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From to 9786889542 at 7/6/04 12:47 PM 002/002
July 5, 2004
66 Meadowood Road
North Andover, MA 01845-5927
Town of North Andover
D. Robert Nicetta, Building Commissioner/Zoning Enforcement Officer
27 Charles Street
North Andover, MA 01845
Subject:Your Statement to the ZBA on February 10, 2004.
Re: Prohibition Against Two Simultaneous Board Hearings.
Dear Mr. Nicetta:
As you are aware, on February 10, 2004 the Zoning Board of Appeals(ZBA) [in case 2003-037]
upheld your letter dated August 25,2003. During that hearing,you addressed the Board by
stating"Mr. Chair, I have to once again advise the board, as the zoning enforcement officer,you
cannot hear this petition . . .two Boards can't hear the same thing at the same time, not in
zoning."
This included quoting my February 6, 2004 letter addressed to Heidi Griffin, Director of
Community Development,which states: "I am demanding that this issue be placed on the agenda
for the next planning board hearing."
Please provide the foundation(i.e.,zoning bylaw,town law,state law,case law, or regulation)for
your statement with regard to:
a) that a"demand" for a planning board hearing constitutes an actual hearing;
AND
b) that two simultaneous Board hearings involving the same issue are prohibited.
Thank-you for your time and attention to this important matter. I can be contacted at the above
address.
Sincerely,
Konstantinos"Dino" Balos
cc:Assistant Town Manager
RECEIVED
JUL 0 6 2004
BUILDING DEPT.
-T�. u20, ;s
., a Joleo sr4%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 1
o c 1 CONGRESS STREET,SUITE 1100
BOSTON,MASSACHUSETTS 02114-2023
�rgC.PRO',
June 16, 2004
r
CERTIFIED MAIL a pr +vrr/ N
RETURN RECEIPT REQUESTED
Michael Farrow, Chief Executive Officer
Material Installations,Inc.
11 Bayfield Drive -- ,`
North Andover, Massachusetts 01845 -�
Re: Clean Air Act Notice of Violation
Docket No. CAA-04-0033
Dear Mr. Farrow:
Attached is a Notice of Violation ("NOV")issued by the United States Environmental Protection
Agency("EPA")to Material Installations,Inc. under Section 113 of the Clean Air Act("CAA"
or"Act"),42 U.S.C. §§ 7413.
The NOV notifies you that by allowing delivery trucks to idle at its loading dock area, Material
Installations has violated Section 7.11(1)(b) of Title 310 of the Code of Massachusetts
Regulations, which prohibits the idling of a motor vehicle for a duration greater than five(5)
minutes,except under special circumstances. As described in the NOV,EPA has evidence of
over 1000 minutes of idling in violation of the anti-idling rule.These violations are
environmentally significant because diesel exhaust can trigger asthma,respiratory illness, and
possibly cancer.
You may confer with EPA concerning the violations cited in the NOV. To schedule an NOV
conference,please contact Rebecca Kurowski,Environmental Engineer, at(617)918-1863, or
have your attorney contact Thomas T. Olivier, Senior Enforcement Counsel, at(617)918-1737,
within one week of receipt of this NOV.
Sincerely,
4StephePerkins,Director
Office of Environmental Stewardship
cc: Ed Pawlowski, MA DEP Northeast Regional Office
Richard Mahoney,Material Installations, Inc.
Brian J.LaGrasse, Town of North Andover Department of Health, 27 Charles St. 01845
Toll Free•1-888-372-7341
Internet Address(URL)• http://www.epa,gov/regionl
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i
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION I
IN THE MATTER OF: ) NOTICE OF VIOLATION
Material Installations,Inc. ) Proceeding under Section 113 of the Clean
11 Bayfield Drive ) Air Act
North Andover,Massachusetts 01845 ) Docket No. CAA-04-0033
I. STATUTORY AUTHORITY
1. The United States Environmental Protection Agency("EPA")issues this Notice of
Violation ("NOV")to Material Installations,Inc. under Section 113(a)(1)of the Clean Air Act
(the"Act"),42 U.S.C. § 7413(a)(1). Section 113(a)(1) of the Act provides that whenever, on the
basis of any information available,EPA finds that any person has violated or is in violation of
any requirement or prohibition of an applicable state implementation plan or permit,EPA shall
notify the person of such finding. This NOV describes EPA's finding that Material Installations,
Inc. has violated the Act by failing to comply with Section 7.11(1)(b)of Title 310 of the Code of
Massachusetts Regulations ("CMR") (hereinafter referred to as the"Massachusetts anti-idling
regulation"),which prohibits the idling of a motor vehicle for a duration greater than five (5)
minutes,except under special circumstances.
