities.

31. Casie/PER is the "owner" of the Casie/PER Facility, within the meaning of 40 C.F.R. §

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260.10 (1993), as incorporated by reference by NJAC 7:26G-4.1(a).

32. Casie/PER is the "operator" of the Casie/PER Facility, within the meaning of 40 C.F.R. §

260.10 (1993), as incorporated by reference by NJAC 7:26G-4.1(a).

33. In 1993, NJDEP and/or EPA issued Casie a RCRA permit authorizing it (or the current

permittee) to conduct certain hazardous waste activities at the facility herein referred to as the

Casie/PER Facility, including the "treatment" and "storage" of "hazardous waste" as those terms

are defined in RCRA Section 1004, 42 U.S.C. § 6903, and/or 40 C.F.R. § 260.10 (1993), as

incorporated by reference by NJAC 7:26G-4.1(a), at specified units subject to the conditions of

the permit. This RCRA permit was reissued in 1997 and has been modified numerous times,

including in or about June 2005 and January 2010, and remains in effect (the "RCRA Permit").

34. The RCRA Permit sets forth the terms and conditions authorizing the permittee's storage,

treatment and management of hazardous waste at the Casie/PER Facility. Failure to comply with

the terms of the RCRA Permit subjects the permittee to an enforcement action under RCRA.

35. As set forth in the RCRA Permit, Appendix I - Permit Requirements ¶1, the permittee's

failure to comply with the RCRA Permit constitutes a violation of the RCRA Permit, which is

grounds for an enforcement action under RCRA.

36. As noted in the RCRA Permit, Scope of Permit, Page 2, its conditions are based on New

Jersey's hazardous waste regulations at N.J.A.C. 7:26G. Because N.J.A.C. 7:26G incorporates,

with limited exception, the federal hazardous waste regulations, to avoid confusion, the RCRA

Permit cites federal (rather than state) regulations. Allegations involving violations of the RCRA

Permit will similarly cite federal regulations.

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MART/PER's Facility

37. The MART/PER Facility constitutes a "facility" as that term is defined in 40 C.F.R. §

260.10 (1993), as incorporated by reference by NJAC 7:26G-4.1(a).

38. Operations at the MART/PER Facility include, but are not limited to, the "treatment"

and/or "storage" of "hazardous waste" as those terms are defined in RCRA Sections 1004, 42

U.S.C. § 6903, and/or 40 C.F.R. § 260.10 (1993), as incorporated by reference by NJAC 7:26G4.1(a).

39. MART/PER is the "owner" of the MART/PER Facility, within the meaning of 40 C.F.R.

§ 260.10 (1993), as incorporated by reference by NJAC 7:26G-4.1(a).

40. MART/PER is the "operator" of the MART/PER Facility, within the meaning of 40

C.F.R. § 260.10 (1993), as incorporated by reference by NJAC 7:26G-4.1(a).

41. Neither MART nor PER ever obtained interim status or a RCRA Permit authorizing the

treatment or storage of hazardous waste at the MART/PER Facility.

Hazardous Waste Activities Between the Casie/PER and MART/PER Facilities 

42. The RCRA Permit authorizes the Casie/PER Facility to accept specified hazardous

wastes for storage, transfer, and treatment. These wastes include but are not limited to certain

listed hazardous waste streams generated by petroleum refineries and identified by listed

hazardous waste codes F037, F038, K048-K052, K169-K172.

43. The Casie/PER Facility received shipments of the above referenced hazardous waste

streams from petroleum refineries. These shipments were accompanied by generator prepared

hazardous waste manifests identifying the waste streams as including F037, F038, K048 - K052,

and/or K 169-172.

44. Waste codes F037, F038, K048-K052, K169-172 (hereafter identified as "F and/or K

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Wastes") are listed hazardous wastes that are defined in 40 C.F.R. § 261.31 and § 261.32

(1993), respectively, as incorporated by reference by NJAC 7:26G -5.1(a), as follows:

F037 Petroleum refinery primary oil/water/solids separation sludge ....

F038 Petroleum refinery secondary (emulsified) oil/water/solids separation

sludge ....

K048 Dissolved air flotation (DAF) float from the petroleum refining

industry.

K049 Slop oil emulsion solids from the petroleum refining industry.

K050 Heat exchanger bundle cleaning sludge from the petroleum

refining industry.

K051 API separator sludge from the petroleum refining industry.

