*

existing universe and the proportion of these UST systems that have leaked or are presently leaking, there is a need to alleviate this important threat to the nation's groundwater resources.” Id. at 37,097. EPA noted in Musts for USTS that "[s]everal million underground storage tank systems in the United States contain petroleum or hazardous chemicals. Tens of thousands of these USTS, including their piping, are currently leaking. Many more are expected to leak in the future," and that leaking USTS can cause fires or explosions and can contaminate ground water. Musts for USTS at 1.

Furthermore, in this case, as the Presiding Officer observed, “the condition of these aging tanks *** increased the likelihood that corrosion would cause the gasoline-contaminated water to be released into the environment." Initial Decision at 12. Morever, any release of gasolinecontaminated water has the potential to cause "significant environmental harm" because of the residential character of the area where the tanks were located and the fact that wells were located nearby. Id. at 13. Both because of the importance of the permanent closure requirements to the UST regulatory program and because of the potential for harm, we believe there is ample support for the Presiding Officer's conclusion that the violation is serious.

Second, we agree with the Presiding Officer that V-1 did not act in good faith after it was notified in late 1993 initially by IDEQ and subsequently by the Region that it was in violation of the UST regulations. As the Presiding Officer states, “V-1 has not offered a sufficient explanation as to why it took so long to comply with the UST regulation,” after being advised by the Region that it was not in compliance. Id. at 13.

Moreover, we regard the Presiding Officer's observation that V-1 acted in good faith prior to November 1993 as charitable at best. See Initial Decision at 13. In truth, as noted supra, V-1 did not even satisfy all of the steps outlined in Musts for USTS (for example, it did not notify the regulatory authority before purporting to effect a change-in-service). Furthermore, the Musts for USTS guidance advised V-1 to consult the regulations to ascertain the specific requirements with which it must comply. Musts for USTS at 1. The fact that the Musts for USTS guidance did not specifically state that a “site assessment” is required to effect a change-inservice is immaterial-Musts for USTS provides notice of a site assessment requirement by advising the reader it must determine if any damage to the environment was caused while the USTS held regulated substances. Moreover, the site assessment requirement is highlighted in the General Instructions to the Amended Notification that V-1 filed with IDEQ in 1991. R Ex 2, at 6. See supra part III.A.2. Thus, by no later than July 1991,

V-1 had received actual notice of the site assessment requirement. Nevertheless, since we have concluded that the seriousness of the violation, coupled with V-1's lack of good faith after November 1993, amply supports the assessment of a civil penalty of $25,000, we are not basing our penalty assessment on any lack of good faith V-1 may have demonstrated before November 1993.

We recognize that this penalty amount is substantially above the $300.00 amount contained in the field citation the Region issued to V-1 in 1994. We nonetheless find it to be reasonable, particularly in light of the company's continued non-compliance after the field citation was issued. The amount assessed is substantially below that which could have been assessed given the years of non-compliance," and, in our view, is fully warranted. We thus affirm the $25,000 penalty assessment."

IV. CONCLUSION

The Presiding Officer's finding that V-1 Oil Company is liable for violation of 40 C.F.R. § 280.70(c) is affirmed. A civil penalty of $25,000 is assessed. V-1 shall pay the full amount of the civil penalty within sixty (60) days of receipt of this final order, unless otherwise agreed by the parties. Payment shall be made by forwarding a cashier's check or certified check in the full amount payable to the Treasurer, United States of America, at the following address:

Mellon Bank

EPA Region 10 (Regional Hearing Clerk)

P.O. Box 360903M

Pittsburgh, PA 15251

42 As noted supra part II.A, RCRA section 9006, 42 U.S.C. § 6991e(d)(2), authorizes the assessment of a civil penalty of up to $10,000 per day per tank for violations of any regulatory requirement or standard imposed pursuant to RCRA section 9003 (release detection, prevention, and correction regulations). The Debt Collection Improvement Act of 1996 directs EPA to make periodic adjustments of maximum civil penalties to take into account inflation. See 31 U.S.C. § 3701. Inflation adjusted penalty amounts have been published at 40 C.F.R. § 19.1 et seq., and apply to violations occurring after January 30, 1997. For any such violations, a penalty of up to $11,000 per day per tank may be assessed. V-1 was in violation of the permanent closure requirements from May or June 1992 until at least October 1997. Indeed, it is not even clear that it has presently complied with all of the site assessment requirements for permanent closure of the USTS.

45 The Region has not appealed the Presiding Officer's decision to decrease the recommended penalty from $36,674 to $25,000. Although we believe the Presiding Officer could have provided a more detailed rationale for his departure from the penalty proposed by the Region, see supra n.22, we decline to disturb the penalty on this basis in the absence of such an appeal.

V-1 is required to comply with the terms of the Compliance Order set forth at pages 14 and 15 of the Initial Decision to the extent that it has not already done so.

So ordered.

CONSOLIDATED SUBJECT INDEX

This consolidated index contains references to key words, phrases, and topics in reported decisions that appear in Volumes 4 through 8 of the Environmental Administrative Decisions. Acronyms are cross-referenced to their full titles, but are used in subheadings.

Abuse of discretion, penalty appeals

applicable law and policy, failure of Presiding Officer to assess

penalty in accordance with ...

appropriateness of penalty.

CWA, institution of serial Class I actions under.

default order, issuance of...

5:706-708; 8:177–191; 8:473–475

6:757; 8:489-495

6:495-497

8:815-323

not holding..

Executive Order 12898 environmental justice

requirements, implementation of. . . .

inconsistent permit requirements for similar projects

in same geographical area.

language, failure to change to reflect responses to

permittee's comments.

modification of RCRA permit deleting operational

time limit for site, classification of . . . .

multi-source modeling analysis, PSD permit's failure to require

preconstruction ambient air quality monitoring,

PSD permit's failure to require.

public hearing, failure to show abuse of discretion in

state portion of RCRA permit, HSWA portion bearing similar requirements to .

6:66-84

8:7-12; 8:21-22

4:762-765

6:180-181

7:66

7:63

6:392-409

4:3-5

Accelerated decisions, penalty appeals

de facto denial of, ruling of on evidentiary hearing viewed as

dismissal of respondent.

EPCRA

reporting requirements, application of

standards for accelerated penalty assessment under .

evidentiary hearing following .

genuine issues of material fact, lack of

legal requirement created by reproposed regulation

7:762; 7:768–769

4:69; 4:70-71

5:798-812; 8:496–516

7:773-775 7:591; 7:592

7:757; 7:761-762; 8:501–509

6:11-12

7:7-8; 7:235; 7:236–237

7:318; 7:325

7:78; 7:84

7:758; 7:769–770

4:781-782

4:736-747

7:605-645

6:23-31

6:780

6:764-769; 6:779–780

5:546-548

6:780 6:23-31

6:764-769; 6:773–779

5:546-548 6:780

5:742-750

6:713-715; 6:717-720

4:81-83