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In Re. Willie P. Burrell and The Willie P. Burrell Trust

Case Number:TSCA Appeal No. 11-05
ELR Citation:42 ELR 41362

Willie P. Burrell and the Willie P. Burrell Trust (“WB Trust”) appeal from an Order of Dismissal and Default Order and Initial Decision (“Default Order”) issued by Regional Judicial Officer (“RJO”) Marcy A. Toney pursuant to 40 C.F.R. § 22.17(a). The default finding was based on the failure of Willie Burrell and the WB Trust to file a timely answer to a complaint issued by the U.S. Environmental Protection Agency (“EPA”), Region 5 (“Region”) alleging failure to comply with EPA’s regulations known as the “Lead Paint Disclosure Rule,” 40 C.F.R. Part 745, Subpart F, with respect to six rental properties. The Lead Paint Disclosure Rule implements the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. §§ 4851-4856, and Section 403 of the Toxics Substances Reform Act (“TSCA”), 15 U.S.C. § 2683, and generally requires landlords of designated housing built before 1978 to disclose known lead-based paint and lead-based paint hazards to renters, to provide renters with a lead hazard information pamphlet and available reports, and to attach specific disclosure and warning language to leases.

The RJO’s default finding constitutes an admission of all facts alleged in the complaint in the proceeding and a waiver of Willie Burrell and the WB Trust’s right to contest those factual allegations. As a result, the RJO found Willie Burrell and the WB Trust, as lessors of apartment units in Kankanee, Illinois, liable for violations of TSCA section 409, 15 U.S.C. § 2689. The RJO assessed a penalty in the amount of $89,430, as proposed by the Region, finding the amount to be within the range of penalties provided in the penalty guidelines with no documented basis for adjustment.

Held: The Environmental Appeals Board (“Board”) affirms the RJO’s default finding and penalty assessment.