2. The Commonwealth of Massachusetts has adopted an "applicable implementation
plan"within the meaning of Section 113(a)(1) of the Act. This plan,commonly known as a state
implementation plan ("SIP"), has been approved by EPA under Section 110 of the Act,42 U.S.C.
§ 7410. The Massachusetts SIP includes various federally-approved portions of the
-2-
Massachusetts Air Pollution Control Regulations at 310 CMR § 7.00 et seq.
3. The Massachusetts anti-idling regulation,which is part of.the Massachusetts S1P,'was
approved by EPA on May 31, 1972, and thus is federally enforceable.
II. FACTUAL BACKGROUND AND VIOLATIONS
4. Material Installations,Inc.,located in North Andover,MA,is a distributor of pre-
manufactured office furniture. The facility has five truck ports for delivery vehicles.
5.EPA received a January 29,2004 letter from a citizen concerned about truck idling at
the Material Installations facility.
6. On March 8, 2004 and April 2, 2004,EPA visited Material Installations at 11 Bayfield
Drive,North Andover, MA. The inspectors were denied entry to the facility on March 8, 2004
and again on April 2,2004.
7. EPA has received from a concerned citizen nine eight-hour video tapes of trucks idling
at Material Installations.The dates of idling shown on the tapes range from August 8, 2003,to
March 3,2004.
8.The video tapes show more than one thousand minutes of illegal truck idling(that is,
idling beyond the limit of 5 minute per vehicle,per event). The idling violations of longest
duration are shown in the following table:
i
-3 -
Date Time Total Idle Time Non-Compliance Time Vehicle Identity
i
Stamp (minutes) (minutes)
Aug 18 ,2003 0641-0714 33 28 Material Installations
Oct 03, 2003 0630-0656 26 21 Material Installations
Oct 06, 2003 0636-0703 27 22 Material Installations
Oct 06, 2003 0638-0704 26 21 Material Installations
Oct 08, 2003 0717-0754 38 33 Material Installations
Oct 23, 2003 0633-0705 32 27 Material Installations
Nov 21,2003 0714-0751 37 32 Material Installations
Nov 26,2003 0653-0721 28 23 Material Installations
Jan 06, 2003 0712-0804 52 47 Material Installations
Jan 22, 2004 0731-0808 37 32 Material Installations
Jan 28, 2004 1107-1214 67 62 Material Installations
Feb 04,2004 0657-0725 28 23 Material Installations
Feb 09, 2004 0736-0822 46 41 Material Installations
Feb 12,2004 0648-0726 38 33 Material Installations
Feb 12, 2004 0658-0743 45 40 Material Installations
Feb 16,2004 0648-0805 77 72 Material Installations
Feb 19, 2004 0555-0623 28 23 Material Installations
r'
Feb 23, 2004 0743-0813 30 25 Material Installations
Mar 03, 2004 0706-0739 33 28 Material Installations
Total 633
-4-
9. The Massachusetts anti-idling regulation prohibits the unnecessary operation of the
engine of a motor vehicle while the vehicle is stopped for a foreseeable period of time in excess
of five minutes. There are three situations in which this regulation does not apply: (a)when a
vehicle is being serviced,provided that the operation of the engine is essential to the proper
repair thereof; (b)when a vehicle is engaged in the delivery or acceptance of goods, wares,or
merchandise for which engine assisted power is necessary, and substitute alternate means cannot
be made available; or(c)when a vehicle is engaged in an operation for which the engine power is
necessary for an associated power need other than movement, and substitute alternate power
means cannot be made available,provided that such operation does not cause or contribute to a
condition of air pollution.
10. The observed idling did not meet any of the above-listed exceptions to the
Massachusetts anti-idling regulation.
11. Accordingly,EPA finds that Material Installations violated the Massachusetts anti-
idling regulation on numerous occasions between August 8, 2003, and March 3, 2004.
