United States
Environmental Protectior
Agency
Enforcement Anc
Compliance Mon
(LE-133)
Enforcement
Accomplishments
Report: FY 1989
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FY 1989 Enforcement Accomplishments Report
The FY1989 Enforcement Accomplishments Report was prepared by the Compliance
Evaluation Branch within the Office of Enforcement. Information contained in the
report was supplied by the EPA Regional Offices and Headquarters program
offices.
Printed on recycled paper
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FY1989 Enforcement Accomplishments Report , -ui-i-
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Table of Contents
Subject
I. Messages from William K. Reilly. Administrator, and 1
Tames M. Strock, Assistant Administrator
II. Protecting Public Health and the Environment 5
Through Enforcement
Enforcement case summaries that demonstrate the environmental problems that
prompted EPA's actions, the remedial steps that are being taken to address the
problems, and an assessment of the environmental improvement that is sought.
Section IV of the Report contains many additional, albeit briefer, summaries of
other actions undertaken by the Federal government during the past fiscal year.
III. Environmental Enforcement Activity 15
FY1989 levels of Federal civil and criminal judicial case referrals, administrative
actions, Federal penalty assessments, and State enforcement activity.
IV. Major Enforcement Litigation and Key Legal Precedents 21
An alphabetized summary of important civil and criminal judicial case
settlements, administrative actions, and key court decisions on points of law
that occurred during the year.
V. Building and Maintaining a Strong National 49
Enforcement Program
Summaries of major enforcement program strategies, initiatives, guidance,
and management studies.
VI. Media Specific Enforcement Performance: 61
Resolving Significant Noncompliance
Brief summaries of the Strategic Planning and Management System definitions
of Significant Noncompliance and highlights of recent program performance.
Appendix: Historical Enforcement Data and
List of EPA Headquarters and Regional
Enforcement Information Contacts
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FY1989 Enforcement Accomplishments Report
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My Fellow Citizens:
No doubt many of you remember Earth Day 1970. For many of us who have made our careers in
environmental protection, that day helped us choose our life's work. In a few months, we will celebrate
the twentieth anniversary of Earth Day. This approaching anniversary, like other milestones, prompts
us to reflect on how far we have come and how far we still need to go.
Twenty years ago, the Cuyahoga River in Cleveland occasionally would catch on fire. We would
hear daily that many of our lakes and waterways were on the verge of dying from eutrophication due to
discharge of phosphates and other pollutants. Our eyes and throats burned from auto exhaust and
emissions from industrial plants. Earth Day was a chance for citizens to say, "Enough." As a society, we
demanded that our government take action to protect us and future generations from the dangers of
environmental pollution. The Congress and the President responded with the creation of the
Environmental Protection Agency and the swift passage of two landmark pieces of legislation - the Clean
Air Act Amendments of 1970 and the Clean Water Act of 1972. In the years since then, many other
environmental statutes have been passed, and we have made great strides in abating pollution. EPA and
the States have developed plans to abate pollution, issued permits governing industrial discharges, and
taken enforcement actions to compel compliance with environmental laws.
But we still have a lot more to do to protect public health and the environment. One key element
is, and must continue to be, strict, sustained enforcement of our environmental laws. The pages that follow
tell of some of the actions EPA and the States have taken over the past year to enforce our environmental
laws. Our credibility and effectiveness depends on vigorous enforcement. When President Bush speaks
about the environment, he never fails to mention his commitment to strong enforcement. And thus I am
pleased to introduce this report. For it is a year we at EPA are proud of - record or near-record levels in
virtually every category of enforcement activity.
I want to express my deep appreciation and gratitude to the employees of the United States
Environmental Protection Agency, the United States Department of Justice, the United States Attorneys
offices, State and local pollution control agencies and law enforcement agencies, and the State Attorneys
General for their contributions to the achievements contained in this report. Environmental enforcement
is not a simple job; it is one upon which our county depends.
William K. Reilly,
Administrator
United States Environmental Protection Agency
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FY 1989 Enforcement Accomplishments Report $ ^^2. <
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Dear Fellow Citizens:
It is a particular privilege to serve as Assistant Administrator for Enforcement at this time.
President Bush has stressed his commitment to vigorous environmental enforcement — and gave the
effort a tangible boost by reiterating his commitment in his first budget address to Congress. The
President's choice to lead EPA, William Reilly, has made strong enforcement one of the central themes
of his tenure. And by selecting Henry Habicht, a former Assistant Attorney General for Land and
Natural Resources, as Deputy Administrator, the Bush Administration has assured that the
day-to-day business of the EPA will be imbued with hands-on enforcement sensitivity.
The reason for such an enforcement focus is clear: EPA's credibility and effectiveness as a
regulatory agency ultimately depend on the credibility and effectiveness of its enforcement efforts.
This Administration is firmly committed to full use of EPA administrative, civil and criminal
enforcement capabilities.
This report demonstrates that the enforcement program is strong in terms of civil and criminal
referrals, and administrative actions. Record numbers have been achieved, which present a strong
deterrent message to the regulated community. The increases in administrative actions are particularly
worthy of note, because they show not only the Agency's commitment to the use of new tools provided by
Congress in recent statutory revisions, but also represent the Agency's will to move in a rapid, targeted
way to protect the public health and environment.
The firm commitment of President Bush and Administrator Reilly to improve the already strong
enforcement program is leading to additional initiatives for the coming years. It is our earnest hope,
therefore, that future Enforcement Accomplishments Reports be able to demonstrate further progress.
James M. Strock,
Assistant Administrator for Enforcement
United States Environmental Protection Agency
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FY1989 Enforcement Accomplishments Report
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II. Protecting Public Health and the Environment Through Enforcement
This section highlights the environmental benefits resulting from select major enforcement cases of
the past fiscal year. The expanded case summaries selected for this section of the Report are intended to
provide a more complete picture of the environmental results of enforcement through discussion of the
environmental problem that precipitated the Government's action, the remedial steps that are being
taken, and the actual or anticipated environmental improvement. Section IV of the Report contains many
additional, albeit briefer, summaries of other actions undertaken by the Federal government during the
past fiscal year.
Cannons Engineering Corporation Superfund Sites
On August 14, 1989, the United States District Court for the District of Massachusetts entered two
consent decrees involving 59 potentially responsible parties (PRPs) involved in the four Cannons
Engineering Corporation (CEC) hazardous waste sites. The first consent decree provides for a $33.1
settlement with 47 major PRPs involved at the four sites. Under this settlement, the PRPs will clean up
three of the four contaminated sites at issue, while EPA will continue to clean up the fourth site. The
second consent decree provides for a settlement of approximately $800,000 with 12 de minimis PRPs who
each contributed small volumes of waste to the sites. This settlement represents the largest Superfund
cost recovery agreement to date, and concludes a series of settlements which total $49.2 million, 84 percent
of the total anticipated cleanup cost of the CEC sites.
The sites include CEC facilities in Bridgewater and Plymouth, MA, the Tinkham's Garage site in
Londonderry, NH, and the Gilson Road site in Nashua, NH. CEC purchased the Bridgewater property in
1974 to handle, store and incinerate chemical wastes. The facility conducted hazardous waste recycling
and incineration activities from September 1974 until 1980 when the Commonwealth of Massachusetts
revoked CEC's hazardous waste license because of alleged reporting and waste handling violations.
In the late 1970's, CEC began taking in more waste volume than it could process. To deal with its
excess wastes, CEC shipped wastes from its tanks at the Bridgewater facility off-site to Plymouth and to
the two New Hampshire sites. This excess waste, which was falsely reported to have been incinerated
at the Bridgewater site, was illegally dumped at the Gilson Road site and at the Tinkham's Garage site.
At the Gilson Road site, tanker trucks would unload waste through a pipe leading to an adjacent fill area
and draining into the water table at the site. At the Tinkham's Garage site, the dumping occurred in
septic systems and in open fields adjacent to a residential neighborhood causing soil and groundwater
contamination. Residential drinking water supplies were threatened and had to be replaced at both
sites. CEC was convicted of criminally falsifying its incinerator reports for this scheme. Prior to these
recent settlements, EPA reached administrative settlements valued at about $13.8 million with 301 de
minimis PRPs who each contributed small volumes of wastes to the sites. PRPs have also performed $1.5
million of clean up work at the sites under previous agreements.
The settlement represents a joint effort between the United States, the Commonwealth of
Massachusetts, and the State of New Hampshire. All three entities will be reimbursed for a portion of
their past costs, as well as benefit from the prompt cleanup of the sites. Six non-settling parties have
appealed the District Court decision to the First Circuit Court of Appeals. The federal/state teamwork
continues in defending against this appeal and in litigating against 25 non-settling parties.
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United States versus Chevron Chemical Company, et. al.
(Operating Industries, Inc.) Settlement
On May 11, 1989, the United States District Court for the District of California approved a
settlement valued at more than $66 million with over 100 companies for the Operating Industries, Inc.,
site. Operating Industries, Inc., a hazardous waste landfill in Monterey Park, CA, has been identified by
the federal Superfund program as one of the most hazardous sites in the United States. The settlement
was jointly negotiated by the Department of Justice, EPA and the State of California. The settlement is
one of the largest settlements reached in the Superfund program to date, incorporates the largest cost
recovery settlement to date, and fulfills one of the basic mandates of Superfund by requiring the parties
responsible for the contamination to perform the clean-up.
The Operating Industries, Inc., landfill is a 190-acre landfill which is owned by the former
operators, Operating Industries, Inc. Disposal operations began at the landfill in 1948 when it was
operated by the Monterey Park Disposal Co. In the early 1950's, Operating Industries, Inc., purchased
the landfill. Over the life of the landfill, many wastes have been disposed of at the site, including
residential and commercial refuse, liquid wastes, and various hazardous wastes until operations ceased in
late 1984. Both landfill gas and leachate are generated by the site, and the leachate generated at the
site is a hazardous waste and contains hazardous organic constituents such as vinyl chloride,
trichlorethylene, benzene and toluene.
The potentially responsible parties (PRPs) who participated in the settlement include generators
of hazardous wastes shipped to the site. As part of the settlement, the PRPs are required to design,
construct and operate a leachate treatment facility to treat leachate and other liquids recovered from the
site. Under EPA's supervision, the PRPs will also assume responsibility for the daily operation of the
environmental control systems at the site. These systems include gas extraction, leachate collection,
irrigation, access road maintenance, drainage improvements, surface runoff and erosion control.
According to the settlement, certain of the PRPs will implement these interim cleanup measures
which are estimated at $34 million. The remaining settling parties have agreed to a cash contribution of
$32.1 million. EPA has allocated distribution of the cash payment as follows: $6 million for oversight
costs and $18.5 million to the U.S. government for cleanup costs already spent at the site; $762,000 to the
State of California for past costs; and $7.5 million to be placed in an escrow fund to pay for potential cost
overruns, any additional work in future years and additional past EPA costs. EPA is conducting the
Remedial Investigation/Feasibility Study (RI/FS) to define the extent of the remaining environmental
problems at this site and to select a final remedy. The settlement covers actions to be taken until the
RI/FS is completed in 1992.
United States versus Metropolitan Denver Sewage District No. 1. et al.
On August 17, 1989, a consent decree was entered in the Clean Water Act (CWA) case against
Metropolitan Denver Sewage District No. 1 (Metro), the Denver Water Board and several other parties.
The settlement included injunctive relief in the form of treatment upgrades along with the highest CWA
civil penalty ever obtained against a municipality, $1,125,000.
Through its 20 municipal members and 25 connectors, Metro provides sewage conveyance and
treatment services to approximately 1,250,000 people in the Denver metropolitan area. Metro also
receives wastes from many industrial users of the sewer system. Metro owns and operates its Central
Plant Facility just north of Denver. The Central Plant Facility is a 185 million gallon per-day advanced
treatment facility which features both pure oxygen and conventional activated sludge treatment
complexes, each of which has an outfall to the South Platte River. Also located at the Central Plant is a
pump station owned and operated by the Denver Water Board, which pumps part of Metro's effluent to
the Burlington Ditch in order to satisfy certain water rights. There is a dispute as to whether Metro
actually had in place a National Pollution Discharge Elimination System (NPDES) permit for the
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FY 1989 Enforcement Accomplishments Report I SSI%£ 3
period of the 1970's and early 1980's. This dispute arises because the State of Colorado had difficulty
issuing Metro a final second round permit to implement the water quality standards for the River. Even if
Metro had a permit in place, Metro had by 1983 missed several compliance schedule deadlines for
constructing facilities to remove total residual chlorine, ammonia, and biological oxygen demand (BOD).
The continuing doubt over the existence of a permit and the State's inability to reissue the permit led EPA
in January 1986 to veto a proposed State permit and to assume authority over permit issuance. After this
assumption of authority, EPA in December 1986 issued to Metro its present NPDES permit. The continuing
violations in the form of either discharging without a permit or in violation of its permit led to the
present enforcement action.
The complaint, filed on March 20, 1986, alleged four counts: (1) discharge in violation of Metro's
temporary NPDES permit from March 20, 1981, to December 7, 1981; (2) discharge without a permit from
December 7, 1981, (for discharges in violation of Metro's administratively extended temporary permit);
(3) unpermitted discharges to the Burlington Ditch; and (4) violation of the pretreament regulations of 40
CFR 403.8 for failure to receive timely approval and to implement an industrial pretreatment program
(or, violations of Metro's administratively extended temporary permit related to failure to receive
timely approval of, and to implement an industrial pretreatment program).
The State was named a party defendant pursuant to the Clean Water Act Section 309(e). The
United States filed an amended complaint on August 6, 1987 to add the Denver Water Board as a
defendant for the unpermitted discharges to the Burlington Ditch. Subsequently, the City of Thornton and
various ditch companies were added as parties having an interest in the Burlington Ditch. The claims for
relief in the amended complaint sought both injunctive relief to remedy the permit violations and a
substantial civil penalty for what the Agency believed were serious violations with significant economic
benefit and documented adverse environmental impact.
In accordance with the consent decree Metro has completed a $5 million upgrade of its disinfection
system to control otherwise excessive discharges of both fecal coliform bacteria and residual chlorine.
Metro is also constructing a nitrification/denitrification facility to meet stringent effluent limits for
ammonia. In addition, Metro has substantially upgraded its pretreatment enforcement program by
adopting, among other things, a pretreatment enforcement management system and an industrial user
outreach program. Comprehensive biomonitoring now being conducted by Metro will ensure that Metro's
discharge will not be toxic to aquatic life. Total facility improvements and new programs will cost $30
million.
The Metro case will ultimately result in measurable increases in water quality in terms of decreases
in concentrations of chemical and biological parameters of concern, decreases in general toxicity, and
increases in the amount and diversity of aquatic life below the discharge points. Increases in the
biological health of the South Platte River have already been observed, and significant progress has
been made towards meeting the CWA Section 101(a)(2) fishable-swimmable goals.
United States and STOP, Inc.. versus Environmental Waste Control, Inc.. et al.
On March 29, 1989, EPA and STOP, Inc., a citizens group, obtained a judgment against Environmental
Waste Control (EWC), Inc., for improper hazardous waste management practices under the Resource
Conservation and Recovery Act (RCRA). EPA had alleged the following counts against defendants
regarding the operation of the "Four - County Landfill" in Fulton, IN: (1) operating the landfill without
legal authorization as a result of a false certification for compliance with groundwater monitoring and
insurance requirements; (2) inadequacy in the existing system for monitoring possible groundwater
contamination; (3) violation of the minimum technology requirement designed to limit migration of
contaminants from the disposal area; and (4) the need for corrective action at the site to remedy ongoing
releases of hazardous waste constituents into the groundwater site. This is one of the most favorable
decisions out of a number of cases EPA has successfully prosecuted in an initiative against owners and
operators who have failed to certify proper groundwater monitoring systems and proper financial
capability for hazardous waste management activity.
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The ruling upheld EPA's assertion that the landfill lost its authority to legally operate on
November 8, 1985, after it falsely certified to EPA that the landfill had met both groundwater
monitoring and liability requirements. It also required defendants to cease immediately receiving
hazardous wastes for storage and disposal at the site, and to implement closure upon approval of a closure
plan. In addition, it ordered the defendants to implement the corrective action plan proposed by EPA.
The judgment included the imposition of a civil penalty of $2,778,000, which is the largest civil penalty
assessed by a court under the Resource Conservation Recovery Act.
EWC began operation of its facility in 1972 as a sanitary landfill. Within one mile of the landfill
there are private wells that provide drinking water for local residents. In 1978 the site began accepting
industrial waste for disposal. It obtained interim status on June 16, 1980. EWC had been found to be in
violation of RCRA and State regulations, including deficiencies in EWC's groundwater monitoring
program. As a result of a review of EWC's groundwater monitoring data, the Indiana Department of
Environmental Management discovered that the parameters used as indicators of groundwater
contamination showed a statistically significant increase.
The defendants in this action are: Environmental Waste Control Inc., the corporation that operates
the landfill; West Holding Co., which owns all of Environmental Waste stock and the land on which the
facility is located; James A. Wllkins, president of West Holding Co., and Stephen Shambaugh, president
of Environmental Waste and Vice President of West Control.
Hanford Defense Facilities
On May 15, 1989, EPA, the Department of Energy (DOE), and the Washington Department of
Ecology (Ecology) signed a comprehensive agreement for the cleanup of the Hanford site located in Benton
County, WA. The agreement is embodied in a Federal Facility Agreement and State Consent Order, and
contains schedules for compliance, permitting, closure, and post-closure activities under the Resource
Conservation and Recovery Act (RCRA) and the State of Washington Hazardous Waste Management
Act, and cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and the corrective action provisions of RCRA.
Since 1943, the United States government has manufactured nuclear materials, including plutonium,
for the nation's defense programs at the Hanford site. The manufacture of these nuclear materials
resulted in several waste streams, some of which contain radioactive materials, some of which contain
hazardous materials, and others of which are a mix of radioactive and hazardous materials (mixed
waste). The various waste streams were managed by DOE so as to create approximately 1000
past-practice units or waste management units that are not subject to regulation as treatment, storage, or
disposal units under RCRA. In addition, there are over 50 treatment, storage, or disposal units, which
will continue to handle the hazardous and mixed wastes at the site, that must be permitted and/or closed
in accordance with RCRA and the State of Washington Hazardous Waste Management Act. As a result of
operations at the Hanford facilities, there is significant contamination of the land and groundwater at
the site. Current data reveal tritium and nitrate to be the most widespread contaminates in the
groundwater. Chromium, cyanide, and carbon tetrachloride are among the hazardous chemicals detected
near operating areas.
The funding portion of CERCLA does not apply to Federal facilities such as Hanford. As a result,
despite the fact that the Hanford site is comprised of four National Priorities List (NPL) entries,
Superfund monies are not available for the cleanup of the Hanford site. The Federal Facility Agreement
and State Consent Order embody a legal obligation on behalf of DOE to address the contamination at the
site which is crucial to remediation. The agreement is enforceable by EPA, the State of Washington, and
the citizens of Washington. The agreement entails a 30-year program to address an estimated five
billion cubic yards of chemical and radioactive wastes that have accumulated over the past 45 years at
Hanford. The estimated cost over the first five years is $ 2.8 billion. (Without an agreement, federal
budget constraints would have permitted only a 3% per year growth in funding, totaling only $1.4 billion
over the first five years). Additional research and site investigation is needed before costs can be set for
the entire 30-year term.
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FY1989 Enforcement Accomplishments Report 1^22^'
United States versus McKiel, et al.
On June 29, 1989, Robert and Scott McKiel received twelve- and nine-month jail sentences,
respectively, following their May 12, 1989, guilty pleas stemming from their operation of an
electroplating shop in Lowell, MA. From at least 1986 until their business, Astro Circuit Corp., went
bankrupt and closedin February 1988, the McKiel's supervised the discharge of wastewater contaminated
with high levels of lead, copper, and nickel from the plant into the Lowell sewer system and directly
into a tributary of the Merrimack River. The Merrimack is the source of drinking water for Lowell and
other communities. This is the first environmental prosecution in the District of Massachusetts that has
resulted in jail time.
Robert McKiel, President of Astro Circuit, and Scott McKiel, Vice-President, had been indicted
along with two other Astro Circuit officials on January 31, 1989, on 52 counts of Clean Water Act (CWA)
and Resource Conservation and Recovery Act (RCRA) violations for their illegal water discharges and
for the illegal storage of hazardous wastes without proper permits. Besides prohibiting unpermitted
discharges of pollutants into the waters of the United States, the CWA requires the pretreatment of
wastewater from specific industries prior to their discharge into sewers. Due to their extreme toxicity,
untreated metal finishing wastewaters cause extensive damage to sewage treatment plants that rely on
microbial agents to break down organic matter. Astro Circuit discharged an average 48,000 gallons of
contaminated wastewater per day.
Robert McKiel pled guilty to 11 CWA misdemeanor violations and one RCRA felony count for the
unpermitted storage of hazardous waste (heavy metal-contaminated sludges). In exchange for his plea,
he received a one year and one day sentence, of which he must serve four months. Scott McKiel pled
guilty to the same eleven CWA counts as his father and received a nine-month sentence, of which he must
serve three months. Both were placed on two years probation. EPA has viewed violations of the CWA
pretreatment standards as a serious problem in protecting the waters of the United States, and the
McKiel's sentences have sent a strong message concerning the gravity of their offenses. Such prosecutions
are currently proceeding in other parts of the country. In addition to the McKiel's the indictment also
charged John Shepardson, the company's environmental consultant, for his part in the discharge of toxic
waste into the tributary of the Merrimack River. Shepardson pled guilty on May 4, 1989, and was given a
6-month suspended sentence and 6-months probation. This is the first conviction of an environmental
consultant under the CWA.
United States versus Ocie and Carey Mills
The first defendants to be sentenced for criminal environmental offenses under the tough new U.S.
Sentencing Commission Sentencing Guidelines were committed to 21 months incarceration on April 13,1989,
and were required to pay a fine of $5,000 each. On January 26, 1989, Ocie Mills and his son, Carey, were
convicted by a jury sitting in Pensacola, FL, on all six counts of an indictment charging them with the
knowing and unpermitted excavation and discharge of dredge spoils onto a wetland property, and for the
unpermitted dredging of a canal in navigable waters. Four of the counts constituted felony violations of
the Clean Water Act (CWA), one count was a misdemeanor CWA violation, and the sixth count was a
misdemeanor violation of the Rivers and Harbors Appropriation Act of 1899. An additional condition of
their sentencing is that they must restore, within 90 days of release from prison, the wetland site to EPA
and Corps of Engineers standards. Although the Mills are presently serving their sentences, the case is on
appeal to the Eleventh Circuit Court of Appeals.
The two were indicted on October 24, 1988, for failing to acquire a required U.S. Army Corps of
Engineers permit to fill in a wetland property and for their failure to acquire a Corps of Engineers dredge
permit for a canal they excavated on their property on East Bay, near Pensacola. Four of the five CWA
counts charged in the indictment alleged violations occurring after February 4, 1987, when the Water
Quality Act of 1987 came into effect and made the knowing violation of the Act's requirements (here, the
requirement to acquire a Corps of Engineers Section 404 dredge and fill permit) a felony.
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Also, because two of the felony counts and the one misdemeanor count alleged violations occurring
after November 1,1987, the sentencing judge had to apply the rigorous sentencing guidelines mandated by
Congress in the Sentencing Reform Act of 1984. That statute, enacted to ensure consistency in federal
sentencing of crimes committed after November 1, 1987, requires federal judges to apply a sentence to
individual defendants within a fixed range derived by the Guidelines' matrix calculation. Any
departure from the Guidelines requires a judge to state reasons for applying a different sentence on the
record and is appealable by the Government.
EPA has placed a high priority on protecting wetlands, which serve important functions such as
providing wildlife habitat, serving as flood control barriers, and filtering particulate matter out of tidal
waters. For those reasons, this case is especially significant in that it is the first EPA wetlands case in
which actual jail time was ordered as well as being the first Sentencing Guidelines case for EPA.