K052 Tank bottoms (leaded) from the petroleum refining industry.

K169 Crude oil storage tank sediment from petroleum refining operations.

K170 Clarified slurry oil tank sediment and/or in-line filter/separation solids

from petroleum refining operations.

K 171 Spent hydrotreating catalyst from petroleum refining operations ....

K172 Spent hydrorefining catalyst from petroleum refining operations ....

45. As set forth at 40 C.F.R. Part 261, Appendix VII (1993), as incorporated by reference by

NJAC 7:26G -5.1(a), these above referenced F and K Wastes are listed as hazardous wastes

because they contain certain hazardous constituents including lead, hexavalent chromium,

chromium, benzene, and/or arsenic.

46. Casie/PER transported, or offered for transport, the F and K Wastes to the MART/PER

Facility. These Wastes were accompanied by a hazardous waste manifest.

47. The F and K Wastes were placed into a centrifugal device (the "centrifuge" or "Solvent

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Recovery System ("SRS") unit") at the MART/PER Facility, for the alleged purpose of

reclaiming oil from the F and K Wastes.

48. Pursuant to 40 C.F.R. § 261.6(a)(3)(iv)(c) (1993), as incorporated by reference by NJAC

7:26G -5.1(a), oil reclaimed from oil bearing hazardous waste from petroleum refineries, which

is burned as a fuel and not reintroduced into the refinery process, remains a hazardous waste

subject to regulation unless it meets all of the used oil fuel specifications set forth in 40 C.F.R. §

279.11.

49. On numerous occasions, the oil which MART/PER allegedly reclaimed from the F and K

Wastes through the use of the centrifuge did not meet, or was not tested for, the used oil fuel oil

specifications set forth in 40 C.F.R. § 279.11. Therefore, this allegedly reclaimed oil remained a

F and K Waste, respectively, and subject to hazardous waste regulations.

50. MART/PER transferred the allegedly reclaimed oil, hereafter again referred to as F and K

Waste, from its centrifuge to Tank 416 within the MART/PER Facility.

51. The F and K Waste was held in Tank 416 at the MART/PER Facility for a period of

time, after which, MART/PER shipped, or arranged for shipment of, the F and K Waste to the

Casie/PER Facility without an accompanying hazardous waste manifest.

52. The F and K Waste was placed into Tank 8 at the Casie/PER Facility where it was

accumulated for a temporary period of time.

53. Casie/PER blended the F and K Waste with other material to produce a fuel. This

blending occurred in Tank 8 at the Casie/PER Facility.

54. The blended F and K Waste referenced in the paragraph above is a hazardous waste fuel.

55. Casie/PER sold the blended F and K Waste (hereinafter also referred to as "hazardous

waste fuel") to third parties.

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56. Casie/PER did not prepare hazardous waste manifests for these shipments of the F and K

Waste off-site, nor was the blended F and K Waste identified as a hazardous waste.

57. Hazardous waste may be burned as a fuel pursuant to the requirements set forth in

Subpart H of Part 266. Subpart H places requirements on owners and operators of boilers or

industrial furnaces ("BIFs") that burn hazardous waste, including placing operational

requirements on the BIFs. These requirements include burning standards, feed limits,

destruction standards, and emission limits. These standards include feed and emission limits for

arsenic, lead and chromium which are constituents of F and K Wastes.

58. Casie/PER sold the hazardous waste fuel to facilities that were not authorized to burn

hazardous waste and/or that failed to burn the hazardous waste fuel according to the operating

standards for burning hazardous waste.

COUNTS

COUNT I

Casie/PER's Storage of Hazardous Waste in Violation of the RCRA Permit 

59. The allegations in Paragraphs 1 through 58, above, are realleged and incorporated herein

as if fully set forth below.

60. Paragraph 62 of the RCRA Permit requires the permittee to operate the Casie/PER

Facility pursuant to the regulations contained in 40 C.F.R. Parts 260 through 270 and the

conditions of the Permit.

61. Paragraph 96 of the RCRA Permit restricts the storage of hazardous waste at the

Casie/PER Facility to Tank 9.

62. Neither Paragraph 96 nor any other provision of the Permit authorizes the storage of

hazardous waste in Tank 8 at the Casie/PER Facility.

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63. "Storage" of hazardous waste is defined in 40 C.F.R. § 260.10 as the "holding of

hazardous waste for a temporary period, at the end of which hazardous waste is treated, disposed

of, or stored elsewhere."