III. ENFORCEMENT
12. At any time after the expiration of thirty(30) days following the date of issuance of
this NOV, EPA may issue Material Installations an order requiring compliance with the
Massachusetts SIP and the Massachusetts anti-idling regulation; commence a civil judicial action
for penalties and injunctive relief; and/or issue an administrative penalty order for monetary
penalties up to$27,500 per day for each violation until March 15, 2004, and of up to $ 32,500
- 5 -
per day for each violation after March 15, 2004. See Sections 113(a), (b) and(d)of the Act,42
U.S.C. §§ 7413(a), (b) and(d),40 CFR Part 19, and 69 FR 7121 (February 13, 2004) (Clean Air
Act judicial and administrative penalties raised from$25,000 to $27,500 and to $ 32,500). Be
advised that where EPA or another agency has notified a source of a violation, in certain
circumstances the violation shall be presumed to continue for each and every day from the date
of notice until the violator establishes that continuous compliance has been achieved. See
Section 113(e)(2)of the Act.
13. The issuance of this NOV does not preclude EPA from electing to pursue any other
remedies or sanctions authorized by law to address the violations.
IV. OPPORTUNITY TO CONFER
14. You may confer with EPA concerning this NOV and the findings on which it is
based. To schedule a conference, or if you have any questions,please contact Rebecca
Kurowski,Environmental Engineer, at(617)918-1863, or have your attorney call Thomas T.
Olivier, Senior Enforcement Counsel,at(617)918-1737 within one week of receipt of this NOV.
V. EFFECTIVE DATE
15. This NOV shall become effective immediately upon issuance by EPA.
SO ISSUED:
L u
Stephen Plerkins,Director Date
Office of Environmental Stewardship
United States Office of Enforcement and Compliance Assurance(2201 A)
` ��� Environmental Protection EPA 300-F-99-004 September 1999
Agency
Office of • and Compliance
INFORMATION SHEET
U.S. EPA Small Business Resources
'f you own a small business, the United States Environmental Protection Agency (EPA) offers
a variety of compliance assistance and tools to assist you in complying with federal and State
environmental laws. These resources can help you understand your environmental obligations,
improve compliance and find cost-effective ways to comply through the use of pollution prevention
and other innovative technologies.
EPA Websites EPA's Small Business Ombudsman Hotline can pro-
EPA has several Internet sites that provide useful vide a list of all the hot lines and assist in determining
compliance assistance information and materials for the hotline best meeting your needs. Key hotlines
small businesses. Many public libraries provide ac- include:
cess to the Internet at minimal or no cost.
EPA's Small Business Ombudsman
EPA's Small Business Home Page (http:// (800) 368-5888
www.epa.gov/sbo) is a good place to start because it Hazardous Waste/Underground Tanks/
links with many other related websites. Other useful Superfund
websites include:
(800) 424-9346
EPA's Home Page National Response Center
http://www.epa.gov (to report oil and hazardous substance spills)
(800) 424-8802
Toxics Substances and Asbestos Information
Small Business Assistance Programs (202) 554-1404
http://www.epa.gov/ttn/sbap Safe Drinking Water
(800) 426-4791
Compliance Assistance Home Page Stratospheric Ozone and Refrigerants
http://www.epa.gov/oeca/oc Information
(800) 296-1996
Office of Site Remediation Enforcement Clean Air Technical Center
hftp://www.epa.gov/oeca/osre
(919) 541-0800
Wetlands Hotline
Hotlines, Helplines and (800) 832-7828
Clearinghouses
EPA sponsors approximately 89 free hotlines and
clearinghouses that provide convenient assistance
on environmental requirements.
Continued on back
• http://www.epa.gov/oeca/ore.html
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F; Om to 978-688-9556 at 6/3/04 9:44 AM 00-Z/0
Edi
June 3, 2004
66 Meadowood Road
North Andover, MA 01845-5927
TOWN MANAGER'S OFFICE
MARK REES, TOWN MANAGER
120 MAIN STREET
NORTH ANDOVER MA
viafax: 978-688-9556
Subject: Citizen Public Records Request
Re: ZBA Petition 200-037 for property at 11 Bayfield Drive.
To Whom It May Concern:
Pursuant to the Massachusetts Public Records Law, this letter serves as a
request for the following:
Any and all information related to the above.referenced Zoning Board of
Appeals Public Hearings for the dates of 11-18-2003, 1-13-2004, and 2-
10-2004.