Ocean Dumping
In September 1989, EPA filed enforcement actions in federal district court relating to the dumping of
sewage sludge by New York and New Jersey municipalities at the 106-mile site . The nine municipalities
involved are New York City, Jersey City, Rahway Valley Sewerage Commission, Westchester County,
Nassau County, Bergen County, Passaic Valley Sewerage Authority, Linden-Rosselle Sewerage
Authority and Joint Meeting of Essex and Union Counties. The filings were responsive to the requirements
of the Ocean Dumping Ban Act, passed by Congress in 1988, which required the termination of ocean
dumping of sewage sludge and industrial waste by December 31,1991.
The statute requires EPA to enter into compliance or enforcement agreements concurrently with the
issuance of permits in order to ensure that ocean dumping ceases by the 1991 deadline. An enforcement
agreement contemplates that the dumping will continue past the 1991 deadline and is an agreement
between the dumper, EPA and the State. Any dumping after the 1991 date would be deterred by a
mandatory penalty of $600 per dry ton of sewage sludge and be governed by the requirements in the
enforcement agreements which provide an interim schedule for the phase out of ocean dumping and
stipulated penalties for failure to meet interim deadlines. EPA has filed enforcement agreements with
the nine New York and New Jersey municipalities in federal district court.
Ocean dumping of sewage sludge affects the ocean environment as well as coastal areas. Currently,
eight million tons of sewage sludge are dumped by the municipalities per year at the 106-mile site,
located off the coast of Atlantic City, NJ. Generally, ocean dumping of sewage sludge has been linked to
fishkill, shellfish disease and mutations in species which live in the area. The statute provides that the
municipalities develop land-based alternatives for the disposal of sewage sludge. Among these
alternatives are incineration, composting, landfilling, and the conversion of sludge to cover, a material
used in landfills. Although EPA has participated in the hearings regarding the municipalities' choice of
a land-based alternative, the statute expressly allows each locality to choose for itself among the
land-based alternatives.
The ocean environment will benefit from the impact of these agreements. EPA and the Coast Guard
will continue monitoring of the site to gather environmental impact data. The provisions of the
enforcement agreements such as as detailed compliance schedule, stipulated penalties for failure to meet
interim deadlines and a limited force majeure clause will insure that EPA will take enforcement actions
if the statutory requirements or the terms of the enforcement agreements are not carried out.
United States versus Pennwalt
In an unprecedented move, on August 9,1989, the Federal District Court for the Western District of
Washington required Edwin E. Tuttle, chairman of the Philadelphia-based Pennwalt Corporation, Inc.,
to appear in person to enter a guilty plea on behalf of his company for four misdemeanor Clean Water Act
(CWA) charges and one misdemeanor Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA, or Superfund) charge. It should be noted that Mr. Tuttle was not among those
individuals indicted in the case.
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FY 1989 Enforcement Accomplishments Report 1 ^$?2.5
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Pennwalt, one of the largest chemical companies in the U.S., with earnings of $1.1 billion in 1988,
and four corporate officials were indicted on May 19,1988, by a Federal grand jury on six environmental
criminal counts stemming from a January 2, 1985, tank collapse at Pennwalt's Tacoma, WA, facility.
Charges against all but one of those officials were dropped, with the remaining individual pleading
guilty to one CWA and one CERCLA misdemeanor. In the plea agreement, the company agreed to pay a
fine of $1.1 million, with $600,000 placed in an environmental trust for use by the U.S. Coast Guard to
improve its chemical spill response and monitoring capabilities in the Puget Sound. The remaining
$500,000 was to be paid to the U.S. Treasury.
The case arose out of a January 1985 spill of 75,000 gallons of sodium chlorate, a toxic chemical, into
Puget Sound. The spill resulted from Pennwalt's failure to prevent the spill, despite the apparent ability
of corporate officers (by virtue of their positions of corporate responsibility) to have remedied the known
structural weakness of a holding tank. The CWA counts allege the negligent discharge of a pollutant into
the waters of the United States, and the CERCLA count alleges the failure to report in a timely fashion
the spill to the U.S. Coast Guard's National Response Center.
This is the first time an environmental criminal violation has been linked to a knowing failure of
corporate officials to perform preventative maintenance. Previously, charges have focused on negligence
in the actual performance of an environmental duty. Here, the indictment alleged that the defendants
were negligent in failing to conduct Pennwalt's affairs relating to the storage of hazardous chemicals in a
fashion commensurate with the risk such storage posed.
The court's insistence that a top corporate official, and not a company lawyer, enter the guilty plea
is unique in corporate white collar crime (he had refused two earlier attempts by Pennwalt's lawyers to
enter the plea). By forcing the company's top official to appear in court, the judge felt he would better
deter such future corporate misconduct.
United States versus The City of Phoenix
On October 4, 1989, the Department of Justice, on behalf of EPA, filed a civil complaint against the
City of Phoenix, as part of EPA's pretreatment enforcement initiative. The suit was brought to remedy
violations of the Clean Water Act (CWA) resulting from the city's failure to meet its obligation to ensure
that industrial users (lUs) of municipal treatment plants pretreat their wastewater. The enforcement
initiative, in which the Federal Government and the States have filed civil judicial actions or levied
fines against 61 cities, was announced by EPA Administrator William Reilly and Attorney General
Richard Thornburgh at a press conference on October 4. Together, these cities serve over nine million
citizens in 21 States and regulate over 1700 major industries.
Phoenix owns and operates two publicly-owned treatment works (POTWs). Each plant treats
industrial and domestic sewage from sources in Phoenix. One of the plants also treats industrial and
domestic sources from several nearby municipalities. The two plants together serve a population of
approximately 790,000. The plants also receive wastewater from a total of approximately 104
"significant industrial users," as the term is defined by EPA. In 1984, EPA revised the permits applicable
to each plant in order to require Phoenix to implement the limits on industrial wastewaters that are
discharged to the plants. The permits also establish limits on the concentration of pollutants, such as
metals, that the city can discharge from the plants into the Salt River. The intent of the pretreatment
program, and the permit conditions requiring Phoenix to implement it, is to protect the POTWs and to
prevent the discharge from the POTWs of untreated toxic and conventional industrial wastes.
In April 1989, EPA's Region IX (San Francisco) office issued an order requiring Phoenix to achieve
compliance with its pretreatment obligations. In the suit filed on October 4, the United States alleged
that the City failed to implement fully its industrial pretreatment program by not: (1) developing
needed agreements with all of the municipalities which contribute wastewater to its POTW; (2) fully
determining if new lUs should be regulated under the city's program; (3) fully meeting its inspection,
sampling and monitoring responsibilities; (4) adequately notifying lUs of requirements related to
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FY1989 Enforcement Accomplishments Report
hazardous wastes; (5) publishing in a timely manner a list of significant violators of the city's program;
(6) adequately reporting its progress in implementing the program; and (7) ensuring that its ILJs comply
with pretreatment standards, or by bringing enforcement actions in response to violations. The United
States also alleges that the City discharged wastewater in violation of effluent limits for copper and
cadmium, and in violation of a toxicity water quality standard. This lawsuit is intended to compel
Phoenix to comply fully with the requirements of the CWA and the industrial pretreatment program, and
to collect a civil penalty for the city's past violations.
United States versus Vanderbilt Chemical Corporation
Due to cooperative investigative efforts by EPA Special Agents and Connecticut Department of
Environmental Protection (DEP) investigators, Vanderbilt Chemical Corporation of Norwalk, CT, was
sentenced on May 31, 1989, to pay a fine of $1,000,000 following its March 8, 1989, guilty plea to one felony
count relating to its Bethel facility's hazardous waste disposal practices, and two felony counts for
making false statements to EPA. One-half of the fine, the largest criminal environmental fine collected
in New England to date, is to go to the State of Connecticut Emergency Spill Response Fund. As an
additional consequence of its guilty plea, Vanderbilt entered into a remediation order with Connecticut
DEP, whereby Vanderbilt is responsible for the cleanup of the Bethel Facility, which is estimated to cost
at least $7.5 million.
The case arose when EPA sent an information request letter to Vanderbilt that would allow EPA
and DEP to identify any hazardous waste releases from the Bethel facility that might require
remediation. In its 1985 response , signed by Henry Baer, Vanderbilt's former Vice-President and General
Manager, Vanderbilt lied about the number of units from which hazardous wastes might migrate. (Baer
also was indicted and pled guilty to the same charges as Vanderbilt and was sentenced to a three-year
suspended prison sentence and a $10,000 fine.) Subsequent investigation by DEP, prompted by information
provided by a confidential source, revealed numerous other waste migration sources and resulted in DEP
requesting the assistance of EPA Special Agents. The ensuing State/Federal criminal investigation
revealed hundreds of buried drums containing hazardous waste, and a trench into which between 2,000
and 2,500 gallons of sulfuric acid had been dumped.
This case is significant for both its environmental impact as well as for its symbolic importance as a
model case of state and federal cooperation. Not only did it garner one of the highest criminal
environmental fines ever, but one-half of that sum was directed back to the State and earmarked
expressly for environmental remediation.
United States versus Weyerhaeuser Paper Company
The United States and Weyerhaeuser Paper Company agreed to resolve this Clean Air Act
enforcement action by consent decree. Under the decree, Weyerhaeuser must install $9 million of
pollution equipment at its Rothschild, WI, pulp and paper mill to control its sulfur dioxide emissions and
monitor these emissions continuously. In addition, the company must pay a civil penalty of $20,000.
Weyerhaeuser Paper Company mill, the largest employer in Rothschild, releases large quantities
of sulfur dioxide emissions in short, intermittent spurts. Even though the ambient air contains sulfur
dioxide concentrations sufficient to provoke asthma attacks, these emissions technically do not violate
the State's ambient air quality standard, which limits emissions averaged over three hours. Concerned
over the health of the neighboring residents, EPA collected affidavits confirming that many of
Rothschild's residents, including children attending the Rothschild Elementary School located adjacent
to the mill, experienced health problems which may be related to exposure to sulfur dioxide. Especially
vulnerable are asthmatics and other people with sensitive respiratory systems. This case received
national attention recently as the focus of an article published in The Washington Post, "Legal Pollution
That Makes Students Sick: Sulfur Dioxide Standards Don't Protect the 'Particularly Sensitive'"
(Tuesday, June 6,1989).
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FY1989 Enforcement Accomplishments Report
Aware that Weyerhaeuser did not violate the air standard, EPA turned instead to a State law
provision prohibiting emission of air contaminants tending to injure human health and welfare. As a
result of negotiations and attention, Weyerhaeuser agreed to install a desulfurization scrubber and to
achieve and maintain compliance with a sulfur dioxide emissions limitation expressed in pounds per
hour, which differs from the State's ambient air standard, and to operate a continuous emissions
monitoring system. Also, the company will not discharge emissions during times when the school
children are outdoors.
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FY 1989 Enforcement Accomplishments Report
III. Environmental Enforcement Activity
Federal Judicial and Administrative Enforcement Activity
Judicial Enforcement - Civil
The Environmental Protection Agency (EPA) maintained its aggressive and balanced civil
judicial enforcement program through referral of 364 civil judicial cases to the Department of Justice.
The all-time Agency record for case referrals was set the previous year when 372 cases were referred.
Since FY 1984, when EPA developed and instituted a number of management improvements to ensure
that an effective and vigorous enforcement program was maintained, the Agency has referred 1,909
civil judicial cases to DO], 58% of the total number of civil cases referred since the Agency's creation
(historical data from FY 1972 through FY 1989 are contained in the Appendix to this report). In FY
1989, the Federal Superfund program established a new high-water mark with 153 cases referred to
DOJ.
EPA Civil Referrals to DOJ
FY1977 to FY1989
400
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89
TOXICS/
PESTICIDES
D WATER
HAZARDOUS HI AIR
WASTE
Illustration 1
Monitoring Judicial Consent Decrees
At the end of FY 1989, the Agency reported that nearly 600 judicial consent decrees were in place
and being monitored to ensure compliance with the provisions of the decrees, up substantially from FY
1988 and nearly triple the number of five years ago. Where noncompliance with the terms and
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/•Y 7959 Enforcement Accomplishments Report
conditions of a decree is found, EPA may initiate proceedings with the court to compel the facility to
live up to its agreement and seek penalties for such noncompliance. EPA initiated 16 actions to enforce
consent decrees during FY1989.
Tudicial Enforcement - Criminal
FY 1989 saw continued integration of the criminal enforcement program into the Agency's
regulatory programs, as well as greater recognition in the regulated community of EPA's willingness to
pursue violations utilizing criminal enforcement authorities. As the second illustration indicates,
criminal case referrals, numbers of defendants charged, and numbers of defendants convicted have
increased over time. Since 1982, individuals have received prison sentences for committing
environmental crimes totaling 119 years and over 544 years of probation have been imposed. Imposition
of probation is an extremely effective part of the criminal program because in the event that an
individual commits another crime (not limited to environmental crimes), the provisions of the
probation normally call for the automatic imposition of a prison sentence that was suspended in lieu of
probation.
EPA Criminal Enforcement Program
FY 1982 to FY 1989
FY82
FY83
FY84
FY85
FY86
FY87
FY88
FY89
Referrals to DOJ
Cases successfully CJ Defendants
prosecuted charged
Defendants
convicted
Illustration 2
Administrative Enforcement
EPA established a high-water mark for administrative enforcement in FY 1989 with just over
4,000 actions taken. The previous Agency record was set in FY 1976 when just over 3,600 actions were
taken. The totals for FY 1989 demonstrate that although judicial actions (both civil and criminal) are
crucial to EPA's overall success, and are generally looked to as barometers of Agency enforcement
efforts, other indicators need to be evaluated to assess the EPA's effectiveness in enforcing
environmental laws and regulations. Congress has given EPA expanded authority in recently enacted or
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FY 1989 Enforcement Accomplishments Report
reauthorized statutes to use administrative mechanisms to address violations and compel regulated
facilities to achieve compliance. The FY 1989 figures indicate that EPA programs continue to make
greater use of these effective and less enforcement resource intensive tools. Administrative activity in
the Clean Water Act program was particularly impressive with 1601 actions initiated for NPDES
violations (including 161 final penalty orders resulting in over $2.6 million in penalty assessments) and
130 Wetland actions.
EPA Administrative Actions
FY 1977 to FY 1989
0
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89
B9 TSCA
D RCRA
E3 FIFRA
a CWA/ SDWA
CERCLA
CAA
Illustrations
Contractor Listing
EPA is continuing to aggressively use its authority under the Clean Air Act's Section 306 and the
Clean Water Act's Section 508 to prevent facilities with continuing or recurring violations of Federal
water pollution or air pollution standards from receiving Federal contracts, grants or loans. Facilities
which are convicted of violating air standards under the Clean Air Act Section 113(c)(l), or water
standards under the Clean Water Act Section 309(c), are "automatically" listed (referred to as
Mandatory Listing). Ten Facilities were listed in FY 1989 based on criminal convictions, and one
facility was removed from the list based on compliance with the applicable standards.
Facilities may also be listed at EPA's discretion upon the recommendation of certain EPA
officials, a State Governor, or "a member of the public" (referred to as Discretionary Listing). A
facility may be recommended for listing if there are continuing or recurring violations of either statute
after one or more enforcement actions have been brought against the facility by EPA or a State
enforcement agency. Under Discretionary listing procedures, the facility has the right to an informal
administrative proceeding. One facility was listed in FY 1989 under these procedures. Six new
Discretionary Listing actions were initiated in FY 1989 and two were withdrawn after compliance
agreements were reached.
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Federal Penalty Assessments
Delaying or foregoing capital investment in pollution controls, as well as failure to provide
resources for annual pollution control operating expenditures, can allow undeserved economic benefits to
accrue to a regulated entity. As part of the effort to deter noncompliance, EPA's enforcement programs
have developed penalty policies designed to assess penalties which recoup any economic benefit that a
noncomplying facility has realized, and assess additional penalties commensurate with the gravity of
the violation(s). Since its creation, EPA has imposed $185.9 million in civil penalties ($128.8 million
with civil judicial actions and $57.1 million with administrative actions). In FY 1989, $34.9 million in
civil penalties were assessed, $21.3 million in civil judicial penalties (the second highest total in the
Agency's history) and $13.6 million in administrative penalties (an all-time record). It should be noted
that these totals do not include the $15 million penalty in the Texas Eastern Pipeline consent decree
which was entered by the court after the end of FY 1989 on October 11,1989.
Since the inception of the Agency, $64.8 million in Clean Air Act penalties have been assessed
($45.3 million for stationary source violations and $19.5 million for mobile source violations); $64.3
million in Clean Water Act penalties have been assessed ($60.6 million in civil judicial penalties and
$3.7 million in administrative penalties); over $28.5 million in Toxic Substances Control Act civil
administrative penalties have been assessed; and over $24.0 million in Resource Conservation and
Recovery Act penalties have been assessed ($8.4 million in civil judicial penalties and $15.6 million in
administrative penalties). The Federal Insecticide, Fungicide, and Rodenticide Act and Safe Drinking
Water Act programs are largely delegated to and enforced by the States; however, EPA has assessed
$2.4 million and $1.5 million under these statutes, respectively. The remaining $400,000 in penalties
were assessed under Superfund.
Federal Judicial and Administrative
Penalty Assessments
FY 1977 to FY 1989
40,000,000
35,000,000
30,000,000
25,000,000
20,000,000
15,000,000
10,000,000
5,000,000
0
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89
ADMINISTRATIVE E2 JUDICIAL
Illustration 4
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FY 1989 Enforcement Accomplishments Report
State Tudicial and Administrative Enforcement Activity
Several hundred thousand facilities are subject to environmental regulation, and the job of
ensuring compliance and taking action to correct instances of noncompliance with federal laws is
entrusted both to EPA and to the States through delegated or approved State programs. EPA and the
States must rely on a partnership to get the job done, with State environmental agencies shouldering a
significant share of the nation's environmental enforcement workload. In FY 1989, the States referred
714 civil cases to State Attorneys General and issued 12,126 administrative actions to violating
facilities (of the 6,698 adminstrative actions taken by States under FIFRA, 3,409 were warning letters).
State Judicial Referrals
FY1985 to FY1989
1000
State Administrative Orders
FY1985 to FY1989
2000
4000
6000
8000
10000
12000
14000
RCRA D AIR
WATER 0 FIFRA
Illustrations 5&6
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FY1989 Enforcement Accomplishments Report
mt
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v»>
FY1989 Enforcement Accomplishments Report
The asbestos NESHAP is designed to prevent or mini-
mize emissions of asbestos fibers when buildings con-
taining asbestos are renovated or demolished. To help
insure against any future violations of the asbestos
NESHAP, Hugo Key agreed in the consent decree to
some of the most extensive injunctive relief ever ob-
tained by the government in this type of case. Hugo
Key has agreed to comply not only with the asbestos
NESHAP in all future demolitions or renovations, but
also to many provisions which are not part of the
NESHAP. These include inspection, notification, per-
sonnel, training, outreach, reporting, and recordkeep-
ing requirements as well as penalties from $1,000 to
$25,000 for violations of the decree's provisions.
U.S. v. Lenox: On January 6, 1989, EPA signed a
consent decree resolving a civil action against Lenox for
violation of the NESHAP for arsenic at three glass
melting furnaces at the company's facility. The case
had been filed for failure to submit a source report and
failure to demonstrate compliance on time. The decree
requires Lenox to comply with the arsenic NESHAP
and to pay a civil penalty of $60,000. This is the first
civil action to be resolved involving the arsenic NE-
SHAP.
U.S. v. Louisiana Pacific Corporation: In this Preven-
tion of Significant Deterioration (PSD) case, Louisiana
Pacific agreed to pay a penalty of $120,000 and to install
control equipment costing over $2,000,000 at its Hay-
ward, WI, waferboard plant. Settlement was reached
after EPA prevailed in the liability portion of the con-
current Section 120 proceeding.
U.S. v. LTV Steel Corporation: In this case, EPA
alleged that LTV failed to comply with a limitation on
coke oven door leaks imposed by an April 1979, PSD
permit at its Chicago, IL, facility. To settle this action,
LTV agreed to install new technological doors, door
jambs and jamb sealing systems which would meet the
PSD requirements. In addition, LTV paid a civil pen-
alty of $337,000.
U.S. v. Occidental Chemical Corp.; EPA filed suit
against Occidental Chemical Corporation (formerly
known as Hooker Chemicals and Plastics Corporation)
for violations of the Federal Clean Air Act. The suit,
filed on August 2,1989, alleges violations of the NE-
SHAP for vinyl chloride at Occidental Chemical's
Pottstown, PA, plant (the former Firestone plant). The
action seeks to reduce emissions of vinyl chloride and,
specifically, emissions from the production of polyvi-
nyl chloride, at the plant.
Overexposure to vinyl chloride can cause can-
cer and other health disorders. The vinyl chloride
NESHAP reflects EPA's concern over the potential for
exposure to the general public. The suit cites Occiden-
tal Chemical for inadequate prevention and minimiza-
tion of vinyl chloride emissions from reactors and other
equipment at the Pottstown plant, for not performing
timely inspections, and for not reporting certain of its
activities under the vinyl chloride NESHAP. EPA is
seeking a judgment on liability, civil penalties, and an
injunction requiring compliance with the vinyl chlo-
ride NESHAP regulations through improvements to
the Pottstown plant's vinyl chloride emission control
program.
U.S. v. J. Pizzuto Company. Inc. and Reynolds Metals
Company: This case involves violations of asbestos
demolition and renovation NESHAP regulations pur-
suant to Section 112(c) of the Clean Air Act. On Septem-
ber 21,1989, a consent decree was lodged with the court
for $105,000 in civil penalties and injunctive relief. This
case is significant, not only for the civil penalty, but
also for the principle of liability that it establishes. In
this settlement, Reynolds Metals was held accountable
for violations of a company to which it had contracted
salvage rights in the structures undergoing asbestos
demolition/renovation, before such operations began.
U. S. v. Queen City Barrel Company; The United
States and Queen City Barrel Company, a barrel recla-
mation plant located in a densely populated residential
and industrial area of Cincinnati, OH, agreed to resolve
this Clean Air Act enforcement action by consent de-
cree. Under the decree, Queen City will pay a civil
penalty of $25,000 to be divided equally between the
State of Ohio and the U.S. Treasury. The company also
agreed to install equipment to control its pollution and
to keep records and make extensive reports to EPA.
Queen City Barrel paints and reconditions fifty-five
gallon drum containers at the facility. Concerned that
health problems experienced by residents in the com-
munity may be linked to pollution from the plant, EPA
and the State of Ohio conducted inspections through
which multiple opacity and particulate matter viola-
tions were identified at the incinerator operation. As a
result of intensive negotiations, Queen City agreed to
install control equipment to ensure its compliance
with the opacity and mass standards by February 28,
1990.
In addition to the incinerator problems, Queen
City's paint coating lines are a source of VOCs, a precur-
sor to ozone and smog; therefore, these coating lines
must comply with established limits as well. After
inspecting the site, EPA concluded that Queen City was
not in violation of the VOC standards; nevertheless,
under the terms of the consent decree Queen City must
use pollution control equipment on its painting lines to
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FY1989 Enforcement Accomplishments Report
achieve and maintain compliance beyond what is re-
quired under the Ohio SIP for the life of the facility. In
addition, the company agreed to install extensive con-
trols on VOC emission points that were not strictly in
violation of the law, but were probable contributors to
local health problems.
U.S. v. P.W. Stephens Contractors. Inc.: Timely and
accurate notices of asbestos demolition and renovation
are necessary in order for the regulating agencies to
conduct inspections to ensure that proper asbestos
removal and disposal practices are followed. In this
case, P.W. Stephens had, on more than one hundred
occasions, submitted late notices of asbestos renova-
tion and/or demolition operations. The penalty of
$125,000 is the largest to date for purely notification
violations of the asbestos NESHAP. Under the terms
of the consent decree, P.W. Stephens agreed to adopt
exacting notification procedures beyond those required
under the NESHAP. The decree remains in effect for 21
months following entry.