64. The Casie/PER Facility received F and K Wastes from the MART/PER Facility. The F

and K hazardous waste was placed in Tank 8 at the Casie/PER Facility for a temporary period of

time prior to blending it further with other material. This activity constitutes hazardous waste

"storage," within the meaning of 40 C.F.R. § 260.10.

65. Casie/PER's storage of hazardous waste in Tank 8 constitutes a violation of Paragraphs

62 and 96 of the RCRA Permit.

66. Pursuant to RCRA Section 3008, 42 U.S.C. § 6928, each day of Casie/PER's

unauthorized storage of hazardous waste in Tank 8 at the Casie/PER Facility in violation of

Paragraphs 62 and 96 of the RCRA Permit subjects PER to injunctive relief and civil penalties.

COUNT II

Casie/PER's Treatment of Hazardous Waste in Violation of the RCRA Permit 

67. The allegations in Paragraphs 1 through 66, above, are realleged and incorporated herein

as if fully set forth below.

68. Paragraph 62 of the RCRA Permit requires operation of the Casie/PER Facility pursuant

to the regulations contained in 40 C.F.R. Parts 260 through 270 and the conditions of the Permit.

69. Paragraph 76 of the RCRA Permit limits the treatment of hazardous waste to certain

containers and locations.

70. Neither Paragraph 76 nor any other provision of the Permit authorizes the treatment of

hazardous waste in Tank 8.

71. "Treatment" of hazardous waste is defined in 40 C.F.R. § 260.10 to include any "method,

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technique or process ... designed to change the physical, chemical or biological character or

composition of any hazardous waste, ... or so as to recover energy or material resources from the

waste."

72. Casie/PER received F and K Wastes from the MART/PER Facility. The F and K

hazardous waste was placed in Tank 8 at the Casie/PER Facility. This hazardous waste was

blended in Tank 8 with other material and by doing so its physical, chemical or biological

character or composition was changed. This activity constitutes hazardous waste "treatment" in

Tank 8, within the meaning of 40 C.F.R. § 260.10.

73. Casie/PER's treatment of hazardous waste in Tank 8 at the Casie/PER Facility constitutes

a violation of Paragraphs 62 and 76 of the RCRA Permit.

74. Pursuant to RCRA Section 3008, 42 U.S.C. § 6928, each day of Casie/PER's

unauthorized treatment of hazardous waste in violation of Paragraphs 62 and 76 of the RCRA

Permit subjects PER to injunctive relief and civil penalties.

COUNT III

Casie /PER'S

Failure to Prepare a Hazardous Waste Manifest for Shipments of Hazardous Waste

75. The allegations in Paragraphs 1 through 74, above, are realleged and incorporated herein

as if fully set forth below.

76. Paragraph 62 of the RCRA Permit requires operations of the Casie/PER Facility "in

accordance with all regulations contained in 40 C.F.R. Parts 260 through 270."

77. Forty C.F.R. § 266.101(c) requires owners and operators of permitted storage and

treatment facilities, including those operated by blenders and processors, to comply with the

applicable provisions set forth in 40 C.F.R. Part 264.

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78. Forty C.F.R. § 264.71(c) requires that all owners and operators of facilities initiating

shipments of hazardous waste comply with the manifest requirements set forth in 40 C.F.R. Part

262.

79. Forty C.F.R. § 262.20 requires that manifests be prepared for the transport of all

hazardous waste off-site.

80. Casie/PER sent shipments of F and K Wastes off-site without preparing hazardous waste

manifests for any of these shipments.

81. Each failure by Casie/PER to prepare a hazardous waste manifest for each off-site

shipment of F and K Waste from the Casie/PER Facility constitutes a violation of Paragraph 62

of the RCRA Permit.

82. Pursuant to RCRA Section 3008, 42 U.S.C. § 6928, each failure by Casie/PER to

prepare a hazardous waste manifest in violation of Paragraph 62 of the RCRA Permit subjects

PER to injunctive relief and civil penalties.

COUNT IV

MART/PER's Storage of Hazardous Waste Without Interim Status or a Permit

83. The allegations in Paragraphs 1 through 82, above, are realleged and incorporated herein

as if fully set forth below.

84. Subject to limited exceptions not applicable here, pursuant to Section 3005 of RCRA, 42

U.S.C. § 6925 and 40 C.F.R. § 270.1(c) (1993), as incorporated by reference by NJAC 7:26G12.1(a), interim status or a RCRA permit is required for the "storage" of hazardous waste.