This includes but isnot limited to any and all minutes, notes, logs, and
transcripts as well as copies of the audio recordings taken for each of
those dates.
I can be contacted at the above address or via telephone at 978-683-3414
(home) or 617-557-1235 (work).
Thank-you for your time and assistance.
Sincerely,
K. Dino Balos
J�tEo srq�s
A UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 1 s
o < 1 CONGRESS STREET,SUITE 1100 '
z ? BOSTON,MASSACHUSETTS 02114-2023
�q(.PROZ�� Y '
August 11, 2004 .
RECEIVED
CERTIFIED MAIL
RETURN RECEIPT REQUESTED AUG 12 2004
Mr. Michael J Farrow TCt�LTH DEPARTM NORTH T R
Chief Executive Officer -
Material Installations, Inc. RECEIVED
11 Bayfield Drive
North Andover,MA 01845 AUG 12 2004
Re: Material Installations, Inc. BUILDING D E PT.
Docket No. CAA-04-0033
Dear Mr. Farrow:
I enclose a Complaint seeking penalties for violations of the Clean Air Act and of the
Massachusetts state implementation plan promulgated under Section 110 of the Clean Air Act,
42 U.S.C. § 7410. The violations involve the excessive idling of trucks at your facility located
at 11 Bayfield Drive, North Andover,MA. The Environmental Protection Agency,Region I,
provided Material Installations,Inc. with written notice of these violations in June 2004.
Please read the Complaint and the enclosed rules of practice carefully concerning your options in
responding to this action,which include filing an answer and requesting a hearing.
Whether or not you request a hearing, you may request an informal conference to discuss the
matter with EPA by contacting Rebecca L. Kurowski of this office at(617) 918-1863, or by
having your counsel contact EPA attorney Joshua Secunda at(617) 918-1736.
Please note that 40 C.F.R. § 22.08 prohibits the unilateral discussion of the merits of this action
with the Regional Administrator or an Administrative Law Judge.
Toll Free•1-888-372-7341
Internet Address(URL)• http://www.epa,govlregioni
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It is the practice of this office to inform the press of the issuance of administrative complaints.
Sincerely yours,
Stephen S. Perkins
Director
Office of Environmental Stewardship
Enclosures
cc: Benjamin B. Tymann
Mintz,Levin, Cohn, Ferris, Glovsky and Popeo,P.C.
One Financial Center
Boston,MA 02111
� I
i
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• i
Page 2
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION I
In the Matter of ) Docket No. CAA-01-2004-0086
Material Installations; Inc. ) COMPLAINT AND NOTICE OF
11 Bayfield Drive ) OPPORTUNITY FOR HEARING
North Andover,MA 01845 )
Respondent )
1. INTRODUCTION
1. The United States Environmental Protection Agency("EPA"or"Complainant")
issues this administrative Complaint and Notice of Opportunity for Hearing("Complaint")under
Section 113(d) of the Clean Air Act("CAA"or"Act"),42 U.S.C. § 7413(d),to Material
Installations, Inc. ("Material Installations"or"Respondent"). The Complaint notifies Material
Installations that EPA proposes to assess civil penalties against Material Installations for
violations of federally-enforceable provisions of the Massachusetts state air regulations. The
Complaint also describes Respondent's option to file an Answer to the Complaint and to request
a formal hearing to contest the alleged violations and the proposed penalties.
II. STATUTORY AND REGULATORY BASIS
2. Sections 113(a) and(d) of the Act authorize EPA to assess civil penalties for
violations of any provision of an applicable state implementation plan("SIP")or permit.
Page 1
Material Installations Complaint, Docket No. CLIA-01-2004-0086
3. Massachusetts has adopted a SIP within the meaning of Section 113(a)of the Act.
The Massachusetts SIP has been approved by EPA under Section 110 of the Act, 42 U.S.C. §
7410. The Massachusetts SIP includes various federally-approved portions of the Code of
Massachusetts Regulations("CMR"),including the federally-approved version of 310 CMR
7.11.
4. The federally-approved SIP version of 310 CMR 7.11.1.b provides as follows:
No person shall cause, suffer,allow, or permit the unnecessary operation of the
engine of a motor vehicle while said vehicle is stopped for a foreseeable period of time in
excess of five minutes. This regulation shall not apply to:
(1) vehicles being serviced,provided that the operation of the engine is
essential to the proper repair thereof,or
(2) vehicles engaged in the delivery or acceptance of goods,wares, or
merchandise for which engine assisted power is necessary and substitute alternate means
cannot be made available, or
(3)vehicles engaged in an operation for which engine power is necessary
for an associated power need other than movement and substitute alternate power means
cannot be made available provided that such operation does not cause or contribute to.a
condition of air pollution.
