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In re Munce's Superior Petrolum Products Inc.

12/07/2012

Case Number:CWA Appeal No. 12-04
ELR Citation:42 ELR 41364

Munce’s Superior Petroleum Products, Inc. (MSPPI) appeals from an Initial Decision and Default Order issued by Acting Presiding Officer (APO) LeAnn Jensen pursuant to 40 C.F.R. §22.17(a). The default finding was based on the failure of MSPPI to file a timely answer to an administrative complaint issued by the U.S. Environmental Protection Agency (EPA), Region 1 (Region). The Region’s complaint alleged violations of the requirement to respond to a request for information under Clean Water Act (CWA) section 308, 33 U.S.C. §1318, and the requirement to to maintain and implement Spill Prevention, Control, and Countermeasure plans under 40 C.F.R. §112.3(a) of the Oil Pollution Prevention regulations, promulgated under the authority of CWA section 311(j), 33 U.S.C. §1321(j).

After MSPPI failed to file a timely answer to the administrative complaint, the Region filed a motion for default pursuant to 40 C.F.R. § 22.17(a). MSPPI then filed a “Suggestion of Bankruptcy and Response to Order to Clarify and Supplement the Record,” informing the APO that MSPPI had filed a chapter 11 bankruptcy proceeding in the U.S. Bankruptcy Court for the District of New Hampshire and arguing that the EPA administrative penalty proceeding should be stayed pursuant to the automatic stay provision of section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a). The APO concluded that the automatic stay does not apply to bar this administrative penalty assessment proceeding, found MSPPI in default and liable for the violations as allegedthe administrative complaint, and assessed the Region’s proposed penalty of $46,403.

MSPPI’s appeal asserts that the Bankruptcy Code’s automatic stay provision bars the APO’s determination of the amount of the administrative penalty in this proceeding.

Held: The Environmental Appeals Board affirms the Initial Decision and Default Order.