U.S. v. USX (Fairless Hills): EPA filed suit against the
USX Corporation on January 18, 1989, in the Eastern
District of Pennsylvania alleging violations by USX of
its particulate matter SIP emission limitations. The suit
alleges that USX has been exceeding the allowable
particulate matter emission limits at its sinter plant,
open hearth shop, and blast furnace cast houses at the
Fairless Hills plant which is located in Bucks County,
PA. In addition to penalties of up to $25,000 per day per
violation, EPA is seeking injunctive relief that will
bring USX into compliance with the provisions of the
Pennsylvania SIP.
U.S. v. Volkswagen of America: On August 15,1989,
the U.S. filed a complaint against Volkswagen (VW) of
America alleging violations of VOC emission limita-
tions at its New Stanton, PA, automobile assembly and
surface coating plant. The violations cited in the com-
plaint involve unauthorized increases in VOC emis-
sions due to higher production rates and addition of
several new VOC emitting operations to the plant.
Under the Clean Air Act and the Pennsylvania SIP,
increases in VOC emissions must be accompanied by
offsets or reductions in emissions at other sources.
Although VW secured some offsets, it failed to submit
them to EPA. A consent decree was entered on October
3,1989, requiring VW to pay a civil penalty of $600,000
and not reopen its New Stanton plant (the plant is
currently shutdown) without first coming into compli-
ance with all applicable Federal and State require-
ments.
Clean Air Act Enforcement
Mobile Source Program
U.S. v. DuPont Lead Phasedown Case and Other
Fhasedown Cases: A complaint was filed against
DuPont on December 28,1988, seeking approximately
$8,000,000 in civil penalties for nine calendar quarters
of violation of the lead phasedown regulations. This
case is currently in the discovery phase of litigation.
Several other major lead phasedown cases are also in
litigation.
Enron Oil Trading and Transportation Co/Enron Gas
Processing Lead Phasedown: This lead phasedown
case was settled for $1,811,743 after a Notice of Viola-
tions letter was issued for lead phasedown violations.
Enron is an international corporation with several
domestic refineries. An innovative settlement was
reached whereby Enron agreed to pay $747,859 to the
U.S. Treasury, and $278,358 to help finance various
"brown cloud" air pollution studies. This settlement
was accomplished with the cooperation and support of
the State of Colorado.
Ford Motor Company: During the past year, a Notice
of Violation letter was issued to Ford Motor Company
alleging that Ford denied warranty coverage required
by the Clean Air Act. The emissions warranty covers
defects in emissions related parts or components in an
automobile for five years or 50,000 miles, whichever
comes first. The Agency initiated this action as it
became aware that Ford denied emissions warranty
coverage in numerous instances where the Act requires
it. With the advent of Inspection/Maintenance pro-
grams around the country and increased vehicle owner
awareness of the warranties, numerous complaints
were received about Ford by EPA. Settlement was
reached August 10,1989. Ford agreed to pay a $92,000
penalty, to reimburse aggrieved complainants, and to
change its policy to cover carburetors, fuel injectors,
intake manifolds and other emissions-related devices.
Additional investigations are ongoing against other
manufacturers.
U.S. v. Pilot/Sonic Fuels Case: An action was filed
against Pilot and Sonic in the U.S. District Court, East-
ern District of New York, for violations of 40 C.F.R. Part
80 relating to sale or distribution of unleaded gasoline
containing excess lead. The court granted the govern-
ment's motion for summary judgment and assessed a
civil penalty of $610,000. The defendants had argued
that because all their business transactions were con-
ducted by telephone and they never handled the gaso-
line, they should not be held liable for the violations.
This decision is significant both because it presents a
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FY1989 Enforcement Accomplishments Report
favorable ruling on the scope of distributor liability
under the unleaded gasoline regulations and because it
bears on the scope of distributor liability under the
volatility regulations.
U.S. v. Shaffer Muffler Shops, Inc.: An action was
filed in federal district court in Corpus Christi, TX,
against Shaffer Muffler Shop for removing catalytic
converters from over twenty vehicles. The appropriate
penalty amount was the main issue at trial. The judge,
after taking into consideration the defendant's financial
difficulties and other factors, assessed a penalty of
$1,750 per vehicle, for a total judgment of $36,750. This
is the highest civil penalty per violation assessed by a
court to date for violation of the anti-tamperingprohi-
bition of section 203 of the Clean Air Act.
Clean Water Act (CWA) Enforcement
U.S. v. Ketchikan Pulp Company: Ketchikan Pulp
Company (KPC) owns and operates a pulp mill near
Ketchikan, AK. The complaint filed in this matter
alleges that KPC violated the Clean Water Act (CWA)
by discharging pollutants from its pulp mill into Ward
Cove, AK, in violation of both the terms of its National
Pollution Discharge Elimination System (NPDES) per-
mit, which incorporates national guidelines for the
pulp, paper, and paperboard industry, and the terms of
a previously issued administrative order against the
company. Ward Cove has a history of significant water
quality problems due largely to discharges of pollut-
ants from the mill. The consent decree provides for the
payment of an up-front penalty of $175,000 for all of
KPC's past violations of its NPDES permit occurring
through April 1,1989. It is also the first consent decree
that allows for the collection of additional up-front
penalties for violations occurring after the negotiation
of a settlement amount, in this case for additional
violations occurring between April l,1989,and thedate
of lodging of the decree. The decree also contains
stipulated penalties for failure to comply with the efflu-
ent limits of the permit.
U.S. v. Koch Refining Company; The consent decree,
filed June 20,1989, in the U.S. District for the District of
Minnesota, resolved EPA's lawsuit citing Koch for
wastewater discharge violations of the CWA. The
decree orders Koch to upgrade and maintain its waste
water treatment plant, identify and limit its toxic dis-
charges, and submit to EPA and the Minnesota Pollu-
tion Control Agency a laboratory quality control and
quality assurance plan. The decree also orders Koch to
pay a $2.2 million fine, which is one of the largest fine
ever levied against a single discharger for violations at
a single facility. The U.S. Treasury will receive $1.54
million of the fine; the Minnesota State Treasury will
receive $460,000. In addition Koch paid $200,000 to
fund three environmental projects in the State of Min-
nesota. According to the lawsuit, Koch repeatedly
exceeded the limits of its discharge permit for ammo-
nia, phenols, chromium, total suspended solids, and
biochemical oxygen demand. If the decree is violated,
Koch will be subject to stipulated penalties ranging
from $500 to $400,000.
U.S. v. Koppers: Koppers operated a coke oven battery
in Toledo, OH, in violation of the categorical pretreat-
ment standards. In a consent decree entered on Octo-
ber 12,1988, Koppers agreed to pay the United States a
penalty of $950,000. This is the largest penalty ever
paid by an industrial source for violations ofpretreat-
ment standards at a single plant.
U.S.v.Sauget; On March 15,1989, EPA filed an interim
consent order in the U.S. District Court for the Southern
District of Illinois, requiring the American Bottoms
Regional Treatment Facility located in Sauget, IL, to
add activated carbon to its secondary-treatment system
to reduce the toxicity of its effluent. The American
Bottoms plant receives more than half of its wastewater
flow from industries in the area which include Mon-
santo, Cerro Copper, Ethyl Petroleum Additives, Big
River Zinc, Clayton Chemical, Trade Waste Incinera-
tion, Pfizer Pigments, and Midwest Rubber Reclaim-
ing. Monitoring reports indicate a significant decrease
in the toxicity of the wastewater being discharged from
the facility to the Mississippi River since the consent
order was filed.
Pretreatment Enforcement Initiative
U.S. v. City of Beaumont: This suit alleges violations
based upon the City of Beaumont, TX, complete failure
to implement the requirements of the approved pre-
treatment program for industrial users which discharge
into the City's Publicly-Owned Treatment Works
(POTW). The POTW treats and discharges 30 million
gallons of wastewater per day into a drainage ditch
which empties into the Hillebrandt and Taylor Bayous.
The POTW serves a connected population of about
118,000 people and approximately 268 industrial users.
Since 1983, the City of Beaumont has been
committed to an industrial pretreatment program which
required the city to take certain actions to control the
flow of industrial wastes to the Beaumont POTW. The
intent of the program is to protect the POTW and
prevent the discharge from the POTW of untreated
toxic and conventional industrial wastes.
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FY1989 Enforcement Accomplishments Report
U.S. v. City of El Paso: This suit alleges that the City of
El Paso, TX, failed to implement its approved pretreat-
ment program at any of the three wastewater treatment
plants owned and operated by the City. These plants
serve approximately 480,000 people and at least 30
significant industrial users,dischargingapproximately
50 million gallons of wastewater daily into the Rio
Grande River Basin. The suit also alleges that the City
of El Paso has failed to identify all significant industrial
users, to issue permits, to inspect and monitor same, to
establish local limits to prevent interference and pass-
through, to require compliance with categorical stan-
dards, to enforce standards and requirements against
violators effectively, to maintain adequate personnel
and equipment, and to take measures to eliminate plant
overloads by industrial users. The suit also claims that
the City has violated the effluent limits in its permits
and has failed to comply with two of the four adminis-
trative orders issued by EPA.
U.S. v. City of Nacogdoches: The United States and
City of Nacogdoches, TX, agreed to the simultaneous
filing of a Complaint and Consent Decree against the
City based upon violations of the CW A with respect to
Nacogdoches' failure to implement the requirements of
its approved pretreatment program for industrial dis-
charges of 6.3 million gallons per day of wastewater
into the POTW. The POTW serves a connected popu-
lation of approximately 34,000 persons with about 14%
of the flow coming from industrial users. The City of
Nacogdoches has been committed to an industrial
pretreatment program since 1983, which required the
City to take certain actions to control the flow of indus-
trial wastes to the Nacogdoches POTW.
U.S. v. City of San Antonio: This suit alleges violations
of the Act's pretreatment requirements at the City's
three wastewater treatment plants which serve ap-
proximately 785,000 people, and more than 100 signifi-
cant industrial users, discharging about 154 million
gallons of wastewater per day into three rivers in the
San Antonio River Basin. The suit alleges violations
since the pretreatment program was approved in Feb-
ruary 1985, and includes allegations of failure to issue
permits to all industrial users, to include enforceable
compliance schedules in industrial-users permits, to
inspect and monitor significant industrial users, to
establish technically-based local limits to control in-
dustrial discharges of pollutants to its plants, to enforce
standards and requirements against violators, and to
comply with an EPA administrative order.
The United States and the City of San Antonio
have entered into a consent decree whereby the City
has committed to develop an enforceable response
protocol and to enforce against industrial violators; to
develop technically-based local limits; to include the
limits in permits and to enforce them; and to include
enforceable compliance schedules in the industrial
discharge permit of each non-complying industrial
user. Additionally, the City of San Antonio has agreed
to pay a civil penalty in the amount of $225,000 for past
violations. The consent decree provides for continuing
court supervision of the City's compliance activities.
Safe Drinking Water Act (SOWA)
Enforcement
U.S. v. Centaur Petroleum: The consent decree, en-
tered April 4, 1989, in the U.S. District Court for the
Southern District of Indiana, resolved a lawsuit filed
against Centaur Petroleum, of Plainville, IN, for under-
ground injection control (UIC) violations at nine of its
Indiana injection wells, and orders Centaur to pay a
$55,000 fine. The decree also orders Centaur to main-
tain compliance with the operating permits for the nine
wells. According to the lawsuit, Centaur had violated
UIC regulations by continuing to operate the wells after
losing EPA authorization. The company also failed to
demonstrate, in a timely manner, the mechanical integ-
rity and the absence of fluid migration in the wells. In
addition, Centaur Petroleum continued to inject after
the deadline for the required demonstrationhad passed.
U.S. v. Midway Heights County Water District; On
May 25,1989, a consent decree was entered by the U.S.
District Court for the Eastern District of California
resolving EPA's enforcement action against Midway
Heights County Water District. EPA's action was
brought under the Safe Drinking Water Act (SDWA) to
compel the District to comply with National Primary
Drinking Water Regulations. The District, which sup-
plied raw irrigation ditch water to itscustomers, claimed
that it was merely an irrigation district. In October
1988, the district court ruled on the government's motion
for summary judgment and held, in this case of first
impression, that the District was a public water system
subject to the SDWA because the water that it was
supplying was actually being used by its customers for
"human consumption."
The consent decree required the District to in-
stall immediately an interim chlorination system pend-
ing construction of a permanent drinking water system
which would ensure compliance with the SDWA. The
decree also imposed a $37,500 penalty on the District,
which serves approximately 630 customers. The Dis-
trict is required by the decree to complete its newdrink-
ing water system and come into compliance with the
Act by August 1,1990.
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U.S. v. Southern Wood Piedmont; A Section 1431
SDWA Administrative Order was issued against South-
ern Wood Piedmont, a RCRA/CERCL A site. Contami-
nants from the site had migrated off-site and caused
contamination in several drinking water wells. The
company was required to provide alternate water
supplies to the effected residents. The provisions of
Section 1431 of the Act provide a means to act quickly
to alleviate an immediate problem.
Wetlands Enforcement
U.S. v. Auburn Foundry: The U.S. obtained a civil
penalty of $40,000 and the creation of 40 acres of wet-
land from Auburn Foundry, located in Auburn, IN, as
a result of a decree entered in May 1989. Auburn had
filled eight acres of wetland without obtaining a Section
404 permit from the Corps of Engineers.
U.S. v. Construction Industries. Inc. et al: This case
involved the unpermitted filling of wetlands in Salem,
NH. The defendants had filled approximately 6.7 acres
of wetlands between 1976 and 1985 in the course of
preparing five lots for commercial development. They
had failed to obtain the required federal permit from
the Army Corps of Engineers. EPA negotiated a con-
sent decree with the defendants which required pay-
ment of a $50,000 civil penalty and wetland restora tion
and creation. The cost of the remediation plan is
estimated to be between $400,000 and $500,000. The
complaint and consent decree were filed simultane-
ously in the U.S. District Court for New Hampshire on
September 1,1989.
In the Matter of Herd Co. and Foxley Cattle Co.: In
March, EPA issued an amended administrative order
for violations of the Clean Water Act Section 404. The
respondents, a large cattle feeding operation supple-
mented by a farming operation used to grow feed and
provide land for application of the animal wastes,
engaged in extensive unauthorized drainingand filling
activities in the Sandhills area of Nebraska, impacting
1,298 acres of important wetlands. The order, issued on
consent, represents the culmination of lengthy negotia-
tions with the respondents, with assistance provided
by the Omaha District Corps of Engineers, the U.S. Fish
and Wildlife Service, and the Nebraska Game and
Parks Commission. The order requires various actions
of respondents over a period of 10 years, including the
development and implementation of plans to address
zuetland losses and impacts, and to evaluate the
impacts of manure application and chemigation on
water quality.
The Hoffman Grojipi An Administrative Law Judge
(ALJ) issued a ruling resolving the Agency's first
administrative complaint against a developer for the
unauthorized filling of wetlands, which are protected
under the Federal Clean Water Act. Hoffman, of
Hoffman Estates, Hoffman, IL, has been ordered to pay
a $50,000 fine, in addition to the $50,000 it has already
spent on mitigation and restoration efforts at the site. A
complaint, issued January 12,1988, cited Hoffman for
filling 6.2 acres of wetlands in a Hoffman Estates
subdivision without the required permits. Hoffman
appealed the complaint through EPA's administrative
process. After a 15-day hearing, the ALJ determined
that 5 acres of wetlands had been improperly filled. In
addition to paying the fine, the Hoffman Group will be
ordered to construct new wetlands to offset the loss of
the filled areas.
Comprehensive Environmental Response.
Compensation, and Liability Act (CERCLA)
& Resource Conservation and Recovery Act
(RCRA) Enforcement
U.S. v. Aceto Agricultural Chemicals Corp.. et al.
(RCRA/CERCLA): This is a civil action pursuant to
Sections 107 of CERCLA and 7003 of RCRA to recover
costs incurred in connection with response actions
taken at the Aidex Corporation Site, Mills County, IA.
Named as defendants in the case are Aceto Agricultural
Chemicals Corp., the Dow Chemical Company, Far-
nam Companies, Inc., Mobay Corporation, Ciba Geigy
Corporation, Mobil Oil Corporation, Platte Chemical
Corporation and Velsicol Chemical Corporation. Each
of the defendants contracted or otherwise arranged
with Aidex for formulation and packaging of technical
grade pesticides. The complaint alleges that each of the
defendants is liable for response costs incurred at Aidex
under Section 7003 of RCRA because, by virtue of their
relationships with Aidex, "contributed to" the han-
dling, storage, treatment, or disposal of solid or hazard-
ous wastes. Six of the eight defendants are alleged to be
liable for response costs under Section 107 of CERCLA
because by virtue of their relationships with Aidex,
they "arranged for " the disposal of hazardous sub-
stances.
On February 26,1988, the district court granted
the defendants' motion to dismiss under RCRA, hold-
ing that the absence of an allegation that defendants
had authority to control how Aidex handled or dis-
posed of the wastes precluded recovery under Section
7003. The court denied the motion under CERCLA,
however, holding that principles of common law in
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FY1989 Enforcement Accomplishments Report
conjunction with the liberal construction required under
CERCLA could support liability under Section 107. All
parties were granted leave to file an interlocutory appeal.
On April 25,1989, the Eight Circuit Court of Appeals
affirmed the district court's decision in part, reversed in
part, and remanded the case for further proceedings
holding that the allegations of the complaint are suffi-
cient under both RCRA and CERCLA. This is a very
significant case for the Superfund Program., and there
have been a number of articles written in popular legal
references on this decision. Discovery is proceeding
after receipt of the Eighth Circuit decision.
State of Alabama, et al. v. EPA, et al. (CERCLA): On
April 18,1989, the United States Court of Appeals for
the Eleventh Circuit reversed a district court's prelimi-
nary injunction halting EPA's participation in the
cleanup of the Geneva Industries site in Texas. This is
a significant decision which dismisses a challenge to a
remedial action plan selected under Section 104 of
CERCLA. The State of Alabama, its governor, attorney
general, and head of the Department of Environmental
Management sought to enjoin the shipment of PCB-
contaminated soils from an NPL site in Texas to Chemi-
cal Waste Management's disposal facility in Emelle,
AL. They challenged EPA's failure to provide them
with notice and a hearing before selecting the remedy
for the Geneva site. The district court enjoined the
cleanup and directed EPA to reopen its Record of
Decision for the Texas site to afford the citizens of
Alabama an opportunity to comment on the remedial
action plan.
The Eleventh Circuit reversed the grant of pre-
liminary injunction, reversed the grant of summary
judgment, dissolved the permanent injunction, and
dismissed the case for lack of subject matter jurisdiction
holding that the plaintiffs lack standing to challenge
under the Fifth Amendment EPA's failure to provide
them with notice and an opportunity to participate in
developing the appropriate remedial action for the
Geneva site in Texas. Because the plaintiffs challenged
a remedial action plan selected under Section 104 of
CERCLA, the court also held that Section 113(h) of
CERCLA removes this challenge from Federal jurisdic-
tion under Section 113(b). The court concluded that
Congress intended to remove challenges to remedial
action plans from the jurisdiction of the Federal courts
until the remedial action has been taken. Thus, the
court also found no basis for the exercise of Federal
jurisdiction over claims brought under the Administra-
tive Procedures Act.
U.S. v. Allied Signal Inc. (RCRA): On September 29,
1989, a consent decree between EPA, the State of Mary
land and Allied-Signal Inc., under Sections 3008(h),
7002, and 7003 of RCRA was entered in the U.S. District
Court for Maryland. This is the first settlement in the
nation for complete remediation of a site under RCRA
corrective action authorities. The project is expected to
cost $70 million.
The 20-acre site involved is a former chemical
manufacturing facility located on Baltimore's Inner
Harbor which is heavily contaminated with chromium,
primarily in the hexavalent (carcinogenic) form. The
site discharges more than 62 pounds a day into the
Harbor, the Northwest Branch of the Patapsco River
and the Patuxent Aquifer. The decree calls for the
dismantling of the buildings, construction of a deep
hydraulic barrier and a cap, maintenance of an inward
flow of groundwater into the site, and long term moni-
toring of corrective measures to meet risk-based per-
formance standards. The decree also contains provi-
sions for remedy failure and perpetual liability on the
part of Allied Signal, and requires the approval of EPA
and the State of Maryland before any redevelopmen t of
the site can occur.
In the Matter of All Regions Chemical Labs
(CERCLA/EPCRA): On May 3,1989, an Administra-
tive Law Judge (ALJ) granted EPA's motion for partial
accelerated decision in the first CERCLA 103 andEPCRA
304 administrative action for civil penalties brought
by the Agency, and held defendants liable for violations
of these statutory provisions. The complaint alleged
that the Respondents failed to notify the National Re-
sponse Center of a release of 180,000 pounds of chlorine
which required the evacuation of 25,000 - 30,000 resi-
dents of Springfield, MA. Respondent also failed to
submit the follow-up notice required under EPCRA.
The proposed penalty of $122,000 will be considered at
the hearing scheduled for May 30.
In the Matter of Amoco Oil Company, Sugar Creek
Refinery (RCRA): From approximately 1902 until
1982, Amoco operated a petroleum refinery at the
Sugar Creek location, Kansas City, MO. Crude oil
processing and the other manufacturing operations
ceased at this facility in 1982. Since 1982, Amoco has
operated the facility as a gasoline terminal facility. A
number of pits, ponds and lagoons for waste manage-
ment purposes have also been in operation at the refin-
ery. Operations at the refinery resulted in contamina-
tion of soils and groundwater with a wide variety of
hazardous constituents, as well as a measurable layer
of hydrocarbons floating on top of the groundwater
under a large portion of the facility. In 1982, Amoco
installed wells to recover the liquid hydrocarbons
beneath the facility, with additional recovery wells
having been installed since 1982. In June 1989, EPA's
Region VII office and Amoco entered into a Final
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F71989 Enforcement Accomplishments Report
Administrative Order on Consent pursuant to Section
3008(h) of RCRA. The Consent Order requires Amoco
to continue as interim measures the ground water
extraction and recovery system, and to conduct a RCRA
Facilities Investigation (RFI) and Corrective Measures
Study (CMS). A final corrective measure will be se-
lected by EPA after completion of the RFI and CMS.
U.S. v. BASF (CERCLA): On May 9,1988, the United
States lodged a consent decree with the United States
District Court for the Eastern District of Michigan
concerning the Liquid Disposal, Inc., (LDI) Site. The
consent decree requires those persons named as set-
tling defendants (41 parties) to implement the remedial
action selected for the LDI Site, to pay all EPA oversight
costs, and to reimburse the United States for a portion
of its past costs associated with the LDI Site. The
consent decree also includes a settlement with a group
of 494 djg minimis defendants. Under the terms of the
consent decree, the United States will recover approxi-
mately $1.94 million of its past costs. The agreement
requires the settling defendants to remove ground wa-
ter contamination from the LDI site by extraction and
treatment of groundwater on-site and off-site for 16
years or 27 pore volumes, whichever is later. A slurry
wall will also be constructed. The settling defendants
will also treat the soil/waste using solidification tech-
nology. The estimated cost of the remedial measures is
$22.4 million. The agreement also provides for the
establishment of a $1.5 million annuity for use by EPA
to undertake any necessary additional remediation
after completion of the 16 years or 27 pore volumes of
groundwater remediation.
