July 29, 2009
Wm. Gerald Hardy, Chief
Land Division
Alabama Department of Environmental Management
P. O. Box 30l463
Montgomery, Alabama 36l30-l463
Re: Consent Order for Taylor-Wharton Cryogenics, LLC – Theodore, Mobile County
Dear Mr. Hardy:
We are Mobile Baykeeper, a twelve year old nonprofit organization with the mission of providing citizens a means to protect the beauty, health and heritage of the Mobile Bay watershed. We are submitting comments on the consent order for Taylor-Wharton Cryogenics located in Theodore, AL on behalf of our board, officers, staff, and more than 3,500 members. We are of the opinion that the Alabama Department of Environmental Management has failed to faithfully apply the provisions of the Alabama Environmental Management Act for this project’s violations and has imposed a penalty ($15,000) that is insufficient.
As a result of the Department’s January 27, 2009 site visit, Taylor-Wharton was found to have committed the following violations, as listed in the Consent Order:
failure to properly mark or label containers of hazardous waste and universal waste (three counts), close containers of hazardous waste, universal waste, and used oil (three counts), mark containers of hazardous waste with an accumulation start date, properly document weekly inspections (two counts), comply with requirements for on-site treatment of hazardous waste, post required emergency information next to the telephone, provide adequate hazardous waste training and document same (three counts), containerize waste fluorescent lamps, and document accumulation time for universal waste.
According to Ala. Code § 22-22A-5(18)c. (2006 Rplc. Vol.), in determining the amount of any penalty, the Department must give consideration to the standard of care manifested by such person. The Consent Order identifies that Taylor-Wharton “did not exhibit a standard of care commensurate with applicable regulatory requirements until notified by ADEM.” We find that Taylor-Wharton displayed a repeated failure to exercise the degree of care necessary to comply with Department regulations that demonstrates a reckless and/or intentional disregard of the probable consequences. Taylor-Wharton endangered its employees and the public safety as a result of the lax or nonexistent implementation of a employee hazardous materials training program as well the poor management, record-keeping, and control of hazardous waste materials stored onsite at this facility. As a result of this negligence we insist that the current fine levied ($15,000) is an insufficient penalty in relation to standard of negligence that was displayed by Taylor-Wharton Cryogenics LLC and the length of time that negligence was ongoing, according to Taylor-Wharton’s own records as was found during the January 27, 2009 inspection.
In conclusion, we must stress that the Consent Order fails to properly consider the degree of care manifested. We acknowledge that Taylor-Wharton regained compliance within a month of receipt of their official NOV. However, we affirm our concern that the penalties imposed by ADEM upon Taylor-Wharton Cryogenics are inadequate to be a successful deterrent to preempt future violations. We are also curious as to what schedule the Department has for future inspections at this facility to determine compliance and adherence to the terms of the Consent Order.
Thank you, in advance, for your consideration of these comments. If you have any questions or need additional information, please do not hesitate to contact us.
Sincerely,
Casi Callaway Donna Jordan
Executive Director & Mobile Baykeeper Program Director