III. ALLEGATIONS
5. Respondent is a corporation with its principal place of business at 11 Bayfield Drive
in North Andover,Massachusetts("facility").
6. Respondent is a"person" as defined in Section 302(e) of the Act.
7. Respondent is a distributor of pre-manufactured office furniture and operates as an
open office installation service contractor. Respondent's facility has five truck ports for delivery
vehicles.
Page 2
Material Installations Complaint,Docket No. CAA-01-2004-0086
8. On January 24, 2004, EPA received a letter from a citizen concerned.about truck
idling at Respondent's facility.
9. On March 8,2004 and April 2, 2004,EPA visited Respondent's facility. The
inspectors were denied entry to the facility on March 8,2004 and again on April 2, 2004.
10. EPA received from a concerned citizen nine eight-hour video tapes of trucks idling
at Respondent's facility. The dates of idling shown on the tapes range from August 18, 2003 to
March 3, 2004.
11. The video tapes show 992 minutes of illegal truck idling(that is, idling beyond the
limit of 5 minutes per vehicle,per event). The alleged violations are set out in the following
table:
Date Real Time Total Idle Time Non-Compliance Time Vehicle Identity
(minutes) (minutes)
Aug 18, 2003 0641-0714 33 28 Material Installations
Aug 18,2003 0654-0714 20 15 other
Aug 21, 2003 0700-0717 17 12 Material Installations
Sep 02,2003 0130-0137 7 2 Other
Sep 23,2003 0558-0614 16 11 Material Installations
Oct 03,2003 0626-0648 22 17 Material Installations
Oct 03,2003 0630-0656 26 21 Material Installations
Oct 06,2003 0636-0703 27 22 Material Installations
Oct 06, 2003 0638-0704 26 21 Material Installations
Oct 08, 2003 0717-0754 38 33 Material Installations
Oct 23,2003 0633-0705 32 27 Material Installations
Nov 04,2003 0420-0431 12 7 Other
Page 3
Material Installations Complaint,Docket No. CAA-01-2004-0086
Nov 21,2003 0714-0751 37 32 Material Installations
Nov 26, 2003 0653-0721 28 23 Material Installations
Jan 05, 2004 0647-0702 15 10 Material Installations
Jan 06, 2004 0712-0804 52 41 Material Installations
Jan 19, 2004 0645-0702 17 12 Material Installations
Jan 22, 2004 0631-0653 22 17 Material Installations
Jan 22, 2004 0731-0808 37 32 Material Installations
Jan 23, 2004 0600-0607 7 2 Material Installations
Jan 23, 2004 0628-0638 10 5 Material Installations
Jan 24, 2004 0855-0912 17 12 Material Installations
Jan 24, 2004 0917-0935 18 13 Material Installations
Jan 26,2004 0554-0610 16 11 Material Installations
Jan 26, 2004 0713-0726 13 8 other
Jan 27, 2004 0555-0607 12 7 Material Installations
Jan 27, 2004 0732-0746 14 9 Material Installations
Jan 28,2004 1107-1214 67 62 Material Installations
Jan 31, 2004 0700-0716 16 11 Material Installations
Feb 04,2004 0657-0725 28 23 Material Installations
Feb 04,2004 2031-2047 16 11 Material Installations
Feb 05,2004 0705-0711 6 1 Material Installations
Feb 09,2004 0736-0822 46 41 Material Installations
Feb 09,2004 0747-0759 12 7 Material Installations
Feb 12, 2004 0648-0726 38 33 Material Installations
Feb 12,2004 0658-0743 45 40 Material Installations
Feb 12, 2004 0712-0720 8 3 Material Installations
Feb 13,2004 0620-0635 15 10 Material installations
Page 4
Material Installations Complaint, Docket No. CAA=01-2004-0086
Feb 14, 2004 1106-1121 15 10 Material Installations
Feb 16, 2004 0602-0609 7 2 Material Installations
Feb 16,2004 0648-0709 21 16 Material Installations
Feb 16,2004 0648-0805 77 72 Material Installations
Feb 17,2004 0648-0706 18 13 Material Installations
Feb 17,2004 0650-0706 16 11 Material Installations
Feb 18,2004 0641-0649 18 13 Material Installations
Feb 19,2004 0555-0623 28 23 Material Installations
Feb 20,2004 0601-0610 9 4 Material Installations
Feb 20,2004 0623-0640 17 12 Material Installations
Feb 20,2004 0836-0845 9 4 Material Installations