U.S. v. B.F. Goodrich (CERCLA): On October 24,1988,
the United States District Court in Connecticut issued
an order under CERCLA Section 106(a) requiring the
owners of the Beacon Heights Landfill Site to provide
site access to thirty-two generators who have agreed to
perform the site clean-up. The generators agreed to
perform the cleanup under a consent decree entered
September 15,1987. The court found that the presence
of benzene, toluene, and bis (2-chloroethyl) either in
soils and groundwater constituted an imminent and
substantial endangerment to public health or welfare
or the environment. The order requires the owners to
provide "full and unrestricted access" to the site and not
to "interfere in any way with the conduct of such
response activities." EPA sought the order under Sec-
tion 106(a) because EPA could not designate the gen-
erators as its representatives, since the generators re-
fused to indemnify the United States for their actions as
required by the access guidance. This is the first time
nationally that a court has issued an order for access
under Section 106(a).
Bunker Hill Site (CERCLA/CAA): During FY 1989,
there were several unique developments at this site
near Kellogg, ID. Under a 1989 consent decree, Gulf
Resources and Chemical Corporation, the former owner
and operator of the smelting operations at the site, and
Pintlar Corporation of Idaho, a subsidiary of Gulf, are
required to pay a settlement of $1.42 million for re-
sponse costs associated with a "Fast Track" removal
action conducted in 1986 at the site. The settlement
includes $900,000 to EPA for direct costs, as well as
reimbursement for DOJ's direct enforcement and labor
costs. EPA's enforcement costs and the indirect costs of
EPA and DOJ were deferred but the right to seek
compensation in the future was retained. In another
action involving Gulf Resources, EPA and DOJ reached
an agreement with the company regarding its pro-
posed reorganization as a subsidiary of Danbury Lim-
ited, a Bermuda Corporation. Such a reorganization
would involve the transfer of Gulfs assets out of the
United States, possibly making future cost recovery
impossible. Under the agreement, Gulf agreed not to
transfer assets to the new Bermuda affiliate, by way of
dividends, loans, or other accommodations. This agree-
ment will give EPA the ability to seek additional relief
should it need to do so, and is the first agreement of this
type in the country.
The most recent development at the Bunker Hill
Site occurred on September 5, 1989, when an EPA
inspection team was denied access to the smelting
facility. The inspections were to determine compliance
with the Clean Air Air asbestos NESHAP regulations at
the now defunct zinc, lead, and phosphoric acid smelt-
ing complex. Awarrantwasexecutedthenextday. The
following day, Minerals Corporation of Idaho, Inc., the
current owner of the smelting facility, filed a motion to
quash the warrant in District Court. The Court issued
a temporary restraining order that prohibited EPA
inspectors from doing a records review, but allowed
EPA to continue with the physical inspection.
California Gulch (CERCLA): A unilateral order pur-
suant to Section 106 of CERCLA was issued to four
defendants (Asarco, Resurrection, Newmont, and Res-
Asarco Joint Venture) within 24 hours of the negotia-
tions failing on agreement to a consent decree for
remedial design/remedial action. The defendants are
currently in compliance with the unilateral order,
implementing a $24 million remedy on the Yak Tunnel
portion of the site. The order proved to be an effective
enforcement tool to get the PRPs to implement a costly
remedy, thereby saving significant Superfund resources.
CERCLA Section 120 Federal Facility Interagency
Agreements: In FY 1989, EPA Region IX negotiated
eight CERCLA Section 120 Interagency Agreements
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FY1989 Enforcement Accomplishments Report
(lAGs) with Federal facilities. These included: the first
Section 120 Agreement with the Department of Energy
(Lawrence Livermore National Laboratory, November
1988); the first Section 120 Agreement between EPA, a
State, and the Navy (Mof fett Naval Air Station, August
1989). Region IX entered into two Section 120 Agree-
ments with the Army (Sacramento Army Ammunition
Depot, December 1988, and Sharpe Army Depot, March
1989), which were the first Army lAGs to incorporate
the model provisions negotiated between EPA and the
Department of Defense.
In May 1989, EPA Region IX, the California
Department of Health Services, and the U.S. Air Force
reached final agreement on generic language that to
date has been incorporated into CERCLA Section 120
Federal Facility Interagency Agreements (lAGs) for
four Air Force Bases on the National Priorities List:
Norton AFB (signed June 29,1989), and Castle, McClel-
lan, and Mather AFBs (signed July 21, 1989). The
generic Agreement has long-term significance because
the parties have agreed to use it for future lAGsfor all
Air Force NPLsites in California. Key provisions in the
generic Agreement include, among others, EPA and
State involvement in removal actions and require-
ments in the event of base closure.
In the Matter of Champion International Corp. (UST);
On September 15, 1989 , EPA entered into a consent
agreement with Champion International. In the Agree-
ment, Champion agreed to do a site assessment and
submit a Corrective Action Plan to clean up groundwa-
ter contaminated with hazardous substances, not pe-
troleum, at its Woodrow Street facility in Atlanta, G A.
In the Matter of Chevron U.S.A.. Inc. (UST): On
December 16,1988, EPA entered into a Consent Order
with Chevron U.S.A., Inc., under Section 9003(h) of
RCRA, for the cleanup of groundwater and soil con-
tamination resulting from petroleum leakage from
underground storage tanks located near a residential
site in Pineville, WV. This was the first consent order
for the performance of corrective action under the UST
program where there was a threat to human health due
to thepresence of hydrocarbon vapors at near explosive
levels in a residence. The consent order requires reme-
dial work over an extended period of time.
U.S. v. Clow Water Systems (RCRA): On August 18,
1989, a consent decree was entered in this case concern-
ing an iron pipe and fi ttings manufacturer and division
of Me Wayne, Inc. Clow discharged between 500,000
and one million gallons of contaminated wastewater
per day into a surface impoundment at its Coshocton,
OH, facility. The consent decree requires Clow to close
the surface impoundment according to a plan reviewed,
approved and overseen by EPA. The wastewater is
being treated in a new on-site plant designed specifi-
cally for this purpose. Clow must also close drum
storage areas and undertake investigation and correc-
tive action for releases of hazardous constituents. The
decree also imposes a $725,000 civil penalty, the largest
RCRA civil penalty ever for an out-of-court settlement
under the RCRA Loss of Interim Status (LOIS) provi-
sions. Previously, in December 1988, the court had
issued an Order granting most of the relief requested in
the United States' Motion for Partial Summary
Judgment. Most significantly from a national perspec-
tive, the court ruled that RCRA 3008(h) requires correc-
tive action for releases of hazardous constituents as
well as hazardous waste.
U.S. v. Crown Roll Leaf (CERCLA/RCRA): On April
28,1989, the U.S. District Court for the District of New
Jersey issued a Letter-Opinion awarding penalties in
the amount of $142,000 against Crown Roll Leaf, Inc.,
for violations of a CERCLA Section 104(e) and RCRA
Section 3007 information request. The court previously
ruled that EPA's information request was reasonable,
that the information requested by EPA was consistent
with the legislative purposes of CERCLA and RCRA,
and that Crown violated CERCLA Section 104(e) and
RCRA Section 3007 by failing to respond to EPA's
information request. The court considered several
factors in its determination of an appropriate penalty.
First, the court considered the purpose of the civil
penalty - deterrence. The court then evaluated the five
factors to be considered by a court in assessing civil
penalties: the good or bad faith of the defendant; the
injury to the public; the defendant's ability to pay; the
desire to eliminate the benefits derived by a violation;
and the necessity of supporting the authority of the
enforcing agency. The court found that each of the five
factors supported a significant penalty against Crown.
The court awarded the requested amount of $100 per
day for each day of violation of RCRA, and $100 per day
for each violation of CERCLA (630 of non-compliance
from the effective date of SARA), for a total civil penalty
of $142,000 plus costs. The award was upheld by the
U.S. Court of Appeals for the Third Circuit.
U.S. v. Davis Liquid (CERCLA): In July 1989, EPA
obtained a Federal DistrictCourt Order for access to the
Davis Liquid Site in Smithfield, RI, for remedial design
activities. In light of the threatening behavior by the site
owner in the past, the court order includes a very broad
non-interference provision which prohibits the site
owner from threats, harassment, or intimidation of
EPA representatives.
U.S. v. Deere and Company (CERCLA); In September
1989, pursuant to CERCLA Sections 104,106,107 and
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FY1989 Enforcement Accomplishments Report
122, a consent decree was signed by the parties and
referred to the Department of Justice for lodging. The
site is the location of an operating manufacturing plant
and had previously been proposed for the National
Priorities list (NPL). Subsequently, EPA provided notice
that the site would be removed from the proposed NPL
because it was subject to RCRA corrective action au-
thority. The CERCLA consent decree requires Deere to
conduct specific remedial action to clean up the site and
to pay oversight and enforcement costs.
In the Matter of United States Department of the
Army, Lake City Army Ammunition Plant (CERCLA):
In June 1989, the State of Missouri, the Department of
the Army, and EPA completed negotiation of a CER-
CLA Section 120 Federal Facility Agreement for the
Lake City Army Ammunition Plant. In addition to the
RCRA compliance issues addressed in a December
1988, Federal Facility Compliance Agreement (FFCA),
Lake City Army Ammunition Plant was listed on the
National Priorities List (NPL). The Agreement, which
is based upon the EPA/Department of Defense model
language, requires that the Army conduct a remedial
investigation and feasibility study (RI/FS), potentially
including operable unit RI/FSs, and implementation of
the remedial action selected as a result of the RI/FS.
The Agreement specifically provides for the December
1988, RCRA Federal Facilities Compliance Agreement
to remain in effect. It further provides for all ground-
water remediation to be conducted as a CERCLA
remedial action, rather than a RCRA corrective action,
and makes provision for closure of certain hazardous
waste management units, not specifically addressed in
the FFCA, as part of the remedial action. The Agree-
ment has been signed by all parties and EPA is prepar-
ing the Notice for public review and comment on the
Agreement before it becomes final.
In the Matter of United States Department of Energy
(DOE). Kansas City, MO Plant (RCRA): This is the
first RCRA Section 3008(h) order issued by EPA's Region
VII office to a Federal facility. The order requires
remedial activities to restore areas contaminated by
PCBs and other hazardous wastes which were stored in
a floodplain. Other actions stipulated by the order
include groundwater characterization, spill contain-
ment, VOC emission controls, radionuclide modeling,
and control of discharges to the sanitary and storm
sewer systems.
Diamond Alkali Dioxin Site (CERCLA): In August
1989, a consent decree was lodged with the court which
provides that two defendant companies, Occidental
Chemical Corporation and Chemical Land Holding,
will fund and implement the interim remedial actions
required at this dioxin site located in Newark, NJ. The
remedy, which includes a slurry wall and capping, has
an estimated cost of $20 million. The decree also
requires the defendants to assess and develop other
technologies which utilize more permanent solutions
for the contaminants remaining at the site. The decree
is noteworthy because it also contains a "technology
reopener" which mandates (subject to dispute resolu-
tion) that the defendants finance and implement future
response actions which may be triggered by an EPA
determination that a new technology promises a more
permanent solution for remaining contaminants.
U.S. v. Dow Corning (RCRA): On April 28,1989, EPA
filed an Administrative Complaint, Finding of Viola-
tion, and Compliance Order against Dow Corning,
which is among the first filed pursuant to RCRA Sec-
tion 3017, the regulations governing the export of haz-
ardous substances to foreign countries. 40 CFR 262.52,
as adopted by reference in Michigan's Administrative
Code, requires that a person shipping hazardous sub-
stances to a foreign country have that country's permis-
sion on a form which must accompany the hazardous
substances shipment, along with the RCRA manifest.
Dow shipped hazardous substances in early January,
1989, from its Midland, MI, plant into Canada without
the proper Acknowledgement of Consent form from
the Canadian government. EPA recovered $8,000 as a
result of the June 21,1989, Compliance Agreement and
Final Order. This action demonstrates EPA's strong
commitment to foster international environmental
cooperation.
U.S. v. Envirite Corporation (RCRA): In May 1989, a
civil judicial enforcement action was filed against the
Envirite Corporation of Thomaston, CT, for the dis-
posal of hazardous waste without a permit in violation
of RCRA. Envirite Corporation is a commercial haz-
ardous waste treatment, storage, and disposal facility
which handles approximately 35% of the hazardous
wastes generated in New England. On November, 14,
1986, the company obtained an exclusion from hazard-
ous waste listing for the wastes treated and disposed by
the facility conditioned upon those wastes meeting
certain specified concentration levels. Envirite's dis-
posal practices consisted of on-sitelandfillingand ship-
ping off-site to commercial disposal facilities in several
States and Canada. The case was brought after EPA
determined that certain of Envirite's wastes exceeded
the exclusion levels. Within weeks of filing, the com-
pany signed a stipulation which was entered as an
order of the Court requiring that all waste generated
must be managed as hazardous waste unless a labora-
tory independent of Envirite verified that the waste
was not hazardous.
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FY1989 Enforcement Accomplishments Report
Federal Aviation Administration, Lake Minchumina,
AK: On November 8, 1988, EPA issued a Consent
Order and Compliance Agreement under RCRA to the
Federal Aviation Administration (FAA). The docu-
ment resolves regulatory violations noted at an Alaska
air strip and initiates corrective action for contamina-
tion discovered at the site, which is near Denali Na-
tional Park in Alaska. During State inspections of the
site, it was found that hazardous waste pesticides were
being illegally stored there. The consent order issued
pursuant to 3008(h) of RCRA requires that the FAA
conduct certain "interim measures" to begin cleanup
immediately, and that a RCRA Facility Investigation
(RFI) and Corrective Measures Study (CMS) be com-
pleted. Final cleanup will be conducted under a second
order. The violations include improper storage of
hazardous waste, inadequate closure and contingency
plans, and a deficient ground water monitoring pro-
gram.
Fieldsbrook Site (CERCLA): On March 22, 1989, a
CERCLA Section 106 Order was issued to nineteen
PRPs requiring them to perform a Remedial Design
(RD) for the sediment Operable Unit and conduct a
Remedial Investigation/Feasibility Study (RI/FS) for
the Source Control Study at the Fieldsbrook, OH, site.
The site consists of a stream in an industrial area near
Ashtabula, OH. The stream is accessible to children,
and sediments in the stream are highly contaminated.
Previous EPA response action at the site consisted of
completion of an RI/FS, which established the need for
a sediment Operable Unit. When designed and imple-
mented, the sediment Operable Unit will remove some
of the contaminated sediment. The Source Control
Study will determine the origin of the contaminants, at
which time the problem can be addressed. Six PRPs
have agreed to perform this work, with a total value in
excess of $5 million. A lawsuit was filed pursuant to
CERCLA Section 107 on September 29, 1989, seeking
recovery of allresponsecostsofapproxima tely$969,000,
as well as attorney's fees and costs.
Industri-plex Superfund Site (CERCLA): A compre-
hensive settlement for remediation of the Industri-plex
Superfund site in Woburn, MA, was entered in April
1989. The thirty-four defendants who joined the con-
sent decree will perform the remedial action, consisting
of a cap over contaminated soils, an impermeable cap
and gas collection and treatment system for the East
Hide Pile portion of the site, interim hot spot ground-
water extraction and treatment system, and further
groundwater studies. The cost of the remedy is esti-
mated at $24 million, exclusive of EPA's past costs and
the costs expended by Potentially Responsible Parties
in performance of the Remedial Investigation/Feasi-
bility Study. The defendants will pay the United States
$377,000 in past costs out of about $1.3 million. The
total value of the settlement is approximately $28 million.
The settlement provides for a comprehensive cleanup of
one of the most publicly visible sites on the original
National Priorities List.
A noteworthy element of the settlement is the
disposition of real estate at the site owned by the Mark-
Phillip Trust, a major landowner at the site with no
other assets. In consideration of the settlement, the
Mark-Phillip Trust conveyed its land, worth $8 to 10
million, to a custodial trust which will manage, subdi-
vide, and attempt to sell the land. When the custodial
trust sells the land, the United States will receive a
percentage of the sale proceeds to reimburse any re-
maining past costs at the site and to be applied against
any future response costs. Final settlement of the case
was prompted by EPA's issuance of a unilateral ad-
ministrative order against all PRPs with a delayed
effective date. Issuance of the order forced rapid coa-
lescence of previously disorganized PRPs and estab-
lished a definite termination date for negotiations.
In the Matter of I. Jones Recycling (CERCLA); On
May 19,1989, EPA referred a proposed CERCLA Sec-
tion 122(g) de minimis settlement Administrative
Order to the Department of Justice for the I. Jones
Recycling, IN, removal action. I. Jones was operated as
an interim status hazardous waste storage and recy-
cling facility from 1980 to 1986. Under the terms of this
settlement, 139 companies have agreed to pay a total of
$2,172,039 into the Superfund, with specific amounts to
be paid based on their volumetric contributions. Of
that total, $1,888,326 represent reimbursement for a
portion of the Agency's past costs at the site, with the
balance representing payments in settlement of poten-
tial penalty liability faced by parties who had not
complied with EPA's July 27,1988 unilateral cleanup
Order. The de minimis settlement resolved their liabil-
ity for response costs both for the work to be done under
that order and for two previous removal actions by
EPA which stabilized the site and removed liquid
wastes. In August, 1989, PRPs completed work valued
at approximately $5 million, in accordance with the
1988 Order. Sludges and sediments were cleaned out of
more than 30 tanks, substantial amounts of solvent-
contaminated soil were removed and disposed of, and
PCB contamination was removed from a basement
boiler room. Groundwater and sediments in a nearby
creed were also sampled and determined not to be
contaminated.
U.S. v. Kayser-Roth Corporation and Hydro-Manu-
facturing, Inc. (CERCLA); In May 1988, EPA filed suit
against two parties seeking recovery of approximately
$700,000 in removal costs and a declaratory judgment
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that the defendants are liable for all future costs at the
Stamina Mills Superfund Site in Forestdale, RI. In June
1989, EPA entered into an agreement with the defen-
dant Hydro-Manufacturing, a defunct corporation
which is the current owner of the site. Under the
agreement, after the construction phase of the cleanup
is completed in the next several years, EPA will obtain
the proceeds from the sale of the site property. The
agreement has been lodged with the court.
In July 1989, the case against defendant Kayser-
Roth went to trial. Kayser-Roth was the parent corpo-
ration of the former owner/operator of the site, Stam-
ina Mills, Inc., which dissolved in 1977. On October 11,
1989, the court held that Kayser-Roth exercised perva-
sive control over Stamina Mills and is therefore liable
both as an operator of the site and under the theory of
piercing the corporate veil. The court's decision ex-
pands the law on piercing the corporate veil under
CERCLA based on its conclusion that CERCLA should
be "viewed expansively" and with "no special impor-
tance [placed] upon the corporate structure."
In the Matter of Kerr-McGee Corp. (Forest Products
DivisionKRCRA): In November 1988, Kerr-McGee
entered into an Administrative Order on Consent which
requires the company to implement a corrective action
program, including interim measures, at its Spring-
field, MO, facility to address creosote contamination of
soil and groundwater. Under the terms of the Order,
interim measures include closure of three surface
impoundments and an experimental land treatment
area at the facility. The company is also required to
pump and treat groundwater removed from two
trenches constructed at the facility that are to intercept
contaminated groundwater leaving the site. Implem-
entation of additional corrective measures by EPA will
be the subject of future negotiations.
Lakehurst Naval Air Engineering Facility: This facil-
ity contains forty-four known "hot spots" where aircraft
fuels, oils, hydraulic fluids, volatile organic compounds,
and other contaminants were disposed of over the
years. In FY 1989, EPA Region II negotiated an Inter-
Agency Agreement with the Navy which encompasses
all activities relating to the site including the Remedial
Investigation/Feasibility Study and the Remedial
Design/Remedial Action. The estimated value of this
work is $30 million. This was the third such agreement
which the Navy has executed nationwide, and the
Navy and EPA anticipate using it as a prototype for
other Naval facilities on the National Priorities List.
U.S. v. Lee Brass (RCRA): The decision in this case held
that EPA was not barred from requiring the Respon-
dent to amend its RCRA permit application to include
an EP toxic sand pile as a regulated unit. This case is
significant in that it was the first administrative deci-
sion in the country to rule that the July 1987, American
Mining Congress decision does not preclude regula-
tion of recyclable materials where the reclamation
process entails placement on the land of EP toxic mate-
rials in a manner that threatens the environment.
Lone Pine Site (CERCLA): A consent decree for
implementation of the remedial design and remedial
action at the Lone Pine site in Freehold, NJ, was lodged
with the Court on August 25,1989. Under the settle-
ment, a large number of Potentially Responsible Parties
will perform work including installation of a slurry
wall, capping, and a groundwater pump and treat
system, with an estimated value of $42 million. A
referral has also been sent to the Department of Justice
seeking initiation of a cost recovery action against
selected non-settlors.
U.S.v.Macon (CERCLA): On September 22,1989, the
United States lodged with the U.S. District Court for the
Middle District of North Carolina the Consent Decree
for United States v. Macon, et al.. a cost recovery action
brought by the United States for recovery of costs
incurred in conducting a removal action at the Macon
and Dockery sites in Cordova, NC. Significantly, it was
the first CERCLA action EPA brought against a gen-
erator of used automotive crankcase oil. Under the
settlement, the parties agree to reimburse the Super-
fund for $1385,100, virtually 100% of the government's
documented response costs. In addition, most of the
settlors have also agreed not to contest issues of liability
in any subsequent action for a site remedy.
Metro Container Site: Through theuseofaSectionl06
Administrative Order, EPA was able to quickly re-
spond to the immediate dangers posed by the presence
of approximately 50,000 contaminated drums at the
Metro Container site in Trayner, PA, and to involve
responsible parties in a much more comprehensive
removal action than would have been possible had the
Agency proceeded with a removal action using Super-
fund monies. The order was signed on June 16,1989,
and the work of removing and disposing of the leaking
drums on the site is already well underway.
The Metro Container site posed unique envi-
ronmental problems. The site had been used as a drum
reconditioning operation, and contained thousands of
drums, many still partially filled with hazardous sub-
stances from numerous sources. Although several
parties were initially informed of their potential liabil-
ity, many dropped out of the negotiation process, claim-
ing exemption from liability under the CERCLA petro-
leum exclusion. Eventually, only five parties (Mobil,
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FY1989 Enforcement Accomplishments Report
m)
DuPont, British Petroleum Oil Company of America,
Arco Chemical Company, and Sun Refining and Mar-
keting Company), continued negotiations with the
Agency. The most immediate threat posed by the
presence of the leaking drums was to the surrounding
vegetation and to the wildlife in a nearby stream.
Dying vegetation and fish kills were observed at the
site. The site also posed a threat to human health
because the water from the stream was used as a source
of drinking water much further downstream.
Because of the urgency of the threat, EPA pro-
ceeded with a stabilization measure, the construction
of a coffer dam to prevent further leakage from exposed
drums into the stream, while efforts to contact respon-
sible parties were underway. During the stabilization
process, negotiations proceeded on an Administrative
Consent Order which would address completion of the
removal action. The result, which came only a few
months later, was a commitment from the five respon-
sible parties mentioned above to complete the removal
action. The agreement has resulted in a much more
extensive removal than originally anticipated by the
Agency. The discovery of additional drums added
considerably to the costs which would have been in-
curred at the site, but the responsible parties have
agreed to remove all additional drums as well. In
addition, many of the drums have already been crushed
and removed from the site for proper disposal. This
Administrative Order has resulted in a speedy and
significant abatement of the immediate threa t posed by
this site. With work satisfactorily underway at the site,
EPA is considering the possibility of issuing a Section
106 Unilateral Administrative Order against six to ten
of the recalcitrant parties, requiring them to perform
discrete portions of the removal work remaining at the
site.
U.S. v. Murry's Inc. (CERCLA): On December 1,1988,
EPA filed three administrative complaints alleging
various violations of CERCLA and SARA Title III in-
volving the Murry's Inc., facility in Lebanon, PA.
Murry's Inc., experienced a "release" of anhydrous
ammonia on July 12, 1988, and failed to report this
release to the National Response Center pursuant to
CERCLA Section 103, and to the State Emergency Plan-
ning Commission or Local Emergency Planning Com-
mission pursuant to Section 304 of SARA Title III.