85. "Storage" of hazardous waste is defined in 40 C.F.R. § 260.10 (1993), as incorporated by

reference by NJAC 7:26G-4.1(a), as the "holding of hazardous waste for a temporary period, at

the end of which hazardous waste is treated, disposed of, or stored elsewhere."

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86. Hazardous waste (F and K Wastes) were "stored" at the MART/PER Facility, within the

meaning of 40 C.F.R. § 260.10 (1993), as incorporated by reference by NJAC 7:26G-4.1(a), in

Tank 416 prior to transfer to the Casie/PER Facility for further storage and/or treatment.

87. The MART/PER Facility never obtained interim status or a RCRA permit authorizing the

storage of hazardous waste at the MART/PER Facility.

88. The storage of hazardous waste, namely F and K Waste, at the MART/PER Facility in

Tank 416 without interim status or a RCRA permit is a violation of Section 3005 of RCRA, 42

U.S.C. § 6925, and 40 C.F.R. § 270.1 (1993), as incorporated by NJAC 7:26G-12.1(a).

89. Pursuant to RCRA Section 3008, 42 U.S.C. § 6928, each day of MART/PER's storage of

hazardous waste without interim status or a permit subjects PER to injunctive relief and civil

penalties.

COUNT V

MART/PER's Treatment of Hazardous Waste Without Interim Status or a Permit

90. The allegations in Paragraphs 1 through 89, above, are realleged and incorporated herein

as if fully set forth below.

91. Subject to limited exceptions not applicable here, pursuant to Section 3005 of RCRA, 42

U.S.C. § 6925 and 40 C.F.R. § 270.1(c) (1993), as incorporated by reference by NJAC 7:26G12.1(a), interim status or a RCRA permit is required for the "treatment" of hazardous waste.

92. Pursuant to 40 C.F.R. § 261.6(a)(2)(ii) (1993), as incorporated by reference by

NJAC7:26G -5.1(a), hazardous waste burned for energy recovery in boilers and industrial

furnaces is regulated under 40 C.F.R. Part 266.

93. Forty C.F.R. § 266.101(c) (1993), as incorporated by reference by NJAC 7:26G -10.1(a),

requires owners and operators of facilities that treat hazardous waste, including those facilities

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operated by blenders and processors, to comply with the applicable provisions set forth in 40

C.F.R. Parts 264, 265 and 270.

94. "Treatment" of hazardous waste is defined in 40 C.F.R. § 260.10 (1993), as incorporated

by reference by NJAC 7:26G - 4.1(a), to include "any method, technique or process ... designed

to change the physical, chemical or biological character or composition of any hazardous waste,

... or so as to recover energy or material resources from the waste."

95. The SRS unit at the MART/PER Facility employs a centrifugal process to recover oil, a

material resource, from the F and K Waste. This recovery process constitutes "treatment" within

the meaning of 40 C.F.R. § 260.10 (1993), as incorporated by reference by NJAC 7:26G - 4.1(a).

96. The MART/PER Facility never obtained interim status or a RCRA permit authorizing the

treatment of hazardous waste at the Facility.

97. Each day of MART/PER's treatment of the hazardous waste, namely F and K Waste, in

the SRS unit at the MART/PER Facility without interim status or a RCRA permit is a violation

of Section 3005 of RCRA, 42 U.S.C. § 6925 and 40 C.F.R. § 270.1(c) (1993), as incorporated by

reference by NJAC 7:26G-12.1(a).

98. Pursuant to RCRA Section 3008, 42 U.S.C. § 6928, each day of MART/PER's treatment

of hazardous waste without interim status or a RCRA permit subjects PER to injunctive relief

and civil penalties.

COUNT VI

MART/PER's

Failure to Prepare a Hazardous Waste Manifest for Shipments of Hazardous Waste

99. The allegations in Paragraphs 1 through 98, above, are realleged and incorporated herein

as if fully set forth below.

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100. The regulatory standards for permitted TSD facilities and/or for facilities that came into

existence after November 19, 1980 are set forth in 40 C.F.R. Part 264. 40 C.F.R. § 264.1 (1993),

as incorporated by reference by NJAC 7:26G-8.1(a).

101. Forty C.F.R. § 264.71(c) (1993), as incorporated by reference by NJAC 7:26G-8.1(a),

requires that all owners and operators of facilities initiating shipments of hazardous waste

comply with the manifest requirements set forth in 40 C.F.R. Part 262.