Feb 20,2004 0924-0934 10 5 Material Installations
Feb 21,2004 0725-0743 18 13 Material Installations
Feb 23,2004 0703-0723 20 15 Material Installations
Feb 23,2004 0743-0813 30 25 Material Installations
Feb 24,2004 0638-0645 7 2 Material Installations
Feb 24,2004 0647-0655 8 3 Material Installations
Feb 24,2004 0650-0700 10 5 Material Installations
Feb 25, 2004 0545-0608 23 i8 Material Installations
Mar 03,2004 0706-0739 33 28 Material Installations
Total 992
12. A truck is a"motor vehicle"as that term is defined at 310 C.M.R. 7.00.
13. Responded caused, suffered, allowed or permitted the excess idling.
14. The amount of idling time in excess of the allowed five minutes of idling time was
"foreseeable."
Page 5
Material Installations Complaint, Docket No. CAA-01-2004-0086
15. The amount of idling time in excess of five minutes was"unnecessary"; the idling
did not fall into any of the enumerated exceptions set out in 310 C.M.R. 7.11(1)(b).
16 On June 16, 2004, EPA issued Respondent a Notice of Violation,under the
authority of Section I I3(a)(1)of the Act,concerning Respondent's truck idling at its facility.
17 Respondent's idling of its trucks, as described in Paragraph 11 above,violated 310
CMR 7.11.1.b.
IV. PROPOSED CIVIL PENALTY
18. Section 113(d)of the Act authorizes the assessment of a civil administrative
penalty of up to$25,000 for each violation of the Clean Air Act and its implementing
regulations, including federally-approved SIP regulations. In accordance with the Civil Monetary
Penalty Inflation Adjustment Rule, 61 Fed. Reg. 69360(Dec. 31, 1996), the maximum civil
penalty for violations of the Act occurring after January 30, 1997 and before February 13, 2004 is
$27,500 for each violation. In accordance with the Civil Monetary Penalty Inflation Adjustment
Rule, 69 Fed.Reg. 7121 (Feb. 13, 2004), the maximum civil penalty for violations of the Act
occurring after March 15, 2004 is$32,500 per day for each violation.
19. Based on the specific facts and circumstances of this case, EPA proposes to assess
Respondent a total civil penalty of$109,120(one hundred nine thousand one hundred and twenty
dollars). As described below, the proposed penalty has been determined in accordance with
Page 6
Material Installations Complaint, Docket No. CAA-01-2004-0086
Section 113(e) of the Act,42 U.S.C. § 7413(e), and with reference to the CAA Stationary Source
Civil Penalty Policy("CAA Penalty Policy").
20. Section 113(e)of the Act requires EPA to take into consideration various penalty
assessment criteria. These criteria are as follows: the size of the business,the economic impact
of the penalty on the business, the violator's full compliance history and good faith efforts to
comply, the duration of the violation,payment of penalties previously assessed for the same
violation,the economic benefit of noncompliance, the seriousness of the violation, and other
factors as justice may require.
21. To develop the proposed penalty,Complainant has considered the facts and
circumstances of this case with reference to the CAA Penalty Policy,where!applicable. The
CAA Penalty Policy provides a rational, consistent and equitable methodology for applying the
statutory penalty criteria listed above to particular cases.
22. The duration of Respondent's violations totaled 992 (nine hundred ninety-two)
minutes, and the violations occurred in a densely populated residential area. The violations
caused actual harm: diesel emissions are probable human carcinogens, affect respiratory health in
the community, and contribute to ozone formation. Respondent's disregard of the idling
regulations also caused harm to the regulatory scheme of the Massachusetts SIP. The proposed
penalty of$109,120 reflects the duration and seriousness of the violations, and the size of
Respondent's business.