Subsequent investigation revealed that Murry's Inc.,
also failed to submit the requisite emergency planning
documentation under Sections 311, 312, and 313 of
SARA Title III. The total proposed penalty for the three
administrative complaints is $68,000. The cases were
settled for a total payment of $51,250 in penalties." The
Murry's Inc., case is the first administrative enforce
ment action under Sections 311 and 312 of SARA Title
III in the nation.
National Standard v. Adamkus. et aL (RCRA): On July
17, 1989, the United States Court of Appeals for the
Seventh Circuit issued a very favorable decision for
EPA in this case, affirming the District Court'sdecision.
National Standard Company owns and operates two
RCRA facilities in Niles, MI, which were seeking RCRA
permits. EPA proposed a sampling visit to determine
whether corrective action would be an appropriate
permit condition. National objected to the scope of the
sampling visit, and filed a declaratory judgment action
against EPA and the contractors who were to perform
the sampling visit. EPA applied for and obtained an ex
parte warrant, and prevailed against motions for a
Temporary Restraining Order (TRO) and to quash the
warrant. The district court granted summary judg-
ment in favor of EPA on March 23, 1988, which the
company appealed. The July 17,1989, Court of Appeals
decision upholds EP A's position that Section 3007(a) of
RCRA provides EPA with broad authority to inspect
and sample any facility at which EPA has probable
cause to believe that statutory violations are occurring.
The court held that the warrant in this case: (1) was
based upon probable cause, as evidenced by the de-
tailed affidavit of the EPA technical assignee; (2) was
not overbroad, since EPA proposed taking no more
than 60 solid waste, water, and air samples, including
background samples; and (3) was properly issued ex
parte, despite the pendency of civil proceedings. Thus,
EPA was properly authorized to perform the inspec-
tion and sampling visit.
U.S. v. Nicolet Inc. et al. (CERCLA); The United States
filed a complaint in 1985 for recovery of costs incurred
and to be incurred pursuant to Section 107 of CERCLA,
with respect to an EPA response operation at the Ambler
Asbestos Site in Ambler, PA. Nicolet Inc., filed for
bankruptcy in July 1987. In August 1989, the district
court entered a consent decree embodying a settlement
reached between Nicolet Inc. and EPA for payment of
$900,000 towards EPA's costs. On May 25,1989, the
other defendant in the action, Turner & Newall, reached
an agreement in principle for performance of Remedial
Design/Remedial Action and Operation and Mainte-
nance at the Site (estimated at approximately $5.5 mil-
lion), payment of EPA's oversight costs of such actions,
and payment of $550,000 towards EPA's past response
costs. The United States and Turner & Newall are
currently negotiating a consent decree.
Ninth Avenue Dump (CERCLA): An Administrative
Order was issued pursuant to CERCLA Section 106 to
approximately 185 PRPs on December 7, 1988, after
negotiations with the PRP Steering Committee. From
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FY1989 Enforcement Accomplishments Report
the early to mid-1970's, wastes, including oil, solvents,
paint solvents and sludges, resins, acids and various
other caustic and flammable materials was disposed of
at the site which is located in Gary IN. Inspections by
the Indiana State Board of Health estimated that ap-
proximately 500,000 gallons of liquid industrial waste
had beendumped there, and approximately 1,000 drums
had been buried. The Administrative Order requires
the performance of an Operable Unit at the Site, as an
interim action for remediation of an oil layer floating on
the ground water, to abate some of the immediate threat
to health and environment. The Unit will consist of
construction of a slurry wall around the heaviest ground-
water contamination at the site, and the pumping and
treating of the contained ground water. On January 13,
1989, over 100 PRPs sent EPA a Notice of Intent to
Comply with theCERCLA 106Order; specifically, they
committed to spending $4.5 million for the Operable
Unit remedy. This compliance is significant insofar as
most of the liability evidence against the PRPs was
derived from eight depositions conducted pursuant to
the new SARA 122 subpoena authority. A second
CERCLA106 Order was issued for the second operable
unit, and a de minimis settlement is pending.
U.S. v. Occidental Chemical Corp. (Love Canal -
Sewers and Creeks) (CERCLA): In June 1989, EPA, the
State of New York, and Occidental Chemical Corp.
signed a consent decree concerning the performance of
remedial action at the Love Canal site in Niagara Falls,
NY. The decree provides for Occidental to implement
portions of the remedial action selected in EPA's 1986
Record of Decision. Specifically, Occidental will store
the sediments to be dredged from sewers and creeks
near the site in a centralized, permitted waste storage
facility to be constructed at its Buffalo Avenue plant
nearby. Occidental will subsequently incinerate the
materials in a centralized, permitted thermal destruc-
tion unit also to be built at its plant site, and dispose of
residues remaining after incineration in accordance
with all applicable laws and regulations. The estimated
value of this settlement is $23 million.
U.S. v. William J. O'Hara. et. al. (CERCLA): In May
1989, the court approved a consent decree resolving a
complaint filed against nine potentially responsible
parties (PRPs or settlor) pursuant to Sections 106 and
107 of CERCLA. The settlement required, among other
things, the settlor to finance and perform Remedial
Design/Remedial Action in regard to remediation of
the Henderson Road Superfund Site Injection Well
Operable Unit (injection well unit) located in Pennsyl-
vania. The settlement was reached when EPA issued
Special Notice pursuant to Section 122 of CERCLA, to
numerous PRPs notifying them of their potential liabil-
ity for remediation of the injection well unit. Under the
decree the settlors paid past response cost of $188,000,
established a cleanup fund to finance the approximate
$7 million remediation, and agreed to pay future over-
sight costs pertaining to the operable unit. Disposal in
the 1970's of waste into a former industrial water sup-
ply well, the injection well, located within a garage on
the site is considered a cause of the extensive ground-
water contamination discovered there.
O'Neil v. Picillo (CERCLA): An explosion and fire in
1977 involving hazardous materials at the Picillo farm
in Coventry, RI, resulted in the site being listed on the
Superfund National Priorities List. EPA and the State
of Rhode Island removed liquid wastes and more than
10,000 drums of waste from the site. Soil that was
contaminated with PCBs and phenols was removed
under consent decrees with EPA and the State. On
August 21, 1989, the First Circuit Court of Appeals
issued a decision in this case which provides a very
strong precedent supporting joint and several liability
for CERCLA cleanup costs. The AppealsCourt rejected
the argument by two chemical companies that it was
unfair to hold them jointly and severally liable for the
entire $1.4 million in site cleanup costs when their
contribution to the total amount of waste at the site was
insubstantial. In a footnote, the court also rejected the
contention that the government had the initial burden,
before joint and several liability may be imposed, of
showing that the defendants were a"substantial" cause
of the harm. The court held that damages should be
apportioned only if a defendant meets its burden of
showing that the harm is divisible. The court upheld
the liability findings against American Cyanamid
Company and Rohm & Haas Company because they
had not met that burden. Equitable factors could come
into play, the appeals Court remarked, in a contribu-
tion action as opposed to the primary action brought by
the government.
U.S. v. Outboard Marine Corp. (CERCLA): A consent
decree was entered on April 28, 1989 and ends a
litigious 13-year history for this controversial case,
which began with the discovery of high levels of PCBs
at the site which is located in Waukegan, IL. The decree
calls for remedial action including construction of a
new slip, dredging of the Upper Harbor, construction
of three containment cells, and extraction of PCBs from
contaminated soils and sediments with off-site destruc-
tion. In keeping with SARA's mandate for permanent
remedies, "hot spots," defined as areas with PCB con-
centrations of greater than 10,000 parts per million, will
be treated by innovative technology that will reduce
PCB concentrations by 97%. The remedial action will
thus greatly reduce the existing risks of PCB exposure
on Outboard Marine Corp., property and will improve
water quality in Waukegan Harbor, reducing to near
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FY1989 Enforcement Accomplishments Report
zero the migration of contaminants into Lake Michi-
gan. This project is estimated to last four years and cost
the company approximately $20 million.
U.S. v. Tames Parsons (CERCLA): On August 9,1989,
the U.S. District Court for the Northern District of
Georgia granted in part and denied in part a govern-
ment motion requesting treble damages against defen-
dants for their failure to comply with a CERCLA Sec-
tion 106 administrative order. The Court granted the
government's motion as to all but one of the defen-
dants. The government supported its motion with
affidavits showing that the defendants had adequate
opportunity to comply with the order before EPA
conducted the removal action. The order is significant
because it is the/irst federal district court decision to
hold a defendant liable for treble damages for violation
of a CERCLA Section 106 administrative order.
U.S. v. Phoenix Capital Enterprises, Inc.. et al.
(CERCLA): This consent decree involves the Vertac
Superfund site located in Jacksonville, AR. The consent
decree will resolve the United States' claims against
three corporations (Phoenix Capital Enterprises, Inc.,
InterCapital Industries, Inc. and Inter-AG Corpora-
tion) and two individuals (C.P. Bomar, Jr. and J. Randal
Tomblin) who are related to Vertac, the owner of a
Superfund site in Jacksonville, AR. The consent decree
will not resolve the United States' claims against Vertac
itself. Under the consent decree, these corporations
would pay $1,840,000 toward environmental response
costs, and $126,000 toward natural resources damages.
In addition, these corporations agreed to pay 33% of
their pretax income for the next 12 years. Moreover, if
the parent corporation liquidates within the next 12
years, the United States would obtain 40 percent of the
company's liquidation value. Because of the settling
parties exceedingly limited ability to pay, this settle-
ment involves a complete covenant not to sue under
Section 122(f)(6)(B) of CERCLA.
In the Matter of Portsmouth Gaseous Diffusion Plant
(RCRA7CERCLA): The consent order regarding the
Portsmouth, OH, Gaseous Diffusion Plant is the first
ever combination RCRA 3008(h) and CERCLA 106(a)
consent order for a Federal facility. Under the terms of
the order, the U.S. Department of Energy (DOE) is
required to conduct a multi-media investigation at
approximately 40 waste units at the plant, and imple-
ment necessary corrective measures, due to the release
of radionuclides, and the presence of PCBs leaking
from pipes in several buildings, and other organic
compounds present at the site. DOE estimates that the
cost of the studies and remediation will be $112.7
million for the life of the agreement. EPA coordinated
with the State of Ohio in this matter, resulting in a
parallel State agreement containing requirements for
submittals and time schedules identical to those in the
Federal order. The CERCLA 106(a) authority included
in the order establishes valuable enforcement prece-
dent for all Regions regarding access, reservation of
rights, and other issues. Also precedential here is the
fact that both studies and remediation are required; the
usual CERCLA order requires one or the other.
RCRA Corrective Action Initiative: EPA's Region I
office issued a combination of eight RCRA corrective
action orders/permits in FY 1989 active hazardous
waste management facilities, requiring site characteri-
zations and corrective measures studies. In two in-
stances, EPA required ongoing river studies character-
izing heavy metals, dioxin, and dibenzofuran migra-
tion and contamination. In one instance, the Region
required air modeling studies incident to air releases
not covered under the State air authorities. Among the
recipients of these orders/permits were a number of
major corporations including Ciba-Geigy, Remington
Arms, United Technologies, Upjohn, and W. R. Grace.
Republic Hose (CERCLA): Alternative Dispute Reso-
lution (ADR) was used for the first time in Region V to
settle a case for recovery of response costs. In 1981, EPA
performed emergency response actions due to a PCB
spill at a city-owned facility in Youngstown, Ohio.
Approximately 15 transformers of various sizes had
been vandalized. Five transformers with capacities
between 250-500 gallons were tipped over on a roof,
and one had leaked 425 gallons of PCB oil into a dirt-
filled sub-basement. Some areas had PCB levels up to
380,000 parts per million. EPA clean-up action was
completed in 1985, and included staging and decon-
tamination of the transformer shells, soil and debris,
and cleaning of buildings, the sewer system and the
sewer outlet area of nearby Crab Creek. An ADR
Agreement was entered into between EPA and Young-
stown in January 1989. On May 19, 1989, a CERCLA
122(h) consent agreement was signed by Youngstown
and Republic Hose, the firm which took over the site
after the spill. An amount of $295,000 was recovered as
a result of this action. The use of ADR significantly
reduced the time and resources expended by EPA in
resolving this case.
Rocky Mountain Arsenal (CERCLA): EPA, Shell, and
the U.S. Army entered into a three-party Federal Facil-
ity Agreement pursuant to CERCLA Section 120 to
conduct the overall on-post and off-post RI/FS at the
site. The Army has estimated the cost of the RI/FS at
$115 million. This agreement resolved the ongoing $2
billion litigation between the Army and Shell, and
committed Shell and the Army to contribute both tech-
nically and monetarily to the estimated $700 million to
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FY1989 Enforcement Accomplishments Report
$3 billion remedy. Stipulated penalties for failure to
meet schedule deadlines of $5,000 for the first week and
$10,000 for each subsequent week can be collected.
Early clean-up was agreed to via 13 interim response
actions, estimated to cost $138 million. In addition, the
Army agreed to provide $550,000 per year to EPA to
oversee the work being performed by Shell and the
Army, resulting in substantial savings to the Super-
fund.
U.S. v. Rohm and Haas Co.. et al. (CERCLA): On
September 29, the U.S. District Court for the District of
New Jersey entered a settlement with certain de mini-
mis parties in the government's CERCLA enforcement
action at the Lipari Landfill in Glouchester County, and
issued an extremely favorable opinion regarding the
propriety of the settlement. The court determined that
the settlement was "fair, reasonable, and in furtherance
of CERCLA's goals" and that the settlors met the criteria
for de minimis settlement set forth in CERCLA Section
122(g). The court disagreed with the argument of two
nonsettlors that the settlement reflects an inaccurate
allocation of liability for waste contributed to the landfill.
The court also supported the government's determina-
tion that transporters are not entitled to a reduction in
liability for waste contributed to the site by their set-
tling customers.
U.S. v. Royal Hardage. et al. (CERCLA): This case
involves a CERCLA de minimis settlement in a civil
action, which was filed pursuant to sections 106 and 107
of CERCLA and section 7003 of RCRA on June 25,1986,
to compel the investigation and cleanup of a major
National Priorities List site located in Criner, OK, and
recover CERCLA response costs. (In 1988, the United
States dismissed its RCRA counts in the case.) The case
was filed against 36 of the more than 350 Potentially
Responsible Parties at the site. On September 22,1989,
the court approved and entered the consent decree
embodying the settlement, which would, with certain
exceptions, resolve the liability of some 179 of the site
PRP's. This settlement, which represents in excess of
$11,000,000 in cash settlement payments or credits by
the settling PRP's, is based on the EPA "Interim Guid-
ance on Settlements with de minimis Waste Contribu-
tors under Section 122(g) of SARA,: 52 Fed. Reg. 24333"
(June 30,1987). It is the second largest of such settle-
ments that EPA has ever entered.
U.S.. etal. v. SCA Services of Indiana. Inc. (CERCLA):
On July 18,1989, the Northern District Court of Indiana
entered a consent decree in this case. The Fort Wayne
Reduction Site was operated as an incineration and
reclamation center from the late 1960's to the mid-
1970's. Under the consent decree, defendant SCA is
required to implement a $10.2 million remedial action
and to pay a portion of future oversight costs. The State
of Indiana is also a party to the decree. The remedy
includes excavation to remove approximately 4,600
drums of liquids, installation and maintenance of a
groundwater collection system to protect the Maumee
River, installation and maintenance of a soil cover,
limitation of future site use through deed restrictions,
and enhancement of on-site wetlands as necessary
during the remedy construction. EPA continues to
negotiate with the 61 non-settling generator PRPs for
recovery of past costs and a portion of future oversight
costs.
U.S. v. Spectra-Chem (CERCLA): On February 19,
1989, the Regional Administrator in Region V executed
an Alternative Dispute Resolution settlement agree-
ment resolving the liability of Spectra-Chem Corpora-
tion and its President, William Flynn, for costs incurred
by EPA for removal activities completed on January 8,
1986. Spectra-Chem agreed to sell its property, ap-
praised at $8,700, and turn the proceeds over to EPA in
satisfaction of the company's liability as the sole PRP in
the case.
Spokane County & Key Tronic Corporation at Colbert
Landfill (CERCLA): In January 1989, EPA and the
Washington Department of Ecology entered into a
consent decree with the County of Spokane and Key
Tronic Corporation to initiate clean up of the Colbert
Landfill, a forty-acre landfill which was operated by the
County between 1968 and 1981. During that time, Key
Tronic Corporation, the U.S. Air Force and others dis-
posed of hazardous waste at the site. Under terms of
the consent decree, Spokane County agreed to imple-
ment the Remedial Action plan. The decree obligates
Key Tronic to make payments into the Colbert Landfill
Trust Fund for cleanup costs. EPA and the State have
also agreed to contribute some mixed funding to the
Trust Fund to aid in the cleanup. Additionally, the Air
Force has agreed to enter into separate Interagency
Agreements (lAGs) with both EPA and the State in a
proposed de minimis settlement. These two agree-
ments will require the Air Force to pay $1.45 million
into the Colbert Landfill Trust Fund.
U.S. v. Thomas Solvent Company, et al. (CERCLA):
On June 5,1989, a consent decree was entered in this
cost recovery case, after a year-long period of negotia-
tions. Under the terms of the decree, Grand Trunk
Western Railroad Company, one of several defendants,
will pay over $4.7 million to the Superfund (75% of
EPA's past costs), and over $600,000 to the State of
Michigan, admit future liability as to several specific
site areas, and receive a covenant-not-to-sue for past
costs as well as contribution protection as provided
under CERCLA. Clean-up work to date at the site
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FY1989 Enforcement Accomplishments Report
includes stabilization of the contaminated groundwa-
ter plume with subsequent protection of the City of
Battle Creek's municipal water supply, which has a
capacity of 20 million gallons per day. Thousands of
pounds of VOCs have been removed from the ground-
water through a "pump and treat" system of wells and
activated carbon filtration, and through soil vapor
extraction to clean the soil. Approximately 20 under-
ground storage tanks that had been leaking VOCs have
also been removed.
U.S. v. Time Oil Company (CERCLA): On November
4,1988, a consent decree was entered in the Western
District Court of Washington which requires Time Oil
Company of Tacoma, WA, to pay $8.5 million, plus
interest, to the Superfund over an eight year period.
Settlement also involves additional payments to the
City of Tacoma and the State of Washington. The
company's payment to the Superfund represents 60
percent of the total estimated EPA response costs of $16
million. The remedy involves cleanup of soils and
groundwater on and beneath the Time Oil Property,
and at a City of Tacoma drinking water supply well.
This well provides over one-third of the City of Ta-
coma's summer supply of drinking water. In Septem-
ber 1989, another civil action was referred by the Re-
gion to DOJ, requesting that two additional defendants
be named and brought into the case. EPA intends to
recover its remaining costs from these defendants who,
EPA alleges, have also contributed to the contamina-
tion of the city's well.
In the Matter of Tesoro Alaska Petroleum Company
(RCRA); An administrative consent order for correc-
tive action was signed by the Tesoro Alaska Petroleum
Company and Tesoro Petroleum Corporation, and
became effective on September 30,1989. The facility is
a petroleum refinery located on the Kenai Peninsula in
Alaska. Until the early 1980s, the company operated
three disposal pits for oily sludges generated by its
refinery operations. Under earlier administrative or-
ders, EPA required that groundwater monitoring wells
be installed adjacent to and downgradient from these
pits. This groundwater monitoring system revealed
that contamination from these pits had reached the
groundwater. In July 1988, Tesoro submitted reports
that identified contamination at another portion of the
facility. Further investigation revealed that a layer of
oil was floating on groundwater at the site, and that the
con lamination had mi grated beyond the facility's prop-
erty line. A faulty oily-water sewer system was identi-
fied as the probable source. The corrective action order
requires that additional cleanup be undertaken to stop
the continuing migration of contamination released
from the pits and oily-water sewer system. The order
also requires that a more extensive investigation be
completed and the other potential corrective measures
be evaluated. The final remedy for site cleanup will be
selected and imposed by EPA after completion of the
requirements of the current order.
In the Matter of Tri-State Mint. Inc. (CERCLA): On
June 30, 1989, EPA issued two administrative com-
plaints against Tri-State Mint, Inc., for failure to notify
EPA of a release. One of the complaints was issued
under CERCLA Sections 103 and 109, for failure to
notify of a release of sodium cyanide in excess of the
reportable quantity (ten pounds). A penalty of $25,000
was proposed. The second complaint was issued under
Section 325 of the Emergency Planning and Commu-
nity Right-to-Know Act of 1986 (EPCRA), for two counts
of failure to notify of a release of an extremely hazard-
ous substance (sodium cyanide). A penalty of $25,000
for the EPCRA complaint was proposed. Neither
complaint had been resolved by the end of FY 1989.
In the Matter of Union Oil Company (CERCLA): On
December 14,1988, EPA issued a CERCLA Section 106
unilateral order to Union Oil Company (Unocal) for
clean up and remediation of a non-operating chemical
tank farm and transfer station in Denver. The soils at
the site and the underlying groundwater aquifer are
contaminated with solvents. The order requires Un-
ocal to pump the aquifer, remove the solvents from the
water using an air stripper, and to treat the soils. An
estimated savings of $10 million will be realized for
Superfund by having Unocal perform the work.
U.S. v. Velsicol Chemical Corporation
(RCRA/CERCLA): Velsicol Chemical Corporation has
agreed to fund and implement the Remedial Design/
Remedial Action, at its former chlordane manufactur-
ing facility in Marshall, IL. A consent decree incorpo-
rating this agreement was entered September 15,1989.
Velsicol will excavate 97,000 cubic yards of contami-
nated soils and sediments from the plant production
area, surface impoundments, and a creek running
through the property; they will chemically stabilize
these soils and sediments and consolidate them in an
on-site landfill with a RCRA-compliant cap. The settle-
ment also includes the resolution of a RCRA Section
3008(a) administrative enforcement action (a $65,000
penalty and closure of all active hazardous waste
management units). The estimated clean-up cost in the
Record of Decision is $9.1 million. Velsicol also reim-
bursed EPA $1.2 million of its $1.6 million in past costs.
Yaworski Lagoon Settlement (CERCLA): In August
1989, EPA obtained agreement to a consent decree from
11 PRPs for complete Remedial Design/Remedial
Action performance, payment of $2.225 million in past
costs, and reimbursement of oversight costs regarding
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FY1989 Enforcement Accomplishments Report
the Yaworski Lagoon Site in Canterbury, CT. Under
the consent decree, the Potentially Responsible Parties
are required to: (1) implement the remedial design and
remedial action selected by EPA in its Record of Deci-
sion (worth $3.4 million); (2) reimburse $2.225 million
in past EPA costs (85% of total EPA costs and interest
and over 100% of past costs, exclusive of interest); and
(3) pay all long-term oversight costs and up to $225,000
in oversight costs during construction. In total, the
package represents recovery of 94% of total site re-
sponse costs.
Toxic Substance Control Act (TSCA). Fed-
eral Insecticide. Fungicide. &
Rodenticide Act (FIFR A). &Emergency Plan-
ning and Community Right
to Know Act (EPCRA) Enforcement
U.S. v. Boliden Metech: An EPA Administrative Law
Judge (ALJ) issued a decision including assessment of
a $32,000 penalty in this Region I case involving PCB
violations at the Boliden Metech site in Providence, RI.
Boliden was found to have violated TSCA when it
improperly stored and disposed of PCB contaminated
shredded metal and debris. Boliden shreds used com-
puters and electronic equipment. This case was vigor-
ously contested and is currently the subject of a com-
panion case filed in the United States District Court of
Rhode Island.