102. Forty C.F.R. § 262.20(1993), as incorporated by reference by NJAC 7:26G-6.1(a),

requires that hazardous waste manifests be prepared for the transport of each shipment of

hazardous waste off-site.

103. MART/PER did not prepare hazardous waste manifests for over 450 shipments, totaling

over 1,970,000 gallons, of F and K Wastes from the MART/PER Facility to the Casie/PER

Facility.

104. Each failure by MART/PER to prepare a manifest for each shipment of hazardous waste

from the MART/PER Facility to the Casie/PER Facility constitutes a violation of 40 C.F.R. §

262.20 (1993), as incorporated by reference by NJAC 7:26G-6.1(a).

105. Pursuant to RCRA Section 3008, 42 U.S.C. § 6928, each failure by MART/PER to

prepare a hazardous waste manifest for shipments off-site in violation of 40 C.F.R. § 262.20

(1993), as incorporated by reference by NJAC 7:26G-6.1(a), subjects PER to injunctive relief

and civil penalties.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, the United States of America, respectfully requests that this Court

grant the following relief:

17

Case 1:11-cv-00161-JBS -AMD Document 1 Filed 01/10/11 Page 17 of 20 PageID: 17
1. Permanently enjoin PER from further violations of the Resource Conservation

and Recovery Act, 42 U.S.C. § 6901, et seq., and its implementing regulations and/or the

federally authorized New Jersey hazardous waste regulations, and/or of any NJDEP and/or EPA

Hazardous Waste Permit(s) issued pursuant to any of these authorities.

2. Order PER to promptly take all steps necessary or appropriate to comply with the

foregoing laws, regulations, and permits at the MART/PER and Casie/PER Facilities.

3. Enter a judgment assessing civil penalties against PER not to exceed $32,500 per

day for each such violation occurring on or after March 16, 2004 through January 11, 2009; and

not to exceed $37,500 per day (unless otherwise permitted by statute or regulation) for each such

violation occurring on or after January 12, 2009.

4. Award such other relief as this Court may deem just and proper.

Respectfully submitted,

Ignacia S. Moreno

Assistant Attorney General

Environment and Natural Resources Division

U.S. Department of Justice

Catherine Adams Fiske

Trial Attorney

Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice

One Gateway Center - Suite 616

Newton, MA 02458

(617) 450-0444

18

Case 1:11-cv-00161-JBS -AMD Document 1 Filed 01/10/11 Page 18 of 20 PageID: 18
OF COUNSEL:

Amy R. Chester

Assistant Regional Counsel

U.S. Environmental Protection Agency, Region II

290 Broadway

New York, New York 10007-1866

19

Case 1:11-cv-00161-JBS -AMD Document 1 Filed 01/10/11 Page 19 of 20 PageID: 19
ta.IS 44 (Rev. 12/07, NJ 5/08) CIVIL COVER SHEET

(Indicate Citizenship of Parties in Item III)

0 2 U.S. Government 0 4 Diversity

Defendant

Citizen or Subject of a 0 3 o 3 Foreign Nation 0 6 0 6

Foreign Country

Reopened

(Place an "X" in One Box Only)

0 2 Removed from 0 3 Remanded from 0 4 Reinstated or El 5

State Court Appellate Court

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which_vou are filing (?1,14t5Vilisifictional esgless diversity): Hesource conservation 46, Kecovery AC 2 U.S.U.

statut

tiV.

Brief description of cause: Failure to comply with KGRA in management of hazardous waste trom petroleum refineries.

JUDGE DOCKET NUMBER

S)

(See mstructions): instructions):

Explanation:

DATE SIGNATURE OF ATTORNEY OF RECORD

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as provided

by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating

the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

-tom.