23. No penalty adjustments are proposed based on compliance history and good faith
efforts to comply, or for the payment of penalties previously assessed for the same violations,as
Page 7
Material Installations Complaint, Docket No. CAA-01-2004-0086
these factors do not appear applicable. EPA is not aware of quantifiable economic benefit
pP any q
that Respondent derived from the violations. Finally, EPA does not believe that an adjustment
for the economic impact of the penalty on Respondent's business is appropriate;however, an
adjustment for this factor will be considered if properly raised and documented by Respondent.
For further details regarding EPA's determination of the proposed penalty,please see the penalty
calculation worksheet appended to this Complaint as Attachment I.
24. Payment of the above-proposed penalty may be made by cashier's or certified
check,payable to the"Treasurer,United States of America," and mailed to:
U.S. EPA—Region I
P.O. Box 360197M
Pittsburgh,PA 15251
Copies of the check must be sent to the Regional Hearing Clerk and to Joshua Secunda, Senior
Enforcement Counsel, at the addresses provided in Section V below.
V. NOTICE OF OPPORTUNITY FOR HEARING
25. As provided by Section 113(d)of the Act,Respondent has the right to request a
hearing on the issues raised in this Complaint. Any such hearing shall be conducted in
accordance with the Consolidated Rules of Practice Governing the Administrative Assessment of
Civil Penalties, set forth at 40 C.F.R. Part 22. Note that Respondent's request for a hearing must
be incorporated in a written Answer filed with the Regional Hearing Clerk within 30 days of
service of this Complaint. See 40 C.F.R. § 22.15.
26. Respondent's Answer must be filed with the Regional Hearing Clerk at the
following address:
Page 8
Material Installations Complaint,Docket No. CAA-01-2004-0086
Regional Hearing Clerk
U.S. EPA—Region I
Suite 1100(Mail Code RAA)
One Congress Street
Boston,Massachusetts 02114-2023
A copy of the Answer, and of all subsequent pleadings,must be served on EPA at the following
address:
Joshua Secunda, Senior Enforcement Counsel
U.S. EPA-Region I
Suite 1100(Mail Code SEL)
One Congress St.
Boston,Massachusetts, 02114-2023
27. In its Answer,Respondent may contest, among other things, any material fact
contained in the Complaint and/or the appropriateness of the proposed penalty. As required by
40 C.F.R. §22.15,Respondent's Answer shall clearly and directly admit,deny or explain each of
the factual allegations contained in the Complaint as to which Respondent has any knowledge.
Where Respondent has no knowledge as to a particular factual allegation and so states, the
allegation is deemed denied. The Answer shall also state:(1)the circumstances or arguments
alleged to constitute the grounds of any defense; (2)the facts which Respondent disputes; (3)the
basis for opposing any proposed relief, and, (4)whether a hearing is requested. Any failure of
Respondent to admit, deny or explain any material fact contained in the Complaint constitutes an
admission of that allegation.
28. Instead of filing an Answer, Respondent may choose to pay the proposed penalty
within 30 days after receiving the Complaint, or may file a statement with the Regional Hearing
Page 9
Material Installations Complaint,Docket No. C?3A-01-2004-0086
Clerk within 30 days of receiving the Complaint, stating that it agrees to pay the proposed
penalty within 60 days of receipt of the Complaint. See 40 C.F.R. § 22.18(a).
VI. POSSIBILITY OF DEFAULT
29. If Respondent fails to file a timely Answer to the Complaint, or fails to otherwise
resolve the action in accordance with 40 C.F.R. § 22.18(a),Respondent maybe found to be in
default pursuant to 40 C.F.R. § 22.17. For purposes of this action only, default by Respondent
constitutes an admission of all facts alleged in the Complaint and a waiver of Respondent's right
to contest such factual allegations. See 40 C.F.R. § 22.17.
VII. SETTLEMENT CONFERENCE
30. Whether or not Respondent requests a hearing, it may confer informally with EPA
concerning the alleged violations or the amount of the proposed penalty. Respondent may wish
to be represented by counsel at the informal conference. If a settlement is reached, it will be
finalized by the issuance of a written Consent Agreement and Final Order by the Regional
Judicial Officer of EPA Region I. To explore the possibility of settlement in this matter,contact
Joshua Secunda, Senior Enforcement Counsel at the address provided above, or by telephone at
(617) 918-1736. Please note that a request for an informal settlement conference does not extend
the 30-day period for the filing of Respondent's Answer to the Complaint.