The ALJ's opinion had several significant as-
pects: (1) it is not always necessary to take a "represen-
tative sample" to prove a violation of the PCB regula-
tions; (2) procedures for taking samples set forth in the
TSCA inspection manual are "guidelines". Failure by
EPA to follow sample collection procedures of TSCA
"are not fatal" and does not destroy the validity of the
samples; (3) EPA is not required to prove that spilled
PCBs were released into the surrounding soil to prove
improper disposal; (4) the PCB regulations require
analysis "by any scientifically valid method"; (5) EPA's
PCB tests are reliable; and (6) sampling outside a com-
pany's property (in this case sampling in the Provi-
dence River) does not violate unreasonable search and
seizure prohibitions of the Fourth Amendment to the
Constitution. This decision supports EPA's efforts to
regulate the storage and disposal of PCB-contaminated
shredded material and debris. A companion action
seeking an injunction and remedial order was filed in
the District Court of Rhode Island in May 1989.
In the Matter of the City of Detroit: A decision was
issued in this case finding that the City of Detroit has
violated the PCB regulations at four sites in Detroit
where PCBs were spilled at levels in excess of 500,000
parts per million (ppm). A penalty of $264,000 was
imposed for the violations.
In the Matter of Dow Chemical Company: EPA filed
a TSCA civil administrative complaint against Dow
Chemical Company (Dow), on June 16, 1987. The
complaint charged Dow with 227 counts of illegal
manufacture of a new polycarbonate plastic, without
having first submitted a premanufacture notice (PMN)
in accordance with TSCA Section 5. On September 20,
1989, the Chief Judicial Officer approved a settlement
of the action which requires Dow to pay a $405,200 civil
penalty. The settlement figure takes into account
numerous actions and expenditures undertaken by
Dow to address the cause of the violations, including
comprehensive internal audits and improved training
programs.
In the Matter of Ensco. Inc.: EPA's right to inspect PCB
facilities were strengthened in June 1989, when an EPA
ALJ rejected the company's attempt to limit Agency
inspections. In May 1989, Energy Systems Co., Inc.
(Ensco) filed for an authorization to conduct discovery.
In support of this legal action Ensco said EPA inspec-
tions of its PCB and hazardous waste incineration
facility at El Dorado, AR, were so much more frequent
than at any other facility that they were unconstitu-
tional under the due process and equal protection
clauses of the Constitution. Under a 1986 contract with
EPA, Ensco is permitted to disposeofPCBsatEl Dorado.
In 1987, EPA insisted the authorization be amended so
that the facility could be inspected by the State of
Arkansas up to three times a day. The cost of the
inspections is borne by Ensco.
In rejecting Ensco's claim, the ALJ said the dis-
covery request was "actually an attack on the contract
entered into with the State of Arkansas" and that "this
is not the appropriate forum to test the validity of this
or any other contract." The ALJ also ruled that the
disposal permit conditions were binding, and he re-
jected the company's attempt to claim that EPA's in-
spection requirements, which are greater than at other
facilities, were unfair.
In the Matter of Hodag Chemical Corporation: In
early 1988, EPA initiated an enforcement action against
Hodag Chemical Corporation of Skokie, IL. EPA's
Complaint alleged violation of the PCB use rules for
operating a heat transfer system that contained more
than 50 parts per million PCBs for use in (among other
things) the manufacture or processing of food, drugs
and cosmetics. EPA's Complaint also alleged viola-
tions of the PCB Marking and Recordkeeping regula-
tions. Hodag's defense was that in 1971 or 1972
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FY 1989 Enforcement Accomplishments Report
SB
Monsanto, removed PCB oil from this heat transfer sys-
tem long before the promulgation of the PCB rules in
1978.
On November 14,1988, the ALJ ruled that Sec-
tion 15(1) and (3) of TSCA established a standard of
strict liability, and that a violation may be found for
violations thereof even when the violation is unknow-
ing. The ALJ went on to rule that as a matter of law the
terms PCB and PCBs include mono-chlorinated biphen-
yls, and that when a corporation has knowledge of
information in its files which would trigger a legal duty
to act it cannot escape liability because the particular
responsible corporate official was unaware of that in-
formation. A fine of $14,500 was imposed.
In the Matter of Eastman Kodak Co.: In a recent
pretrial order, an EPA ALJ denied a motion by Eastman
Kodak Co., to compel discovery by EPA in a TSCA
premanufacturing notice case. The ALJ also denied a
motion seeking "amplified summaries" of EPA's pre-
hearingexchange. In denying Kodak's motion to compel
discovery, the ALJ said that although discovery can
lead to admissible evidence and judicial economy,
"discovery, as a litigation art, can be put to inappropri-
ate uses." He also held that "there is no basic constitu-
tional right to pretrial discovery in administrative cases."
The ruling also affirms that discovery, other than what
is ordered by a judge for pretrial exchange is to be
subject to stringent review by a court.
In the Matter of McCloskey: This administrative
enforcement action was brought pursuant to TSCA, 15
U.S.C.Section2601etseq.InAugustofl987.McCloskey
voluntarily self-disclosed its TSCA violations after
completing a full audit at its three facilities. During the
conduct of the audit, the Respondent discovered that
they had, on multiple occasions, manufactured 26
chemical substances in violation of TSCA Section 5,
which requires a person intending to manufacture a
new chemical substance for commercial purposes to
submit to EPA a premanufacture notice (PMN) at least
90 days prior to the first such manufacture. The failure
to comply with these requirements is a violation of
TSCA Section 15(1)(B). After promptly self-disclosing
these violations to EPA, the Respondent then filed the
appropriate TSCA Section 5 notices (PMNs, polymer
exemption applications, etc.) for all 26 substances. This
includes filing PMNs on six substances which had been
out of production for more than five years. All chemi-
cals completed the TSCA review without imposition of
a Section 5(e) or 5(0 order.
On March 7,1989, EPA and McCloskey agreed
to a settlement which required McCloskey to pay a
$615,650 penalty, submit an article on TSCA compli-
ance to three trade journals, and conduct an Emergency
Planning and Community Right-to-Know Act (EPCRA)
Section 313 seminar for its customers. McCloskey has
performed all of its required duties under this agree-
ment, and has broadened its EPCRA Section 313 semi-
nar to include all of EPCRA rather than solely the toxic
release inventory reporting requirement.
In the Matter of Minolta Corporation: EPA reached
settlement with the Minolta Corporation resolving
violations under Sections 5 and 13 of TSCA. Under the
administrative consent agreement, Minolta will pay a
$600,000 civil penalty, develop a TSCA compliance and
training program, hold a seminar in Japan on TSCA
compliance, and place advertisements in ten national
publications highlighting TSCA requirements.
In the Matter of Riverside Furniture Corporation: In
this case involving failure to report under Section 313 of
EPCRA by a Fort Smith, AR, furniture manufacturer,
EPA Region obtained the first administrative determi-
nation of liability under EPCRA, and the first admin-
istrative decision awarding penalties under this sig-
nificant toxic chemica I reporting statu te. On March 27,
1989, an ALJ granted EPA's Motion for a Partial Accel-
erated Decision finding the Respondent liable under
the Act and holding that lack of knowledge is not a
defense to liability under Section 313. On July 26,1989,
EPA prosecuted the first EPCRA administrative hear-
ing on the assessment of penalties, and on September
28, 1989, the ALJ issued an Initial Decision, ordering
civil penalties in the amount of $75,000 against River-
side. In the opinion the ALJ stated that "the success of
EPCRA can be attained only through voluntary, strict
and comprehensive compliance with the Act and regu-
lations ... and a lack of such compliance will weaken, if
not defeat, the purposes expressed [in the Act]."
In the Matter of Rollins Environmental Services. Inc.:
An EPA ALJ has rejected a claim that a general statute
of limitations restricts EPA from taking an enforcement
action under the TSCA. Rollins Environmental Serv-
ices, Inc., claimed EPA was precluded from bringing
action in a PCB case because the violations took place
more than five years before the complaint was issued.
Rollins acknowledged that TSCA does not contain a
statute of limitations clause, but argued that the general
federal five-year statute of limitations governing en-
forcement does apply.
On July 13, the ALJ cited an April 2 ruling in the
Tremco case (see accompanying case in this section)
that the general federal statute of limitations provision
did not apply to EPA administrative penalty actions
under TSCA. The ALJ also rejected Rollins claims that
since the Federal statute of limitations pro visionapplies
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FY1989 Enforcement Accomplishments Report
to other EPA measures it should also apply to TSCA.
The Judge ruled that the other laws di ffered from TSCA
because TSCA alone provides for civil penalty assess-
ment with enforcement left to the federal District Court.
The other laws include enforcement provisions ruling
that the clock begins only when the inspection is made.
Rollins also claimed that it did not violate TSCA when
it incinerated kerosene containing less than 50 parts per
million of PCBs in a non-TSCA permitted incinerator.
The Judge ruled that the disposal of the PCBs, although
below 50 parts per million violated TSCA because PCBs
cannot be diluted with liquid to avoid proper disposal
in a PCB incinerator.
In the Matter of Schnee-Morehead, Inc.; On January
25, 1989, EPA filed a civil administrative complaint
against Schnee-Morehead, Inc., for numerous viola-
tions of the TSCA Section 5 premanufacture notifica-
tion requirements. The violations involved four poly-
mers, and occurred over many years. The settlement
agreement in this case, filed on January 26, 1989, re-
quires Schnee-Morehead to pay a $597,000 civil pen-
alty, over the course of two years.
In the Matter of SEP Inc., et al. (TSCA): In a decision
issued December 8,1988, by the Chief ALJ, the control-
ling officer of a defunct corporation was held individu-
ally liable for a $35,000 penal ty for improper disposal of
PCB waste materials by the corporation he controlled.
The ALJ held, following a three-day hearing, that a
corporate agency whose act, default, or omission causes
a corporation to violate TSCA is himself individually
liable for the violation - the first such holding in an
administrative action under this statute. The case
involved liability for PCB's left behind by a corporation
which accepted PCBs for disposal and then went out of
business. It was held that abandonment constitutes
improper disposal for TSCA purposes and that the
financial inability of Respondents to pay for proper
disposal did not absolve them from liability.
In the Matter of 3M Company: EPA issued a civil
administrative complaint against the Minnesota Min-
ing and Manufacturing (3M) Company of St. Paul,
Minnesota, proposinga $1.3 million penalty for numer-
ous violations of TSCA Sections 5 and 13. The viola-
tions, which 3M voluntarily disclosed to EPA, involved
the failure to notify EPA prior to importing two new
chemicals not on the TSCA Section 8(b) Inventory list,
and falsely certifying to the U.S. Customs Service that
the illegally imported chemicals were in compliance
with TSCA.
By Interlocutory Order dated August 7, 1989,
the ALJ granted judgment for EPA with respect to 3M's
liability for all counts alleged in the Complaint. The
precendential decision also struck 3M's statute of limi-
tations defense. In striking the defense, the ALJ found
tha t the TSCA new chemicals provisions are among the
most important and significant provisions of TSCA. A
hearing will be scheduled, in the future, to determine
the appropriate penalty amount to be assessed against
3M.
In the Matter of Toledo Edison: EPA initiated an
administrative enforcement action against Toledo
Edison for violation of the PCB storage and disposal
requirements. A PCB transformer at the Toledo Edison
Davis-Besse Nuclear Power Plant had ruptured spill-
ing PCB contaminated oil into a settling basin which
contained radionuclide contaminated water. Toledo
Edison completed an initial cleanup under supervision
of EPA representatives. The cleanup generated twenty-
six 55-gallon drums of material which were contami-
nated with both PCBs and radionuclides. Toledo Edison
could not dispose of this waste within one year as
required by the PCB regulations because there are no
facilities licensed to dispose of this type of waste. Toledo
Edison petitioned the EPA Administrator for an ex-
emption from the one year storage limit; the Adminis-
trator denied Toledo Edison's request.
Negotiations with Toledo Edison resulted in the
simultaneous filing of a civil administrative complaint
and a Consent Order resolving the complaint. The
Consent Order required that Toledo Edison: (1) com-
plete the cleanup to PCB rule specifications; (2) con-
tinue good faith efforts to obtain an acceptable disposal
method; (3) store the PCB/radionuclide waste in a
more stringent manner than that required by the PCB
regulations; (4) submit extensive reports; (5) remove all
PCB transformers from the facility; and (6) pay an
$18,000 civil penalty.
In the Matter of Tremco: This PMN administrative
enforcement action was brought pursuant to the TSCA,
15 U.S.C. Section 2601 et seq. The enforcement case
involved both voluntarily self-disclosed violations and
violations discovered by EPA during the conduct of a
TSCA investigation. In 1983, Tremco had notified EPA
that they had illegally manufactured three chemical
substances. This notification was made in Tremco's
cover letter which transmitted a PMN for each of these
substances. Each of the chemicals completed the TSCA
review without imposition of a Section 5(e) or 5(f)
order. In 1987, during a routine review of PMNs, an
EPA inspector from the National Enforcement Investi-
gations Center (NEIC) uncovered the 1983 letter and,
based on this letter, conducted an October 1987 inspec-
tion of Tremco's Barbourville, KY, plant site. The
inspector was able to verify the existence of TSCA
violations dating back to 1979, and was able to docu-
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FY1989 Enforcement Accomplishments Report
ment TSCA Section 5 violations during the PMN re-
view period which were not self-disclosed in the afore-
mentioned cover letter.
In 1988, EPA filed an administrative complaint
against Tremco. Tremco responded to the complaint by
raising the general federal statute of limitations (28
U.S.C. Section 2462) as an affirmative defense. EPA
moved the court to strike the statute of limitations
defense as inapplicable to TSCA administrative en-
forcement actions. On April 7,1989, the ALJ ruled that
the general federal Statute of Limitations does not
apply. The Judge ruled that statutes of limitation
ordinarily do not run against the United States unless
Congress explicitly directs otherwise, and there is no
legislative intent to apply 28 U.S.C. Section 2462 to
TSCA penalty proceedings. This important decision
allows EPA to address violative conduct (e.g., im-
proper PCB disposal, improper asbestos abatement,
and illegal chemical manufacture) which may have
initially occurred more than five years prior to issuance
of the complaint, but which continue to pose a risk to
human health and the environment. On July 17,1989,
EPA and Tremco entered into a Consent Agreement
which required Tremco to pay a $145,000 civil penalty.
In the Matter of University of Idaho: This enforcement
action is only the second in the nation to be brought
under the TSCA Worker Protection Rule [40 CFR Sec-
tion 763, Subpart G promulgated pursuant to TSCA
Section 6(a)] which addresses the protection of public
employees involved in the abatement of asbestos-con-
taining materials. The State university employees were
exposed during a building renovation and the univer-
sity was charged with violations of the asbestos work
practice standards. The university was charged with
failure to protect the workers from asbestos exposure
and failure to minimize the hazards involved during
removal of asbestos. A settlement agreement was
reached and under the terms of the signed Consent
Agreement and Final Order the university agreed,
without admitting liability, to undertake an extensive
program to provide asbestos information to the com-
munity and to the State of Idaho through the implem-
entation of an asbestos hotline.
U.S. v. USPCIf Inc.: A site inspection and document
review indicated that this facility in Utah failed to
adhere to all of the requirements of the approval issued
by the Agency under TSCA for the operation of a
commercial PCB dechlorination unit. The 57 count
complaint alleged the improper processing of PCBs for
55 separate batches, along with annual document vio-
lations for two years. The Agency found no evidence
that PCBs had been insufficiently processed or released
to the environment, but the violations were viewed as
serious because such facilities are permitted by the
Agency and must therefore be held to a strict standard
of care. The case was settled for a total expenditure by
respondents of $450,000, including a $175,000 cash
penalty, the purchase of a $118,000 emergency response
vehicle for Tooele County, UT, and the planning and
operation of household hazardous waste collection
days in the state.
Criminal Enforcement - All Statutes
U.S. v. Aicangelo. et al.: On April 14,1989, James and
Charles Arcangelo were sentenced as a result of guilty
pleas entered on charges of violation of the Racketeer
Influence and Corrupt Organizations Act (RICO) stat-
ute and RCRA concerning the disposal of mercury at a
demolition and salvage operation in North Haven, CT.
Charles received a 10-year prison term, and James was
sentenced to five years in prison on the RICO charge.
Both men were ordered to pay $500,000 in restitution
and forfeiture. This case represents the first EPA joint
investigation with the Department of Justice Organ-
ized Crime Strike Force.
U.S. v. Ashland Oil Co.: Ashland Oil Co. was sen-
tenced on March 9, 1989, to a criminal fine of $2.25
million, a special assessment of $100, and costs of
prosecution for negligently causing a catastrophic oil
spill on the Monongahela River in January 1988. This
represents the largest criminal fine ever imposed for an
oil spill and the second largest fine in the history of
environmental criminal enforcement.
U.S. v. Ballard Shipping Co. Ltd., and lakovos
Georgudis: On September 29,1989, Ballard Shipping
Co. Ltd., owner of the oil tanker M/T World Prodigy,
and the ship captain, lakovos Georgudis, were sen-
tenced as a result of the oil spill caused when the ship
grounded on Breton Reef off the coast of Newport, RI.
The company was ordered to pay a fine of $1 million, of
which one half would be paid to two State of Rhode
Island environmental funds. Georgudis was ordered
to pay a fine of $10,000. The two had previously pled
guilty to a one-count information charging a violation
of the Clean Water Act.
U.S. v. Bridgeport Wrecking Co.. and Thomas Ca-
pozziello: On March 1, 1989, a federal grand jury
indicted Bridgeport Wrecking Co. Inc., and its presi-
dent, Thomas Capozziello, on four counts of violating
the Asbestos NESHAP standards of the Clean Air Act
during their demolition of the Knudsen Dairy in North
Haven, CT. Bridgeport Wrecking Co., Inc. had
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FY1989 Enforcement Accomplishments Report
previously been one of the defendants in a civil suit for
similar violations at a housing project in Bridgeport.
U.S. v. Carolan. Carolan. Thomas. Gosch and Hayes:
On March 14,1989, Walter C. Carolan, James B. Caro-
lan, Dwight Thomas, Christopher B. Gosch, and Sharon
Hayes were indicted for conspiring to defraud EPA,
submitting false documents to EPA, and mail fraud as
well as for TSCA PCB marking, storage and disposal
violations. On July 14, 1989, both Sharon Hayes and
Christopher B. Gosch pled guilty to conspiring to de-
fraud EPA in violation of 18 U.S.C. Section 371. As part
of the plea arrangement, they have agreed to testify
against the remaining defendants at a subsequent trial
should there be one. Sentencing of these individuals
will be after the trial. In Sharon Hayes' plea arrange-
ment, the Government will not oppose a recommenda-
tion for probation, while in the Chris Gosch plea the
Government will make no recommendation as to the
sentencing. This case involves a major Superfund site
in Holden, MO, created when a PCB treatment and
disposal facility failed to comply with TSCA and ceased
business. One former employee, the general manager,
pled guilty to one felony count of conspiracy to defraud
the government.
U.S. v. Cuyahoga Wrecking: On December 21,1988,
Joseph Grossi, the last of five corporate officials charged
in the Cuyahoga Wrecking C A A case was sentenced to
24 months probation and 250 hours of community
service for his role in the knowing violation of the
asbestos demolition regulations. On August 1,1988,
due to both his minimal culpability vis-a-vis the other
defendants and his cooperation with the investigation,
Grossi was allowed to plead guilty to a one-count CA A
misdemeanor criminal information charging a willful
violation of the NESH AP asbestos regulations. The case
arose from Cuyahoga's illegal operations connected
with the demolition of a Kaiser steel plant in Fontana,
CA.
Grossi and the other four individual defendants
were former corporate of ficials of the Cuyahoga Wreck-
ing Co. of Great Neck, NY, which had pled guilty to
related CAA and CERCLA charges. The other four
individual defendants were James Abbajay, in charge
of demolition operations from July 1985 to September
1986, Leonard Capizzi, in charge of demolition opera-
tions from March 1983 to January 1985, Chester Francis
Reiss, Sr., in charge of demolition operations from
February 1985 to June 1985, and Robert Samuel Torok,
who supervised demolition operations from July 1984
to September 1986. On December 5, Capizzi received a
total sentence of 18 months imprisonment (one year for
conspiracy to violate the CAA, in violation of 18 U.S.C.
Section 371, and six months for substanti veCAA counts).
This was the longest term of imprisonment ever given
for federal charges arising from violations of CAA
regulations covering asbestos demolition activity.
Torok and Reiss were each sentenced to six months
imprisonment and Abbajay received a two-month
sentence of imprisonment on the conspiracy count.
Lastly, Cuyahoga itself pled guilty to one felony count
which charged the company with willfully making
false statements to the government, in violation of 18
U.S.C. Section 1001, in describing the procedures it
utilized in removing asbestos. Cuyahoga, which has
now filed for bankruptcy, was also sentenced on De-
cember 5,1988, to a fine totaling $250,000.
U.S. v. PAR Construction. Inc. and Maurice Dieyette:
Following the first criminal trial in the nation for the
illegal removal of asbestos, a hazardous air pollutant
under the CAA and a hazardous substance under
CERCLA, Maurice Dieyette was sentenced to 90 days
incarceration and DAR Construction, Inc., was fined
$50,000 on April 7,1989, for their misdemeanor viola-
tions of the Clean Air Act.
On December 22, 1988, a jury in the Southern
District of New York convicted Dieyette on three sepa-
rate CAA counts, with one count for releasing asbestos
into the air, and two counts of using unlawful tech-
niques for removing asbestos. DAR Construction, Inc.,
a New Jersey asbestos removal firm, had hired Dieyette
to perform this asbestos removal job and had pled
guilty on December 5, 1988, to three counts of using
unlawful techniques to remove and dispose of asbes-
tos. The charges involved Dieyette's supervision of
DAR's illegal removal of asbestos from a New York
City Department of Sanitation garage in Manhattan in
1986. On January 28,1988, a grand jury in Manhattan
indicted DAR Construction, and Dieyette, on eight
misdemeanor and felony counts. Five counts charged
CAA violations of the work place standards for asbes-
tos removal, one count charged CERCLA failure to
report the release of a hazardous substance (asbestos),
and the last two counts charged Dieyette alone with
obstruction of justice.
The indictment alleged that DAR was the low
bidder on a New York City Sanitation Department
contract to remove 260 linear feet of friable asbestos
insulation material at a Bronx garage. Dieyette, as fore-
man, allegedly did not provide workers with protec-
tive clothing or respirators, and in fact permitted re-
moval activities that included having workers climb on
pipes from which they were stripping asbestos mate-
rial. After pulling the insulation off, the workers alleg-
edly dropped the material 25 feet to the ground, gener-
ating clouds of asbestos dust. After New York City
Health Department inspectors shut down the project,
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FY1989 Enforcement Accomplishments Report
Dieyette allegedly had the asbestos-laden unmarked
bags disposed of in a dumpster outside of a Bronx
apartment building. In addition to these acts, the
indictment alleged that after learning of the grand jury
investigation, Dieyette attempted to suborn perjury of
a grand jury witness. EPA's criminal and civil pro-
grams have targeted the illegal removal and disposal of
asbestos as a priority area, and since Dieyette's and
DAR's convictions numerous other asbestos removal
contractors have been either indicted, convicted, or
both.
U.S. v. Dee, Lentz, and Gepp: In {he first EPA criminal
case resulting in convictions of federal employees for
environmental misconduct, on May 10,1989, a Federal
District Court judge in Baltimore, MD, sentenced Wil-
liam Dee, Robert Lenz, and Carl Gepp to three years
probation, 1,000 hours community service, and $50 in
court costs each. The three had committed knowing
violations of hazardous waste management require-
ments at a chemical weapons manufacturing plant at
the U.S. Army facility in Aberdeen Proving Grounds in
Maryland. These sentences have sent a strong message
that Federal employees are as liable for environmental
crimes as employees of private corporations and can-
not avoid criminal liability by claiming sovereign
immunity.
