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UNITED STATES 
ENVIRONMENTAL PROTECTION AGENCY



BEFORE THE ADMINISTRATOR










IN THE MATTER OF:             )
                              )
MCKINNEY SMELTING, INC.,      )  TSCA Docket No. VI-556C(P)
                              )
               Respondents    )













ORDER GRANTING THIRD MOTION FOR PERMISSION

TO CONDUCT FURTHER DISCOVERY




	By motion dated April 9, 1998, Complainant seeks to withdraw
its Second Set of Interrogatories and Requests for Production and
to conduct further discovery.  Grounds for the motion are that on
March 26, 1998, Ferex Corporation purchased Respondent's assets,
changing Respondent's financial status, and the information
Complainant previously requested is no longer relevant, and
Complainant now seeks new information as to Respondent's
financial condition.
	Complainant asserts that the discovery will not unreasonably
delay the proceeding, because the information should be readily
available to Respondent or its accountant, that the information
is not otherwise obtainable, and that it is of significant
probative value of the central issue of the case, namely the
appropriate penalty.
	Complainant seeks several items of information, including a
Schedule of Indebtedness, copies of agreements and exhibits
referenced in the Asset Purchase Agreement with Ferex,
Respondent's most recent financial and operating statements,
depreciation schedule, Respondent's sole shareholder's financial
information, copies of a factoring advances agreement and
agreements regarding a Notes Payable balance.

	To date, Respondent has not responded to the motion.  The
Rules of Practice, 40 C.F.R. Part 22, provide at Section
22.16(b), that a written response to a motion must be filed
within ten days after service of the motion.  Five days is added
to that period where the motion is served by mail.  40 C.F.R. §
22.07(c).  Thus, a response to Complainant's motion was due on
April 24, 1998.


	Section 22.16(b) provides further, "If no response is filed
within the designated period, the parties may be deemed to have
waived any objection to the granting of the motion."  Respondent
is deemed to have waived any objection to the granting of
Complainant's motion, and Complainant's discovery request was
supported by a memorandum of law and appears reasonable in the
circumstances of this case.  This proceeding concerns alleged
violations of the Toxic Substances Control Act (TSCA), under
which factors to be considered in determining the amount of a
civil penalty include the respondent's ability to pay and the
effect of the penalty on the respondent's ability to do business.
TSCA § 16(a)(2)(B), 15 U.S.C. § 2615(a)(2)(B).  For those
reasons, the Complainant's motion to conduct further discovery
will be granted.   



Accordingly, IT IS ORDERED THAT: 


1.	Complainant's Motion to Withdraw its Second Set of
Interrogatories is GRANTED.  


2.	Complainant's motion for permission to conduct further
discovery is GRANTED.  Respondent shall provide answers to
the interrogatories and copies of the documents requested
within twenty (20) days from the date of this Order.    




 

                                 ________________________________

                                 Susan L. Biro 

                                 Chief Administrative Law Judge


Dated:     May 5,1998

           Washington D.C.
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