SO ISSUED:
A-UG u r' 00
Date: 11 � Z j
Step en . Perkins,Director
Office of Environmental Stewardship
EPA Region I
Page 10
Material Installations Complaint,Docket No. CM-01-2004-0086
ATTACHMENT 1
Penalty Calculation Worksheet
Material Installations,Inc
North Andover, MA
CAA-01-2004-0086
Violation:
Between August 18, 2003, and March 3,2004, Material Installations allowed several delivery trucks
(its own trucks as well as the trucks of its delivery contractors)to idle in excess of the five minute
idling limit at its loading dock on its North Andover, MA.property.The table in paragraph 11 of the
complaint shows 58 idling events in which the total idling time was greater than five minutes.These
58 events.resulted in a total of 992 minutes of illegal idling.
Gravity Penalty:
Under the Penalty Policy,the usual approach to calculating the gravity-based penalty for these
violations would be to assign penalty components to the level of the pollutants emitted,the
sensitivity of the environment, and the duration of the violations in days or months. See pages 10-12
of the Clean Air Act Stationary Source Penalty Policy. Here,the gravity elements of the penalty
policy are difficult to apply because a)the Massachusetts idling rule is not expressed in terms of
pollutant emissions; and b)the:duration of the idling violations is measured in minutes,rather than in
days or months. As in past idling cases,this complaint assesses$50 per minute of idling violation.
992 minutes * $50/minute= $49,600
inflation adjustment(10%)' $ 4,960
Total $54,560
i
Size of Violator:
No information about this company's net worth,current assets, or annual sales is currently available.
The size of violator penalty component may be reduced to half of the entire gravity component.
Therefore,this complaint seeks a size of violator component equal to half the entire gravity
component.The size of violator component can be adjusted downward if additional information
about the company's finances becomes available.
i,
Economic Benefit:
At this time,there is no reason to believe that Material Installations realized any economic benefit by
violating the Massachusetts idling law.
Total Penalty:
Basic Gravity $54,560
Size of Violator 54,560
Economic Benefit 0
Total $109,120
1See 69 FR 7121 (February 13,2004):Clean Air Act judicial and administrative penalties raised from
$25,000 to$27,500 and to$32,500.
J�SEOS7-4,- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION I
A '°z ONE CONGRESS STREET SUITE 1 100
o a BOSTON, MASSACHUSETTS 02114-2023
y�F .or
x'44 PROIEG�
August 11, 2004
Ms. Wanda Rivera
Acting Regional Hearing Clerk
U.S. Environmental Protection Agency
Region 1
One Congress St.
Suite 1100
Boston,MA 02114-2023
Re: In the Matter of Materials Installation Co.;
Docket No.: CAA-01-2004-0086
Dear Ms.Rivera:
Enclosed for filing in the above-referenced matter are the original and copy of the Administrative
Penalty Order, and a certificate of service.
Thank you
for ur attention to this matter.
Since
Jo a da
S 'o nfCounsel
nclosures
cc: Mr. Michael J Farrow
Chief Executive Officer
Material Installations,Inc.
11 Bayfield Drive
North Andover,MA 01845
Benjamin B. Tymann
Mintz, Levin, Cohn,Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston,MA 02111
f
CAA-01-2004-0086
In re:
Material Installations Co., Inc.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Complaint and Notice of Opportunity for a Hearing has been
sent to the following persons on the date noted below:
Original and one copy,hand-delivered: Wanda Rivera
Acting Regional Hearing Clerk(RCH)
U.S. EPA,Region I .
One Congress Street, Suite 1100
Boston,MA 02114-2023
Copy of Complaint and 40 C.F.R. Michael J. Farrow, Chief Executive Officer
Part 22, first class mail, return receipt Material Installations,Inc.
requested: 11 Bayfield Drive
North Andover,MA 01845
Copy of Complaint and 40 C.F.R. Benjamin B. Tymann
Part 22, first class mail: Mintz,Levin,Cohn,Ferris, Glovsky and Popeo.
One Financial Center
Boston,MA 02111
Dated: O/
JrSEnvironmental
Secunda
SEnforcement Counsel(SEL)
Protection Agency,
Region 1
One Congress Street, Suite 1100
Boston MA 02114-2023
Tel(617) 918-1736
Fax (617)918-1809
Page 11
Material Installations Complaint, Docket No. CAA-01-2004-0086