The defendants, all responsible civilian man-
agement personnel at the facility, were charged on June
28,1988, in a five-count indictment alleging violations
occurring between 1983 and 1986 of the hazardous
waste storage, treatment and disposal requirements
under RCRA, as well as the negligent discharge of
pollutants in violation of the CWA. All of the RCRA
charges rested on evidence that the defendants had
been repeatedly warned by Army safety inspectors and
consultants that improper storage and handling of
chemicals was occurring at the facility. Notwithstand-
ing the knowledge that a contaminant dike surround-
ing a tank of sulfuric acid was deteriorating (which
ultimately released hundreds of gallons of the acid into
a nearby creek when the tank burst and the contain-
ment dike failed) and the receipt of written reports
detailinghazardousconditions posed by leakingdrums
of incompatible hazardous chemicals, the defendants
chose to assign a low priority to environmental compli-
ance. Before trial, the defendants sought to dismiss the
RCRA counts. They claimed that because that statute
does not include the United States in its definition of
"persons" subject to RCRA's criminal sanctions, and
because they acted within the scope of their official
duties when they allegedly violated RCRA, they were
acting as the United States and not as individuals.
Consequently, they claimed, they enjoyed sovereign
immunity from criminal prosecution. The District Court
denied the defendants' motion to dismiss, and the
Fourth Circuit Court of Appeals rejected their appeal of
the lower court decision.
While federal managers will not be held crimi-
nally liable for environmental violations beyond their
control, the Aberdeen case has sent a clear message to
those managers that, like their private sector counter-
parts, they must take common-sense actions to insu-
late themselves from criminal liability. Such actions
include diligently seeking out violations, providing
adequate staff supervision, requesting adequate re-
sources necessary for compliance with the law, and
advising superiors and environmental agencies of
problems as soon as they arise. The Aberdeen defen-
dants did not take such measures.
U.S. v. Charles A. Donohoo, Jr.; On September 28,
1989, in United States District Court in Louisville, KY,
Charles Donohoo was convicted of one count of violat-
ing the NESHAP requirements of the CAA and one
count of violating the reporting requirement of CER-
CLA. These violations resulted from Donohoo's ac-
tions in removing asbestos during his demolition of a
building in Louisville. This was a joint case with the
Federal Bureau of Investigation. The CERCLA convic-
tion is the first felony conviction under that statute.
U.S. v. Fisher's RPM Electric: On September 27,1989,
a federal grand jury returned a five-count felony indict-
ment against Rodney Ray Fisher and his company,
Fisher RPM Electric Motors, Inc. (RPM), which is in the
business of cleaning and refurbishing motors. Strong
solvent mixtures are used in that process. Two Clean
Water Act counts allege that the defendants knowingly
discharged pollutants without a permit into a creek that
feeds into an Oregon lake. Three RCRA unlawful
disposal counts allege that both defendants disposed of
solvent wastes, including toluene, a listed RCRA haz-
ardous waste, onto a lot in Albany, OR, the town in
which RPM is located. Four of the five counts allege
offenses which occurred after the November 1987effec-
tive date of the U.S. Sentencing Guidelines. This case
was a joint FBI-EPA criminal investigation and is the
first environmental criminal prosecution to bepursued
by the United States Attorney's Off ice for Oregon since
the Agency's criminal enforcement program was estab-
lished.
U.S. v. Stephen L. Johnson and Colony Cave Mobile
Home Park: In November 1988, Mr. Johnson, in direct
contravention of a state directive, breached the dike of
a sewage lagoon at his mobile home park and allowed
its contents to drain out. Stephen L. Johnson was fined
$22,500 and sentenced to 5 months in jail, and 1 year of
supervised release to include 5 months of community
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custody. Colony Cove Mobile Home was fined $35,000.
U.S. v. Odfjell Westfal-Larsen (USA), Inc.. Baytank,
Inc.. et al.; On November 18, 1988, a jury sitting in
Houston, TX, found Baytank (Houston), Inc., Haavar
Nordberg, Executive Vice-President of the Norwegian
company that owns Baytank, Roy Johnson, Operations
Manager of Baytank, and Donald X. Gore, the em-
ployee responsible for environmental matters in
Baytank, guilty of violating various environmental laws
and regulations.
Specifically, Baytank, Nordberg, and Johnson
were found guilty of knowingly storing hazardous
wastes in drums at the Baytank facility without interim
status or a permit, in violation of 42 U.S. Subsection
6928(d)(2)( A), a felony, as well as willfully discharging,
on 187 different occasions, pollutants from a point
source into navigable waters, in violation of 33 U.S.C.
Subsection 1319(c)(l), a misdemeanor. Baytank,
Nordberg, Johnson and Gore were found guilty of
willfully and negligently violating an NPDES Permit
condition by failing to file Discharge Monitoring Re-
ports with the EPA (Baytank and Nordberg: 10 occa-
sions negligently, 5 willfully. Johnson: 7 occasions
negligently, 1 willfully. Gore: 5 occasions willfully) in
violation of 33 U.S.C. Subsection 1319(c)(l), a misde-
meanor. Gore was found guilty of negligently dis-
charging, on 64 different occasions, pollutants from a
point source into navigable waters in violation of 33
U.S.C. Subsection 1319(c)(l), a misdemeanor. Finally,
Baytank and Johnson were convicted of failing to notify
immediately the National Response Center of a release
of a reportable quantity of a hazardous substance in
violation of 42 U.S.C. Subsection 9306(b)(3), a misde-
meanor. All other charges resulted in either a dismissal
or an acquittal.
On January 13, 1989, a hearing was held on a
routine motion for judgment of acquittal and a motion
for a new trial by defense counsel made pursuant to
Rule 29 of the Federal Rules of Criminal Procedure. The
trial judge ruled that an order of acquittal be entered for
the individual defendants regarding the two RCRA
counts, and a new trial be ordered concerning the CW A
and CERCLA counts. This left the two RCRA counts
against Baytank as the remaining conviction in this
case. The Department of Justice has filed a notice of
appeal of the orders.
On July 13, 1989, the U.S. District Judge ap-
proved the community service plan that Baytank
Houston was required to submit as a condition of
probation. On January 26,1989, the Judge had imposed
upon Baytank, as a special condition of probation for
one of two RCRA counts for which Baytank was found
guilty (42 U.S.C. Subsection 6928(d)(2)(A), the require-
ment that it file with the court a plan for the betterment
and protection of the environment.
U.S. v. Marine Shale Processors, Inc.: On July 24,1989,
the U.S. District Court for the Western District of Lou-
isiana, Lafayette-Opelousas Division, accepted a guilty
plea by Marine Shale Processors, Inc. (MSP). Under the
agreement, MSP pled guilty to one felony RCRA charge
for the unpermitted storage of hazardous waste in
violation of 42 U.S.C. Subsection 6928(d)(A) and two
misdemeanor counts under the Refuse Act of 1899 and
the Rivers and Harbors Act of 1899. Also under the
terms of the plea, MSP will pay a fine of $1 million.
MSP, located in Amelia, LA, operates a large rotary kiln
in which it burns hazardous wastes to produce an
"aggregate" product. Because of its purported recy-
cling activity, MSP claims RCRA-exempt recycler status.
The RCRA count to which MSP pled alleges the
knowing unpermitted storage of K001 wastes (wood
treatment sludges); the Refuse Act count alleges the
discharge of contaminated run-off water, waste chemi-
cal, and residues from the burning of hazardous waste
into Bayou Boeuf; and the Rivers and Harbors Act
count alleges the unpermitted creation of an obstruc-
tion by MSP's having sunk a hazardous waste-laden
barge in the Bayou.
U.S. v. Ocean Spray Cranberries. Inc.; On December
20,1989, in a Clean Water Act case, Ocean Spray Cran-
berries, Inc., pled guilty to numerous criminal charges
that the company illegally discharged process waste
over a five-year period into the public sewer system of
Middleborough, MA. The company was ordered to
pay a fine of $400,000 and buy a sludge press for the
town's sewage treatment plant. (For further informa-
tion see the FY 1988 Enforcement Accomplishments
Report.)
U.S. v. Olympus Terrace: Onjuly21,1989,theassistant
manager of the Olympus Terrace Sewer District, Law-
rence Ostler, was fined $5,000 and placed on three
years' probation for dumping sewage sludge into Puget
Sound. He was also ordered to perform 250 hours of
community service. In April, Ostler and the sewer
district had pled guilty to misdemeanor violations of
the CWA. The district was ordered to pay a fine of
$25,000. The case involved illegal discharges of un-
treated sewage sludge directly into Puget Sound. The
discharges were apparently made when the plant's
effluent exceeded the limitations established by the
facility's NPDES permit. The expense of legally trans-
porting excess sludge off-site was thereby avoided by
this practice. The plant was placed under surveillance
by EPA's Office of Criminal Investigation and several
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FY1989 Enforcement Accomplishments Report
occurrences of such discharges were observed and
documented by criminal investigators. This prompted
the execution of a search warrant at the plant. Records,
logs, and samples were confiscated at this time. As a
result of this case, the sewer district now trucks its
sludge to another treatment plant in Seattle. The State
of Washington also revoked Ostler's Class II Wastewa-
ter Treatment Operator's license.
U.S.v.Pozsgai: On July 13,1989, in the second of EPA '$
criminal wetlands filling cases to yield a significant
term of incarceration, defendant John Pozsgai was
sentenced to serve 27 months in prison for knowingly
filling a wetland near the Delaware River without a
Corps of Engineers Section 404 permit. Knowing that a
Corps of Engineers permit is required to engage in
wetland fill activity, Pozsgai nevertheless cleared trees,
allowed several companies to dump construction de-
bris at the site, and had a bulldozer spread fill dirt into
federally protected wetlands.
Pozsgai owned a truck repair business and had
bought the wetland property to expand his business.
Prior to purchasing the land, Pozsgai was advised by
several engineering firms that it was a wetland and
would require special permitting to fill it. After Pozsgai
commenced filling in the property, he was repeatedly
warned by the Corps of Engineers and EPA, as well as
State and local officials, to cease the illegal activity. To
that end the Corps sought and received in August,
1988, a temporary restraining order (TRO) command-
ing Pozsgai to cease fill activities. Pozsgai was held in
contempt in September for violating the TRO, based in
part on video tape evidence of ongoing illegal fill
activity collected by EPA Special Agents with the coop-
eration of Pozsgai's neighbors.
Finally, Pozsgai was indicted on September 29,
1988 on 40 felony CWA counts for his unpermitted
wetlands fill activity. On December 30, after a four-day
trial in Philadelphia, the jury found Pozsgai guil ty of all
charges. Because 24 of the 40 counts alleged activities
occurring after November 1,1987, which is the effective
date for the Sentencing Reform Act of 1984, Pozsgai was
sentenced to serve 27 months (per count, concurrently)
in prison. That statute, enacted to ensure consistency in
federal sentencing of crimes committed after Novem-
ber 1,1987, requires federal judges to apply a sentence
to individual defendants within a fixed range derived
by the Guidelines' matrix calculation. Any departure
from the Guidelines requires a judge to state reasons for
applying a different sentence on the record and is
appealable by the Government. For the violations
occurring before the guidelines were effective, Pozsgai
was sentenced to three years imprisonment (14 counts,
concurrent) and five years probation (one count). A
condition of probation is to restore completely the
wetland area. Pozsgai was also sentenced to pay a fine
of $200,000 ($5,000 per count) and a special assessment
of $2,000 ($50 per count). This case is representative of
EPA's ongoing efforts to preserve critical wetland
habitats and of the seriousness with which Federal
judges are treating such criminal environmental viola-
tions as unpermitted wetlands filling.
U.S. v. Progressive Oil Co.: On September 25,1988,
Progressive Oil Company of Gloucester, MA, pled nolo
contendere to a one-count indictment for a misde-
meanor violation of the CWA provision prohibiting the
negligent discharge of a pollutant into a sewer system
that a reasonable person should have known could
cause personal injury or property damage. That indict-
ment, filed on November 10,1988, was the first filed
under that provision enacted by the Water Quality Act
of 1987. The Court accepted the nolo plea despite
vigorous objections by the Government. In June 1989,
the Court had refused a similar plea offer by Progres-
sive.
The indictment alleged that on August 19,1988,
an officer of Progressive Oil supervised the pumping of
water-contaminated gasoline down a drain on the
company's property, which connected with the town of
Gloucester's sewer system. Shortly after the pumping
operation, an explosion occurred, causing manhole
covers to be hurled into the air, cracking foundations,
and forcing an evacuation of downtown Gloucester.
Under Progressive's plea, it faces a fine of not less than
$2,500 nor more than $25,000. However, because Pro-
gressive pled nolo contendere, its plea will have no
collateral civil impact as res judicata. No sentencing
date has been set.
U.S. v. Seawall Construction: On August 18, 1989,
Sherman Smith, owner of Seawall Construction Com-
pany, pled guilty, under a plea agreement, to one River
and Harbors Act misdemeanor count which is punish-
able by imprisonment of up to one year and a $100,000
penalty. This will be the first sentence handed down in
the Western District of Washington under the new
federal sentencing guidelines. Smith and employees
under his direction routinely pumped oily bilge water
from barges and other vessels into surrounding water
and applied dishwashing detergents to dissipate the
resultant oily sheen. The arrest was made after Smith
ignored repeated admonitionsagainst illegal discharges
of oily bilge water into Lake Washington and Puget
Sound.
U.S. v. John Taylor and Taylor Laboratories. Inc.; On
August 14,1989, John Taylor and Taylor Laboratories
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FY1989 Enforcement Accomplishments Report
entered guilty pleas in U.S. District Court in Rome, G A,
to five counts of an eight-count RCRA indictment as
well as to a two-count RCRA information that had
originally been filed in the Eastern District of Tennes-
see. In accordance with a plea agreement, Taylor
allowed the Tennessee case to be consolidated with the
Georgia case. The counts to which Taylor and his
company pled guilty were the illegal transportation of
hazardous wastes to unpermitted sites and the failure
to manifest those shipments. The hazardous wastes
consisted of reagent chemicals that had been removed
from storage at Taylor Laboratories in Chattanooga,
TN, and dumped at one location in Tennessee and
several locations in Whitfield County, GA, in 1984 and
1985. The guilty pleas entered by Taylor and Taylor
Laboratories ended an investigation that had previ-
ously resulted in the conviction of four other individu-
als and one other corporation.
U.S. v. Valmont Industries. Inc.. Jack Richard Hawk.
and Duane S. Prorok: Valmont pled guilty to the two
felony CWA violations for intentionally tampering with
a monitoring device and falsification of discharge
monitoring reports. As part of the plea agreement,
Valmont is to be fined $450,000 with $300,000 sus-
pended pending satisfactory completion of two years
of probation. Valmont also made a public apology in
the newspapers. Jack Richard Hawk, Valmont's man-
ager of plant engineering pled guilty to one felony
count for falsification of discharge monitoring reports.
Duane S. Prorok, Valmont's production manager pled
guilty to a misdemeanor for tampering with a monitor-
ing device.
Contractor Listing
Under the Clean Air Act (CAA) Section 306 and
the Clean Water Act (CWA) Section 508 EPA has
authority to prevent facilities with continuing or recur-
ring violations of Federal water pollution or air pollu-
tion standards from receiving Federal contracts, grants
or loans. Facilities which are convicted of violating air
standards under CAA Section 113(c)(l), or water stan-
dards under CWA Section 309(c), are "automatically"
listed (referred to as Mandatory Listing). Facilities may
also be listed, at the discretion of the Assistant Admin-
istrator (OE), upon the recommendation of certain EPA
officials, a State Governor, or "a member of the public"
(referred to as Discretionary Listing). A facility may be
recommended for listing if there are continuing or
recurring violations of the CAA or CWA after one or
more enforcement actions have been brought against
the facility by EPA or a State enforcement agency.
Under Discretionary listing procedures, the facility has
the right to an informal administrative proceeding.
J. Y. Arnold and Associates. Inc.. Central City, KY: On
July 25,1989, an EPA Case Examiner issued a 20 page
decision in this Listing Proceeding, which was the first
discretionary listing action against an asbestos demo-
lition contractor to go to a hearing. The Case Examiner
concluded, based on the evidence presented at the
hearing on May 2-3,1989, and in the record before him,
that a preponderance of the evidence showed that the
legal elements necessary for the proposed discretion-
ary listing were present: (1) there was a record of
continuing and recurring noncompliance with the Clean
Air Act standards for asbestos; (2) at the facility named
in the Notice of Proposed Listing, the J. Y. Arnold and
Associates business office in Central City, Kentucky;
and (3) EPA had taken the requisite enforcement action
by filing a civil complaint in Federal Court. J.Y. Arnold
then filed a request for review of the Case Examiner's
decision by the EPA Office of General Counsel. Subse-
quently, the Region and J.Y. Arnold reached agreement
on a settlement to EPA's civil judicial action against the
company. Under the settlement J.Y. Arnold will pay a
$17,500 penalty, require EPA-approved training for all
personnel, and report all the asbestos removal jobs the
company bids on. J.Y. Arnold signed the consent
decree on November 15,1989, which satisfied the Region
that the conditions which led to J.Y. Arnold's recurring
violation had ended. The Region consequently with-
drew its listing recommendation on November 30,
1989.
Ashland Petroleum: On August 7, 1989, the EPA
Assistant Administrator for Enforcement signed a
determination to conditionally remove Ashland's
Floreffe, PA, facility from the EPA List of Violating
Facilities. Ashland Petroleum Company's Floreffe
Terminal, in Floreffe, PA, was automatically placed on
the EPA List on March 9, 1989, when judgment was
entered on a plea of nolo con tend ere to one count of
violating the Clean Water Act (CWA). Ashland's crimi-
nal conviction arose from the oil spill which occurred
on January 2, 1988, when an oil storage tank at its
Floreffe Terminal collapsed suddenly, causing over
500,000 gallons of oil to escape the containment dikes
and spill into the Monangahela River.
Ashland's Floreffe Terminal has been
conditionally removed from the List "for so long as, and
on the condition that," Ashland continues to comply
with the soil remediation program provisions of the
Consent Decree lodged in District Court on July 6,1988,
and entered by the court on June 19,1989. This is EPA's
first use of conditional removal based on scheduled
corrective action. EPA's "Policy on Correcting the
Condition Giving Rise to Listing," issued October 8,
1987, allows a facility to be conditionally removed from
the List, based on scheduled correction if EPA
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FY1989 Enforcement Accomplishments Report
if EPA determines that future correction of the condi-
tion is assured by an "independently enforceable agree-
ment." If the facility fails to come into compliance
according to the agreed schedule, the EPA will, at its
sole discretion, place the facility back on the List based
on the original conviction.
Ashland was conditionally removed from the
List based on a determination that it was operating in
compliance with applicable Clean Water Act require-
ments and had satisfactorily completed all remedial
actions except for a soil remediation program which is
expected to be completed in the spring or summer of
1990.
Eagle-Picher Industries: On May 1,1989, EPA notified
Eagle-Picher Industries that EPA proposed to place
two facilities at its Electronics Division in Joplin, MO,
the Couples Plant and the Special Products Plant, on the
List of Violating Facilities due to continuing and recur-
ring violations of the Clean Water Act by both facilities.
Eagle-Picher, a major defense contractor, manufactures
commercial, automotive, aerospace and defense appli-
cation batteries. EPA has also filed a civil complaint
alleging that the two facilities are discharging zinc,
mercury, nickel, cadmium, chromium and other toxic
pollutants into the local sewer system and a nearby
creek in violation of wastewater pretreatment stan-
dards and permit requirements. These Discretionary
Listing actions against the two Eagle-Picher plants
were the first Discretionary Listing Actions under the
Clean Water Act since 1979, and the first ever under the
revised regulations issued in 1985. On July 20, 1989,
Eagle-Picher and EPA filed a joint motion before the
Case Examiner requesting a stay in the Listing Proceed-
ing because the parties had agreed to a settlement in
principle in the underlying judicial civil enforcement
action.
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V. Building and Maintaining a Strong National Enforcement Program
Program Development
Inspector Training and Development
In FY 1989, the EPA began full-scale implementation of the Inspector Training and Development
Program. The Agency met its goal of training 100% of all new inspectors and 60 State inspectors. The
program was initiated in FY1987 in response to the need for a cross-cutting basic inspector training course
to teach the fundamentals of conducting inspections to all Agency inspection and field investigation
personnel, as well as filling the need for more advanced media specific training. The Office of
Enforcement (OE), in cooperation with EPA Regional Offices and the Headquarters enforcement
programs, developed the curriculum for the training program to ensure that all Agency inspection
personnel are able to conduct technically sound inspections to enhance EPA's ability to determine source
compliance and support formal enforcement actions. EPA Order 3500.1 , signed on June 29,1988, made
mandatory the satisfactory completion of basic and program-specific inspector training before any EPA
employee may lead an EPA inspection unless the employee has otherwise been exempted based on
previous training or experience. Although the Order does not apply to persons employed by State and
Local agencies, these agencies are encouraged to establish similar structured programs and to avail
themselves of EPA training materials. (For further information contact OE's Office of Compliance
Analysis and Program Operations (OCAPO))
State/EPA Enforcement Agreements
The Policy Framework for the State/EPA Enforcement Agreements is the blueprint for EPA's
enforcement relationship with State enforcement programs. Each year the EPA Regional Offices and the
States negotiate enforcement agreements establishing clear oversight criteria for assessments of State and
EPA compliance and enforcement programs. The agreements also establish the criteria for direct Federal
enforcement in delegated States (including procedures for advance consultation and notification), and
they put into place procedures for State reporting of management information to EPA. The Policy
Framework clearly establishes Federal oversight of State civil penalty assessments. The Policy also
strongly encourages greater involvement by State Attorneys General in the enforcement agreements
process, communicating on priorities and case status, and planning resource needs. The FY 1989 State/EPA
Agreements process sought to improve Regional consistency in addressing areas covered by the
agreements, and reiterated the need for the EPA Regional Offices to reach an understanding with their
States on Federal facility compliance issues. (For further information contact OCAPO)
National Reports on FY 1989 EPA and State Performance
Timely and Appropriate Enforcement Response
The Timely and Appropriate Enforcement Response concept seeks to establish predictable
enforcement responses by both EPA and the States, with each media program defining timeframes for the
timely escalation of enforcement responses. Tracking of timeframes commences on the date the violation
is detected through to the date when formal enforcement action is initiated. The programs have also
defined what constitutes an appropriate formal enforcement response based on the nature of the
violation, including defining when the imposition of penalties or other sanctions is appropriate. Each
year OE compiles an end-of-year report which summarizes the performance by each of the media
programs. The report for FY 1989 will be available in March 1990. (For further information contact
OCAPO)
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Federal Penalty Practices
Each year EPA produces a comprehensive analysis of the financial penalties EPA obtained from
violators of environmental laws. The report contains an Agency-wide overview as well as national and
regional summaries for each program. The report also compares annual performance with historical
trends. The FY1989 report will be available in March 1990. (For further information contact OCAPO)
Summary of State-by-State Enforcement Activity for EPA and the States
Beginning with FY 1989, each year EPA will be assembling an end-of-year report which
summarizes quantitative indicators of EPA and State enforcement activities on a State-by-state basis.
The FY 1989 report is scheduled for publication in late February 1990. (For further information contact
OCAPO)
Federal Facilities
EPA Federal Facilities Compliance Strategy
In November 1988, the EPA Administrator signed and issued a new Federal Facilities Compliance
Strategy which establishes a comprehensive approach to achieving compliance at Federal facilities.
This document, also known as the "Yellow Book," provides the framework and guidelines for all EPA
programs to follow in their compliance and enforcement activities at Federal facilities. The Strategy
strives to reconcile EPA's dual responsibilities to provide technical assistance and advice to Federal
facilities pursuant to Executive Order No. 12088, and EPA's statutory authorities to take enforcement
actions for violations at Federal facilities in appropriate circumstances. The guidance sets forth the
enforcement response and dispute resolution procedures which EPA will follow when environmental
violations occur, and also outlines EPA's efforts to assist Federal agencies in achieving and maintaining
compliance at their facilities. (For further information contact OE's Office of Federal Activities
(OE/OFA).)
