Harborlite Corp. v. I.C.C., 613 F.2d 1088, 1092 (D.C. Cir. 1979); Amalgamated Meat Cutters, AFL-CIO v. Connally, 337 F. Supp. 737, 758 (D. Colo. 1971).

Against this background I conclude that service of EPA's complaint by registered mail, return receipt requested and signed by Katzson Brothers' secretary, was fair and proper under Federal law.6 The private interest at stake is Katzson Brothers' manufacture of Kaybro Algaecide as a properly registered producer. Little risk of erroneous deprivation of that interest attended the process used. EPA made a concerted effort to resolve this matter without litigation. Katzson's response was a history of unreturned phone calls and unanswered letters.7 Process was obstructed by Katzson's failure to register an agent, as required by state law.8 EPA reasonably assumed that Katzsons' secretary, J. Rudisill, would accept service in the scope. of her employ and as a representative of the business, and deliver the complaint to her employer.9 These reasonable efforts were adequate even though allegedly unsuccessful. Day v. J. Brendan Wynne, D.O., 702 F.2d 10 (1st Cir. 1983); Stateside Machinery Co., Ltd. v. Alperin, 591 F.2d 234 (3d Cir. 1979).

Due process does not require more of EPA in its effort to secure compliance with environmental legislation. Under Federal notions of fairness, Katzson Brothers' secretary was a proper signator of the return receipt. Service of process was properly effected under 40 CFR § 22.05(b). 10

In light of my conclusion that Katzson had notice of the complaint, I must affirm the decision of the Regional Administrator to reject the Motion to Vacate the Default Order due to a lack of show

6 Colo. Rev. Stat. §7-3-112 (1963) provides that where a domestic corporation fails to register an agent, substituted service may be had on the secretary of state and by registered mail to the corporation. EPA did not provide the secretary of state with a copy of the complaint.

7 See International Controls Corp. v. Vesco, 593 F.2d 166 (2d Cir. 1979) (service by extraordinary means proper where defendant had a long history of avoiding process servers).

8 Colo. Rev. Stat. §7-3-110 (1963); see also Jardine, Gill & Duffus, Inc. v. MN Cassiopeia, 523 F. Supp. 1076 (D. Md. 1981) (constructive service upheld where defendant failed to appoint agent).

9 See Hynes v. Donaldson, 155 Colo. 456, 395 P.2d 221 (1964) (business activity defined as acting within scope of authority in furtherance of business purposes); see also n. 5, supra, indicating that Rudisill would have been properly served under state laws regarding substituted service.

10 It is significant that Katzson suffered from no acts of "sabotage" in the timely receipt of the Default Order, and contacted Complainant on the date of receipt.

ing of good cause. Further, insofar as a return receipt was signed by Ms. Rudisill, I hold that Katzson had notice of the proposed order for default.

Finally, as to the issue of the proper assessment of a penalty, I agree with the Regional Administrator that the fine comported with EPA guidelines. Guidelines for Assessment Section 14(a); Citation Charges for Violations, 39 Fed. Reg. 27711 (July 31, 1974). Further, the Regional Administrator's Default Order clearly referenced the applicable factors relied upon in calculating the penalty.11 Contrary to Katzson's assertion, the Consolidated Rules of Practice do not require an express finding that a Motion for Default state that a copy of the rules was served with the complaint; nor must the complaint allege that the violation caused harm to the environment. 40 CFR §§ 22.17(c); 22.14(a). In light of my finding that Katzson had notice of the complaint, I am not persuaded that a copy of the consolidated rules did not accompany the complaint.

The Default Order is affirmed.

FINAL ORDER

A civil penalty of $4,200 is assessed against Respondent Katzson Brothers, Inc. for failure to file a Pesticide Report in violation of FIFRA § 7(c) (1) and 40 CFR § 167.5(c). Payment shall be made within sixty days of this final order, unless otherwise agreed to by the parties. A cashier's check or certified check for the full amount of the penalty, made payable to the Treasurer, United States of America, shall be sent to the Regional Hearing Clerk, EPA Region VIII, P.O. Box 360859M, Pittsburgh, PA 15251.

So ordered.

1140 CFR §22.17(a) prescribes that, for purposes of the pending action only, default by a respondent shall constitute an admission of all facts alleged in the complaint and a waiver of a right to a hearing on those facts.

IN THE MATTER OF EUREKA CHEMICAL COMPANY

SPCC Appeal No. 84-1

Permit No. SPCC-IX-404C

FINAL ORDER

Decided November 14, 1985

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Ronald L. McCallum, Chief Judicial Officer:

Eureka Chemical Company (Eureka) appeals the decision of the Presiding Officer to assess a penalty of $1,500, following a hearing held pursuant to 40 CFR Part 114, for failure to prepare and maintain a Spill Prevention Control and Counter-measure (SPCC) Plan in accordance with 40 CFR Part 112. Eureka contends that the penalty imposed was improper because the decision of the Presiding Officer was rendered more than thirty days after the hearing in contravention of 40 CFR § 114.10; that the Presiding Officer's decision was not supported by the evidence; that 40 CFR Part 112 is unenforceable because it relies on a definition of harmful quantities of oil, found in Part 110, which awaits redefinition by the President of the United States; and, that the violation of Part 112 should be dismissed as de minimis in the extreme. Upon thorough review of Eureka's written appeal, the Region's brief on appeal, the Presiding Officer's opinion and other materials forwarded as part of the record, I conclude that the decision of the Presiding Officer should be affirmed.1

