Apartment Investment and Management Company (Board decision, November 16, 2012)

Plain-English summary

Apartment Investment and Management Company asked the Environmental Appeals Board to terminate a 2002 consent agreement concerning lead-based paint compliance at certain properties. The company reported that it had fully performed the agreement, maintained compliance with the lead-based paint regulations, and completed the required reporting. It also argued that continued operation of the agreement was no longer necessary and provided no public benefit. EPA and the U.S. Department of Housing and Urban Development did not oppose the motion. The Board granted the motion and ordered the consent agreement terminated.

Decision snapshot

• Cited authorities: 40 C.F.R. § 1.25(e)(1); 42 U.S.C. § 4851
• Outcome: The Board granted the motion and terminated the consent agreement.
• Key point: The EAB may terminate a consent agreement when the regulated party shows that it has completed the agreement's obligations and the agencies do not oppose termination.

Full text (EPA EAB public release)

           BEFORE THE ENVIRONMENTAL APPEALS BOARD
        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, DC


                                 )

In re: )
) Docket No. TSCA-HQ-2002-0003
Apartment Investment & )
Management Co. )
)
------------------------)
ORDER GRANTING MOTION TO TERMINATE CONSENT AGREEMENT

    The above-captioned matter was initiated pursuant to the U.S. Environmental Protection

Agency's ("EPA's") Incentives for Self-Policing: Discovery, Disclosure, Correction and

Prevention of Violations, 60 Fed. Reg. 66,706 (Dec. 22, 1995) ("Audit Policy"), updated by

65 Fed. Reg. 19,617 (Apr. 11, 2000). Pursuant to the Audit Policy, Apartment Investment &

Management Co. ("AIMCO") proposed auditing certain properties to determine compliance with

the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. §§ 4851, et seq. The

U.S. Department of Housing and Urban Development ("HUD"), the U.S. Environmental

Protection Agency ("EPA"), and AIMCO agreed to commence and conclude this matter through

execution of a consent agreement ("Consent Agreement"), which the Board entered through a

final order ("Final Order") on January 15, 2002. Motion at 1. The Board incorporated the

Consent Agreement into the Final Order and directed AIMCO to "comply with all of the terms of

the Consent Agreement." Motion, Ex. A (Final Order).

    By motion dated October 19, 2012, AIMCO seeks to terminate the Consent Agreement,

which provides that "AIMCO's obligations under the Consent Agreement shall terminate when it

has performed all of the terms of the Consent Agreement." Motion, Ex. A (Consent Agreement

¶ 93). In support of its motion, AIMCO states that it has "fully and faithfully implemented,

performed and maintained compliance with all obligations and terms of the Consent Agreement

and the lead-based paint regulations and has developed, implemented, and continues to maintain

sophisticated recordkeeping and training protocols for lead-based paint management and

disclosure." Motion ¶ 6. AIMCO adds that its "full and faithful compliance with the lead-based

paint regulations and the obligations of the Consent Agreement is reflected in the lack of

reportable activity contained in the two most recent annual reports submitted to EPA and HUD

pursuant to Section K, Paragraph 77 of the Consent Agreement" and that "[t]he operation of the

Consent Agreement is no longer necessary and its continued existence does not provide any

public benefit." Id. ¶¶ 7-8. Finally, AIMCO indicated in a Statement of Meet and Confer dated

November 8, 2012, that EPA and HUD did not oppose the motion. See also EPA Notice of Non-

Opposition (Nov. 15, 2012).

     For good cause shown, AIMCO's motion is GRANTED. The Board ORDERS that the

Consent Agreement be terminated.

     So ordered.

Dated: ENVIRONMENTAL APPEALS BOARD
NOV 16 2012

                                                    By: [signature] Kathie A. Stein
                                                          Environmental Appeals Judge


     1 The panel deciding this matter consists of Environmental Appeals Judges Catherine R.

McCabe and Kathie A. Stein. See 40 C.F.R. § 1.25(e)(1).

                                             - 2 -


                          CERTIFICATE OF SERVICE

   I hereby certify that copies of the foregoing Order Granting Motion to Terminate

Consent Agreement in In re Apartment Investment & Management Co., TSCA HQ-2002-0003,
were sent to the following persons in the manner indicated:

By U.S. First Class Mail, Return Receipt Requested:
Raymond B. Ludwiszewski
Daniel E. Schmitt
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW
Washington, DC 20036

Matthew Ammon
U.S. Department of Housing & Urban Development
Office of Healthy Homes & Lead Hazard Control
451 7th Street, S.W.
Room P-3206
Washington, DC 20410

By EPA Interoffice Mail:
Mr. Brian T. Dyer
U.S. Environmental Protection Agency
Toxics and Pesticides Enforcement Division (2245A)
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

Dean B. Ziegel
U.S. Environmental Protection Agency
Waste and Chemical Enforcement Division
Office of Civil Enforcement
1200 Pennsylvania Avenue, NW (2249A)
Washington, DC 20460

Date:
NOV 16 2012
[signature]
Annette Duncan
Secretary