0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 610 Agriculture 0 422 Appeal 28 USC 158 0 400 State Reapportionment

0 120 Marine 0 310 Airplane 0 362 Personal Injury - 1 620 Other Food & Drug 0 423 Withdrawal 0 410 Antitrust

0 130 Miller Act 0 315 Airplane Product Med. Malpractice 0 625 Drug Related Seizure 28 USC 157 0 430 Banks and Banking

0 140 Negotiable Instrument Liability 0 365 Personal Injury - of Property 21 USC 881 0 450 Commerce

0 150 Recovery of Overpayment 0 320 Assault, Libel & Product Liability 0 630 Liquor Laws PitOPULTY RIGHTS 0 460 Deportation

& Enforcement of Judgmen Slander 0 368 Asbestos Personal 0 640 A.R. & Truck 0 820 Copyrights 0 470 Racketeer Influenced and

0 151 Medicare Act 0 330 Federal Employers' Injury Product 0 650 Airline Regs. 0 830 Patent Corrupt Organizations

0 152 Recovery of Defaulted Liability Liability 0 660 Occupational 0 840 Trademark 0 480 Consumer Credit

Student Loans 0 340 Marine PERSONAL PROPERTY Safety/Health 0 490 Cable/Sat TV

(Excl. Veterans) 0 345 Marine Product 0 370 Other Fraud 0 690 Other

40CM SECURITY

0 810 Selective Service

0 153 Recovery of Overpayment Liability 0 371 Truth in Lending 0 850 Securities/Commodities/

of Veteran's Benefits 0 350 Motor Vehicle O 380 Other Personal 0 710 Fair Labor Standards 0 861 HIA (1395ff) Exchange

0 160 Stockholders' Suits 0 355 Motor Vehicle Property Damage Act 0 862 Black Lung (923) 0 875 Customer Challenge

0 190 Other Contract Product Liability 0 385 Property Damage 0 720 Labor/Mgmt. Relations 0 863 DIWC/DIWW (405(g)) 12 USC 3410

0 195 Contract Product Liability 0 360 Other Personal Product Liability 0 730 Labor/Mgmt.Reporting 0 864 SSID Title XVI 0 890 Other Statutory Actions

0 196 Franchise Injury & Disclosure Act 0 865 RSI (405(g)) 0 891 Agricultural Acts

*tilt 4 4 0 740 Railway Labor Act FEDER&L TAX 81)11S 0 892 Economic Stabilization Act

0 210 Land Condemnation O 441 Voting O 510 Motions to Vacate 0 790 Other Labor Litigation 0 870 Taxes (U.S. Plaintiff J8( 893 Environmental Matters

0 220 Foreclosure O 442 Employment Sentence 0 791 Empl. Ret. Inc. or Defendant) 0 894 Energy Allocation Act

0 230 Rent Lease & Ejectment O 443 Housing/ Habeas Corpus: Security Act 0 871 IRS—Third Party 0 895 Freedom of Information

0 240 Torts to Land Accommodations 0 530 General 26 USC 7609 Act

0 245 Tort Product Liability O 444 Welfare 0 535 Death Penalty ThIMIGRATION 0 900Appeal of Fee Determination

0 290 All Other Real Property O 445 Amer. w/Disabilities - 0 540 Mandamus & Other 0 462 Naturalization Application Under Equal Access

Employment 0 550 Civil Rights 0 463 Habeas Corpus - to Justice

O 446 Amer. w/Disabilities - 0 555 Prison Condition Alien Detainee 0 950 Constitutionality of

Other 0 465 Other Immigration State Statutes

O 440 Other Civil Rights Actions

IV. NATURE OF SUIT Place an "X" in One Box Onl

V. ORIGIN

tiK1 Original

Proceeding

Transferred from

another district

(specify) 

0 6 Multidistrict

Litigation

Appeal to District

Judge from

Magistrate

Judgment

0 7

VII. REQUESTED IN

COMPLAINT: 

VIII. RELATED CASE(

171 CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23

CHECK YES only if demanded in complaint:

JURY DEMAND: 0 Yes 0 No

DEMANDS

I. (a) PLAINTIFFS

United States of America

DEFENDANTS

Pure Earth Recycling, Inc.

(b) County of Residence of First Listed Plaintiff 

(c) Attorney's (Firm Name, Address, Telephone Number and Email Address)

Catherine Adams Fiske, United States Department of Justice

Environmental Enforcement Section

One Gateway Center - Suite 616

Newton, MA 02458 tel: 617 450 0444;email: addie.fiske@usdoj.gov

County of Residence of First Listed Defendant

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED.

Attorneys (If Known)

Anthony Riatano, Herold Law, tel: 908 647 1022; email:

ariatanoaHeroldlaw.com

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

x1 U.S. Government 0 3 Federal Question

Plaintiff (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff

(For Diversity Cases Only) and One Box for Defendant)

PTF DEF PTF DEF

Citizen of This State 0 1 0 1 Incorporated or Principal Place 0 4 0 4

of Business In This State

Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 0 5

of Business In Another State

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