I

Eureka is a manufacturer of corrosion materials located in south San Francisco. On May 3, 1978, an inspection by the United States Environmental Protection Agency (EPA) resulted in a finding of a

1The Chief Judicial Officer, as the Administrator's delagatee, has the authority to decide this appeal under 40 CFR Part 22 (1984).

possibility of an oil discharge from Eureka's storage tanks into a storm drain which ultimately flows into San Francisco Bay. The inspector concluded that Eureka was in violation of EPA regulations for failure to prepare an SPCC Plan and had not provided secondary containment for its truck tank unloading area. A complaint and notice of opportunity for hearing was issued on August 8, 1978. The case was decided on stipulated testimony and briefs of the parties filed on August 11, 1981. On March 31, 1982, the Presiding Officer filed a Memorandum Opinion and invited comments. The Presiding Officer filed his Initial Decision on December 27, 1983, finding that oil could reasonably be expected to be discharged from Eureka into Colma Creek, a water of the United States, in substantial quantities and that Eureka had not prepared an SPCC Plan as required under 40 CFR Part 112. He assessed a penalty of $1,500, but ordered that it be remitted in full if there were no further violations before April 1, 1984. Eureka appealed on January 18, 1984.

II

Eureka argues that this case should be dismissed due to the Presiding Officer's failure to render a decision within thirty days of the filing of the stipulated testimony, as required by 40 CFR § 114.10. Absent specific allegations of prejudice resulting from the delay, I find that the error was harmless. See In Re: Brewer Chemical Corp., SPCC IX 27C; In Re: Proctor Coal Company, SPCC Docket No. I-76.

Eureka next argues that the evidence was insufficient to support a finding that there existed a reasonable expectation that oil, in amounts which may be harmful, could be discharged into navigable waters. My review of the stipulated testimony leads to the conclusion that the Presiding Officer could reasonably have found that several thousand gallons of oil might be discharged into Colma Creek.

The parties presented the stipulated testimony of their conflicting experts as to the potential for an oil spill. The evidence showed that Eureka had three above-ground 10,000 gallon storage tanks for 150 process oil and one 2,000 gallon tank for diesel oil within fifteen feet of a storm drainage opening. Eureka's plant manager testified that the process oil tanks were filled three times a week; the diesel tank was filled only two or three times a year. He opined that no more than ten gallons could conceivably spill due to mishap, an amount too small to reach Colma Creek. His opinion was based on evidence that Eureka contracts for oil delivery with a dependable driver who undertakes fastidious precautions in refilling the tanks.

In contrast, an expert for EPA testified that a spill might occur from overfilling the storage tanks, from a combined failure of main and check valves on a tank, or from an equivalent failure with a tank truck. The EPA inspector testified that his estimate of the volume of a potential spill was based on the maximum contents of the tank truck's single largest compartment and on the maximum contents of the single largest storage tank: 2,100 to 10,000 gallons.

I am persuaded that there exists a reasonable possibility, through human or mechanical error, of an oil spill of several thousand gallons which, flowing through Colma Creek, would cause a "film or sheen upon or discoloration of the surface" of San Francisco Bay. 40 CFR §§ 112.3; 110.3. The absolute purpose of the Clean Water Act (CWA) § 101, 33 U.S.C. § 1251 (1978), is to eliminate the discharge of pollutants into the navigable waters. Thus, I must exercise caution out of respect for the infinite possibilities for error inherent in the bestlaid plans. Respondent's own testimony reveals that the three process oil tanks are each filled one hundred fifty times per year, a total of four hundred fifty refills per year. This amount of activity involving the hose fittings and volume of oil flowing into the tanks leads me to agree with the Presiding Officer that the preponderance of the evidence shows that a substantial spill is possible.

Eureka next argues that 40 CFR § 112.3, requiring an SPCC Plan, is unenforceable as a result of the failure of the President to draft new regulations defining harmful quantities of oil in navigable waters pursuant to amendments to the Clean Water Act $311(b) (3) and (4), 33 U.S.C. § 1321(b) (3) and (4) 1978). Section 311(b) (3) and (4) prohibits the discharge of both oil and hazardous substances. The statute is implemented, in pertinent part, through 40 CFR Parts 110 and 112 relating to regulable quantities of oil spillage; and through 40 CFR Part 117 (formerly Part 118) relating to regulable quantities of hazardous substance spillage. Part 112, requiring an SPCC plan, incorporates the definition of harmful quantities of oil by reference to 40 CFR § 110.3. Eureka's argument, briefly, is that an amendment to the governing statute, Sections 311(b) (3) and (4), in response to a court challenge to the definition of hazardous substances under Part 118, implicitly requires a redefinition of regulable quantities of spilled oil. After review of the legislative history of the statute and regulations, I find no intent on the part of Congress to require a rewrite of Parts 110 and 112. Therefore, I conclude that Section 112.3 is enforceable against Eureka.

Prior to its amendment in 1978, Section 311(b) (3) and (4) prohibited the discharge of oil and hazardous substances in quantities which