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In re Four Strong Builders, Inc.

07/11/2006

Case Number:CAA Appeal No. 05-02
ELR Citation:36 ELR 41302

On July 6, 2005, United States Environmental Protection Agency (EPA) Administrative Law Judge (ALJ) Carl C. Chameski found Four Strong Builders, Inc. (Four Strong) of Clifton, New Jersey, to be in default in a Clean Air Act administrative enforcement proceeding involving asbestos abatement activities at a shopping center in Tullytown, Pennsylvania. The ALJ entered a Default Order against Four Strong pursuant to section 22.17 of EPA's Consolidated Rules of Practice, which provides that in cases where a respondent fails to file a prehearing exchange or respond to a presiding officer's order, default is warranted. Four Strong now comes before the Environmental Appeals Board (Board) and asks that the ALJ's Default Order be vacated and the matter remanded to the ALJ for a decision on the merits.

To determine the worthiness of a challenge to a default order, the Board will evaluate "the totality ofthe circumstances" involved in the case. This evaluation includes an examination of the alleged procedural omission that prompted the default order and whether any legitimate excuse or other justification for the omission exists. The evaluation may also include an analysis of the likelihood of the defaulting party's success on the merits.

Held: The Board affirms the ALJ's finding of default and upholds the Default Order.

Four Strong contends that the totality of the circumstances in this case justify the setting aside of the Default Order. To support this argument, Four Strong's counsel cites his lack of familiarity with defending administrative enforcement actions in the environmental context, his confusion related to multiple asbestos cases filed against Four Strong, his associate's report (upon which he allegedly relied) that the matter had been settled as to all parties, and his engagement in other matters and heavy work load during the relevant time fiame. The Board finds that none of these circumstances are legitimate bases for excusing Four Strong's repeated disregard of the ALJ's orders in this case.

Four Strong also contends that it has meritorious defenses to the charges in this case. The Board finds otherwise, holding that Four Strong proffered meager evidentiary support for its positions and thus failed to establish a "strong probability" of success on the merits.

Accordingly, the Board finds no error or abuse of discretion in the ALJ's decision to enter a default judgment in this case, affirms the Default Order, and assesses the proposed civil penalty of $24,310 against Four Strong.