Environmental Auditing Program Design Guidelines for Federal Facilities
This document was issued in August 1989, and presents general guidelines to Federal agencies to
assist them in either establishing a new environmental auditing program or institutionalizing their
existing auditing activities into a comprehensive ongoing program. The guidelines should assist agencies
in determining key program elements such as audit frequency, media coverage, program scope, protocol
development, and auditor selections. (For further information contact OE/OFA.)
Generic Environmental Audit Protocol for Federal Facilities
This protocol was issued in August 1989, and provides guidance and detailed instructions for
qualified individuals to follow in conducting environmental audits at Federal facilities. The protocol
consists of step-by-step directions to auditors on what records must be reviewed, what physical features
must be inspected, who needs to be interviewed, and what questions need to be asked. (For further
information contact OE/OFA.)
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FY1989 Enforcement Accomplishments Report |
Clean Air Act
Guidance on Inclusion of Environmental Auditing Provisions
in Clean Air Act Settlements
On January 27, 1989, OE's Air Enforcement Division (OE-Air) and the Office of Air and Radiation's
Stationary Source Compliance Division (SSCD) jointly issued this guidance encouraging the use of
environmental auditing, when appropriate, in consent decrees resolving enforcement actions. An audit not
only discovers problems in compliance and in management systems, but also suggests permanent solutions
to prevent such problems from arising again. (For further information contact OE-Air or SSCD)
Revised Guidance Concerning Compliance By Use of Low Solvent Technology
in VOC Enforcement Cases
On February 8,1989, OE-Air and SSCD jointly distributed this policy establishing conditions under
which EPA may agree to consent decrees affording sources the option to comply by low solvent technology
(LSI) on a schedule exceeding ninety days from the filing of EPA's complaint. The policy, which revises
guidance issued August 7,1986, also modifies guidance issued November 21,1986, regarding consent decree
schedules for add-on controls which may provide in the alternative for compliance by LST. (For further
information contact OE-Air or SSCD)
Interim Asbestos NESHAP Enforcement Guidance -- "Friable asbestos" \% by
Area or Volume vs. 1% by Weight
On April 18, 1989, OE-Air and SSCD issued the referenced memorandum attaching a study and
methodology to assist the regions in enforcing the asbestos NESHAP where issues arise concerning the
percentage of asbestos contained in samples used to support a case. (For further information contact
OE-Air or SSCD)
Guidance on Limiting Potential to Emit in New Source Permitting
On June 13, 1989, OE-Air and SSCD issued this guidance describing the conditions in construction
permits which can legally limit to minor levels a source's potential to emit. Such conditions, if
Federally enforceable, render a source not subject to Prevention of Significant Deterioration or
nonattainment New Source Review requirements. The guidance also discusses enforcement procedures
applicable when a permitting agency does not adhere to the guidance. (For further information contact
OE-Air or SSCD)
Final Asbestos Demolition and Renovation Civil Penalty Policy
On August 22, 1989, OE and SSCD jointly issued a new appendix to the Clean Air Act Civil Penalty
Policy. Entitled "Appendix III: Asbestos Demolition and Renovation Civil Penalty Policy," this
appendix is used to determine the gravity component and economic benefit of the civil penalty settlement
amount for cases enforcing the asbestos NESHAP, 40 C.F.R. Part 61, Subpart M. (For further information
contact OE-Air or SSCD)
Revised Guidance on Enforcement of State Implementation Plan Violations
Involving Proposed SIP Revisions
On August 29, 1989, OE-Air and SSCD issued this revised guidance to alleviate uncertainty
affecting decisions to initiate enforcement actions against sources with pending SIP revisions,
particularly sources of volatile organic compounds. The guidance reviews and updates case law regarding
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? FY1989 Enforcement Accomplishments Report
^
the effect on enforcement of the pendency of a SIP revision. (For further information contact OE-Air or
SSCD)
Final Penalty Policy for New Residential Wood Heaters. 40 C.F.R. Part 60.
Subpart AAA
On September 14,1989, OE and SSCD issued a new appendix to the Clean Air Act Civil Penalty
Policy. Entitled "Appendix VII: Residential Wood Heaters," this appendix is used to determine the
gravity component of the civil penalty settlement amount for cases enforcing the New Source Performance
Standard for residential wood heaters, 40 C.F.R. Part 60, Subpart AAA. (For further information contact
OE-Air or SSCD)
Final Compliance Monitoring Strategy for the Stratospheric Ozone Rule
On April 18, 1989, SSCD issued this document which was designed as a means of introducing the
Regional Offices to the elements of the Stratospheric Ozone Rule (including the Montreal Protocol), and
for establishing the roles of Headquarters and Regional Offices in implementing and monitoring
compliance with the rule. (For further information contact SSCD)
Gasoline Volatility Enforcement Program
As part of the Agency's efforts reduce emissions of VOCs that contribute to the formation of ozone,
regulations to control the summertime volatility of gasoline were promulgated in March 1989. Subsequent
to the promulgation of the regulations, EPA developed and put into effect an enforcement effort which
targeted inspections at more than 4,000 gasoline refiners, terminals, and retail outlets nationwide. The
result of this effort was an overall industry compliance rate of 95%, reductions in average volatility
levels of 1.0 pound per square inch (a 10% reduction), and a 17.5% reductions in emissions of non-methane
hydrocarbons. Notices of violation have been issued to violators of this standard. (For further
information contact OAR's Office of Mobile Sources (OMS))
Clean Air Act Enforcement Policy for Section 203 Tampering Violations
In March 1989, the Office of Mobile Sources issued the final tampering civil penalty document
which establishes the appropriate penalty amounts for violations of Section 203. Penalty amounts are
based upon the vehicle emission consequences of tampering, as well as the history of violations and the
size of the business. (For further information contact OMS)
Clean Water Act
Pretreatment Enforcement Initiative
In February, 1989, EPA initiated a nationally coordinated enforcement effort to address the problem
of the failure of many POTWs to adequately implement their approved pretreatment programs. Ninety
percent of these programs have been approved for three years or more, and EPA data suggests that nearly
one out of every two programs is failing to adequately implement at least one significant component of its
pretreatment program. Regions and approved States were asked to identify candidates for either
administrative penalty actions or civil judicial actions, and to take these actions within a specific
timeframe. The enforcement initiative resulted in actions against 61 cities, 19 of which were civil
judicial actions. All 10 Regions were represented in the initiative as were five approved States. A
national press conference by the Administrator and the Attorney General was held on the date of filing of
major cases against Detroit, Phoenix, El Paso and San Antonio. This was the first such joint press
conference ever held. (For further information contact the Office of Water Enforcement and Permits
(OWED)
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FY 1989 Enforcement Accomplishments Report
FY 1990 Guidance for Reporting and Evaluating Publicly Owned Treatment
Works Noncompliance with Fretreatment Implementation Requirements
On September 27, 1989, the Office of Water Enforcement and Permits issued guidance for FY 1990
which revised the definition of reportable noncompliance for POTW implementation of approved
pretreatment programs and established a new definition of significant noncompliance. This guidance
replaces guidance of the same title issued in September 1987, and will be used by Regions and approved
Pretreatment States to determine which POTWs should be listed on the Quarterly Noncompliance Report
for failure to implement an approved pretreatment program. In addition, it defines "timely and
appropriate" action against POTWs which failed to implement. The definition adopted is the same as
for the National Pollution Discharge Elimination System program. (For fui her information contact the
OWED
Guidance for Developing Control Authority Enforcement Response Flans
In September, 1989, EPA issued guidance designed to assist POTWs which have approved
pretreatment programs with the development of Enforcement Response Plans. Regulations promulgated
in January, 1989, required POTWs to develop such plans. The guidance describes what these plans should
cover, provides suggested timeframes for enforcement responses, and offers a model enforcement response
guide. The guidance will be supplemented with workshops conducted by EPA in the Regions and the
States in FY 1990.
The Compliance Monitoring and Enforcement Strategy for Toxics Control was issued on January 25,
1989, in conjunction with Basic Permitting Principles for Whole-Effluent Toxicity. These two documents
establish basic guidelines for whole-effluent toxicity control and reduction through the NPDES
permitting and enforcement program. These documents are based on the 1984 Policy for the Development
of Water Quality-Based Permit Limitations which stated, in part, "...in order to meet water quality
standards, the Environmental Protection Agency will use an integrated strategy consisting of both
biological and chemical methods to address toxic and nonconventional pollutants from industrial and
municipal sources ... EPA and the States will use biological techniques ... to assess toxicity impacts and
human health hazards based on the general standard of 'no toxic materials in toxic amounts.'" The
Strategy integrates the compliance assessment and enforcement of whole-effluent toxicity limitations
and related requirements with the existing NPDES program. The major goal of the Strategy is to ensure
timely compliance with permit requirements through prompt compliance review and enforcement
response. (For further information contact OWEP)
Resource Conservation and Recovery Act
Medical Waste Enforcement Strategy
On March 1, 1989, the Office of Waste Programs Enforcement's RCRA Enforcement Division issued
the Medical Waste Enforcement Strategy. The purpose of the Strategy is to assist Regions and States in
implementing the two-year Medical Waste Tracking Demonstration Program. The Strategy provides
clarification of EPA and State roles, as well as guidelines for targeting inspections and prioritizing
enforcement activities. The Medical Waste Enforcement Strategy is not a prescriptive enforcement
strategy in that EPA is not requiring a specified percentage of inspections, nor are there required violation
classification schemes and enforcement response timeframes. The Strategy stresses the use of creative
methods of targeting inspections as well as the exploration and use of innovative types of enforcement.
EPA's Region II office implemented a Medical Waste Tracking Demonstration Program during FY
1989, and conducted over 240 inspections of medical waste handlers along the East Coast, including
generators and transporters as well as disposal facilities. Region II issued five administrative
complaints for violations of the Medical Waste Tracking Act (four transporters and one generator) and
proposed the assessment of a total of $229,000 in penalties. (For further information contact OE-Waste or
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Enforcement Accomplishments Report
the Office of Waste Programs Enforcement (OWPE) in the Office of Solid Waste and Emergency Response
(OSWER))
Section 3Q08(h) Model Unilateral Order
The Model Order is intended to be used as a guide to be used by the Regions during the development
of unilateral orders. There is an attachment to the guidance which distinguishes the Model Unilateral
Order from the Model Consent Order. (For further information contact OE-Waste or OWPE)
RCRA Inspector Institute
The RCRA Inspector Institute was initiated with a Memorandum of Understanding between the
RCRA Enforcement Division and the National Enforcement Investigations Center (NEIC). The MOU
established the purpose of the institute and the responsibilities of both the RCRA Enforcement Division
and NEIC. Students taking the course have included EPA regional inspectors, state inspectors and
various federal agencies responsible for RCRA compliance at their facilities. (For further information
contact OWPE)
Hazardous Waste Incinerator Inspection Manual
In April, 1989, the Office of Solid Waste and Emergency Response issued this guidance for use by
EPA and State enforcement staffs. The manual was developed as both a field guide and a training
manual. The manual describes the technical aspects of incinerator design (waste feed systems, air
pollution control systems, process and emissions monitoring), regulations and permitting aspects,
inspection priorities, identifying and documenting potential violations, and special issues. The appendix
to the manual includes inspection checklists, example calculations, a draft model incinerator permit,
references, and other technical data required to conduct an incinerator inspection. (For further
information contact OWPE)
Hazardous Waste Incinerator Inspection Workshop
The Hazardous Waste Incinerator Inspection training workshop presents information on the current
regulations and latest regulatory developments; serves as a resource for general overview of equipment
designs, functions, and operational problems, provides step-by-step inspection procedures and
preparation, and offers discussions on potential enforcement actions. (For further information contact
OWPE)
Land Disposal Restrictions Inspection Manual
In February, 1989, the Office of Solid Waste and Emergency Response issued this guidance for EPA
and State enforcement staffs. The manual describes the statutory and regulatory framework of the Land
Disposal Restrictions (LDR) program, discusses handler requirements and areas of enforcement concerns,
and explains how to plan and conduct inspections involving LDR compliance. The guidance includes
checklists to enable the inspector to organize information and determine compliance, and includes
technical appendices that aid in identifying LDR restricted wastes. (For further information contact
OWPE)
Land Disposal Restrictions First Third Enforcement Strategy
In January, 1989, the Office of Waste Programs Enforcement issued the final Enforcement Strategy
for the Land Disposal Restrictions (LDR) First Third Rule. The document was developed to assist the
Regions and States in implementing the LDR First Third rule. The strategy provides guidelines to use in
identifying the affected regulated universe, targeting inspections, and reviewing soft hammer
certifications/demonstrations submitted to EPA. The strategy is also intended to assure that the most
54
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FY 1989 Enforcement Accomplishments Report ^ _^
V**""*"^
'-1 PBJlt"
significant violations of the LDR program arc identified and the appropriate responses are pursued. (For
further information contact OE-Waste or OWPE)
Land Disposal Restrictions Summary of Requirements Handbook
In June, 1989, the Office of Solid Waste and Emergency Response issued this handbook that presents
a summary of the Land Disposal Restrictions (LDR) program. The handbook was developed to aid the
regulated community in understanding the basics of the LDR program. Over 20,000 copies of the handbook
have been printed and distributed to the EPA Regional offices. Trade associations will be contacted to
make it available to their members. (For further information contact OWPE)
Region III Pilot Program-Field Citations
In June, 1989, Region III, as part of the Merit Program with the State of West Virginia, began
development and will pilot a new RCRA enforcement initiative dealing with the issuance of field
citations for RCRA violations. In FY 1990, Region III and the State will establish the program and begin
to evaluate the merits and applicability of the program for other States. (For further information
contact OWPE)
Superfund
A Management Review of the Superfund Program
At his confirmation hearings, EPA Administrator William K. Reilly committed himself and the
Agency to undertake an in-depth self-critical review of the Superfund program. This review (commonly
referred to as the 90-Day Study) contains facts, observations and interpretations drawn from EPA staff
and from a variety of program observers from outside of the Agency. The final report indicated that EPA
must make substantially greater use of Superfund's enforcement tools if the program is to be successful.
The final report was followed by issuance of an implementation plan for putting into place the
recommendations of the review.
Among the specific enforcement recommendations contained in the report are: increased use of
unilateral administrative orders; full use of settlement tools; integrated enforcement and response
programs; development of an integrated timeline for enforcement and Fund-financed activities; creation
of enforcement support units; improved enforcement of information requests; closer oversight of private
party remedial investigation/feasibility studies (RI/FSs); maximized Regional flexibility in shifting
funds among sites to make the enforcement threat more credible; initiation of a cost recovery rulemaking;
development of an improved strategy for cost recovery for removal actions; and improved
intergovernmental coordination of CERCLA enforcement. (For further information contact OE-Waste or
OWPE)
Strategy for CERCLA Section 106 Unilateral RD/RA Enforcement
Along with providing a summary of CERCLA Section 106 Remedial Design/Remedial Action
(RD/RA) enforcement accomplishments in the first half of FY 1989, this document set EPA's strategy for
the balance of the year for enhancing CERCLA Section 106 enforcement. The strategy consists of attaining
numerical program goals for unilateral enforcement, controlling negotiation deadlines to obtain
potentially responsible party (PRP) conduct of RD/RAs, identifying candidates for unilateral
enforcement, and, when appropriate, making use of the Superfund contingent upon using enforcement
authority. (For further information contact OE-Waste or OWPE)
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* FY1989 Enforcement Accomplishments Report
CERCLA Section 104(e) Enforcement Initiative
This initiative makes enforcement of CERCLA Section 104(e) information requests a program
priority and offers Headquarters support to the Regions in developing and referring enforcement actions.
It discusses the various enforcement mechanisms available to the government to enforce these information
requests. (For further information contact OE-Waste or OWPE)
Settlement Information System
This is a database system that provides information on CERCLA remedial action settlements
reached after SARA. It is designed to give a comprehensive picture of these settlements and a means of
identifying needed follow-up action against non-settlers. The system includes information on the location
and type of site, key points in the negotiation and settlement process (e.g.. dates of notices to PRPs and
extensions of moratoriums), type and value of work to be done at the site, oversight costs, scope of the
settlement (e.g., whether past costs are included) and what settlement tools were used. In addition, the
system identifies needed post-settlement activities, especially with respect to non-settlors. (For further
information contact OWPE)
Revised Interim Gxiidance on Potentially Responsible Party(PRP) Participation
in Remedial Investigations and Feasibility Studies (RI/FS)
This document revises an interim guidance issued by OSWER on May 18,1988. It covers policy and
procedures governing the participation of PRPs in the development of RI/FSs under CERCLA, as amended
by SARA. It discusses: initiation of PRP searches and PRP notification; when PRPs may conduct the
RI/FS; development of enforceable RI/FS agreements; EPA's oversight of the RI/FS; and PRP
participation in Agency-financed RI/FS activities. (For further information contact OWPE)
Model Statement of Work for a Remedial Investigation and Feasibility Study
Conducted by Potentially Responsible Parties
This document provides PRPs direction in performing the tasks required for completing an RI/FS.
Generally, a statement of work is attached to an administrative order on consent for an RI/FS and
describes the tasks and deliverables required of the PRP. A draft statement of work generally is also
attached to a draft administrative order on consent when special notice for an RI/FS is issued. (For
further information contact OWPE)
RCRA National Priorities List (NFL) Policy
The revised RCRA National Priorities List (NPL) Policy was published in the Federal Register on
October 4, 1989, (54 FR 41000). This Federal Register notice added 23 RCRA facilities to the NPL and
dropped 27 RCRA facilities from the NPL. It also expanded and clarified the criteria for listing a RCRA
facility on the NPL. (For further information contact OWPE)
Enforcement Project Management Handbook
This handbook was prepared for EPA personnel, primarily Remedial Project Managers (RPM), for
planning negotiating, and managing PRP-lead actions. It describes the roles and responsibilities of the
RPM in identifying and communicating with PRPs; coordinating with the community, States and natural
resource trustees; negotiating for site cleanup; initiating administrative and judicial enforcement actions;
selecting site remedies; recovering EPA's cleanup costs; and overseeing PRP-lead response action. The
description of roles and responsibilities is based on the usual progression of events at an average site. (For
further information contact OWPE)
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FY 1989 Enforcement Accomplishments Report
f 5
V
FRF Search Supplemental Guidance for Sites in the Superfund Remedial
Program
This guidance supplements the PRP Search Manual issued in August 1987. It gives assistance in
conducting complex PRP searches and preparation of PRP search reports for sites in the Superfund
remedial program. It addresses, in part, findings in a PRP search program evaluation conducted by
OWPE. (For further information contact OWPE)
Interim Guidance on Administrative Records for Selection
of CERCLA Response Actions
This guidance covers the policy and procedures governing administrative records for selection of
response action under CERCLA, as amended by SARA. It addresses the purpose and scope of the record,
compiling and maintaining the record and the involvement of those outside EPA in establishing the
record. The guidance examines various types of documents that should be included in the administrative
record. (For further information contact OE-Waste or OWPE)
Guidance on CERCLA Section 106 Judicial Actions
This document provides criteria for selecting and initiating CERCLA Section 106 judicial actions
along with guidance on preparing Section 106 referrals. (For further information contact OE-Waste)
Guidance on Landowner Liability Under Section 107(a)(l) of CERCLA.
De Minimis Settlements Under Section 122(g)(l)(B) of CERCLA.
and Settlement with Prospective Purchases of Contaminated Property
This guidance covers EPA's policy on landowner liability and settlement with de minimis
landowners under CERCLA. In addition, it discusses settlement with prospective purchasers of
contaminated property. The guidance analyzes language in Sections 107(b)(3) and 101(35) of CERCLA,
which provide landowners certain defenses to CERCLA liability, and Section 122(g)(l)(B) of CERCLA,
which provides the Agency's authority for settlements with de minimis landowners. (For further
information contact OE-Waste)
A Guide to Chemical Use in Industry: Extremely Hazardous
Substance/Standard Industrial Classification (SIC) Code Crosswalks
for the Emergency Planning and Community Right-to-Know Act
This document identifies chemicals used by various industries by their Standard Industrial
Classification (SIC) codes. The crosswalks are based on information found in the National Air Toxic
Clearing House database. The information is used to help identify companies that likely have
notification and reporting obligations under the Emergency Planning and Community Right-to-Know Act
(EPCRA). (For further information contact OWPE)
Interim Strategy for Enforcement of Title III (EPCRA) and the
CERCLA 103 Notification Requirements
This document sets the interim strategy for enforcement of the Emergency Planning and Community
Right-to-Know Act (EPCRA) Sections 302-312 and CERCLA Section 103. EPA's focus is on cases involving
violations of the emergency notification provisions of EPCRA 304 and CERCLA 103. EPA will coordinate
with State Emergency Response Commissions (SERCs) to identify potential violations of EPCRA Sections
311 and 312, which concern reporting of chemical hazards and inventories and hazardous chemicals
stored at facilities. During FY 1989, eleven administrative cases were filed for violations of CERCLA
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FY1989 Enforcement Accomplishments Report
section 103 and EPCRA sections 304-312, with proposed penalties of $600,000. (For further information
contact OE-Waste or OWPE)
Enforcement of the Emergency Planning and Community Right-to-Know Act
This pamphlet provides tips to help State and local governments ensure that facilities covered by
certain sections of the Emergency Planning and Community Right-to-Know Act (EPCRA) are complying
with the law. The pamphlet outlines the enforcement authorities granted to citizens, local governments,
States, and EPA under Sections 304, 311 and 312 of EPCRA. (For further information contact OE-Waste or
OWPE)
On December 19, 1988, 25 civil administrative complaints were issued to facilities which had
failed to report their toxic chemical release information pursuant to Section 313 of EPCRA. The
complaints proposed over a million dollars in penalties. A second initiative was launched on June 26,
1988, against 42 facilities for the same type of violation. As a result of these initiatives, the program
received nationwide press coverage and the submission of 1,600 forms from over 400 facilities. At the end
of the fiscal year, 123 civil administrative cases had been issued. (For further information contact the
Office of Pesticides and Toxic Substances (OPTS) Office of Compliance Monitoring (OCM).)
Toxic Substances Control Act
Asbestos Hazard Emergency Response Act (AHERA)
Compliance Monitoring Strategy
The Asbestos Hazard Emergency Response Act (AHERA) directed EPA to promulgate regulations to
address asbestos problems in elementary and secondary schools. These regulations were issued on October
30, 1987, (52 FR 41846) and required that Local Education Agencies (LEAs) submit management plans
outlining how they would manage asbestos in their schools by October 12,1988, or request deferral of this
submission to May 9,1989. The compliance monitoring strategy, issued October 5,1988, targets inspections
at LEAs to assure that the LEAs and others (e.g.. contractors, management planners, laboratories, etc.)
who perform AHERA related activities have complied with the regulations. (For further information
contact the Office of Pesticides and Toxic Substances (OPTS) Office of Compliance Monitoring (OCM).)
AHERA Interim Final Enforcement Response Policy
On January 31, 1989, EPA issued the AHERA Interim Final Enforcement Response Policy which
establishes the enforcement mechanisms and civil penalty schedules for violations of AHERA. Local
Education Agencies (LEAs) that fail to conduct inspections or submit management plans, conduct a response
action without a management plan, or provide false information to the Governor concerning inspections or
deferral requests may be fined up to $5,000 per day of violation. Other persons (e^, contractors,
management planners, laboratories, etc.) may be assessed up to $25,000 per day of violation. The policy
also addresses other enforcement responses including issuance of Notices of Noncompliance, notification of
Governors, criminal referrals, and injunctive relief. (For further information contact OCM)
AHERA Notices of Noncompliance
As required under the AHERA, Local Education Agencies (LEAs), were required to submit
management plans outlining how they would manage asbestos in their schools by October 12, 1988, or
request a deferral of this submission to May 9, 1989. During FY 1989, the regional offices issued 6,960
Notices of Noncompliance (NON's), to LEAs for failure to submit their management plans by October 12,
1988. For those schools who fail to come into compliance once they are put on notice, a civil complaint is
issued. In FY 1989, approximately 50 complaints were issued to schools for failure to submit management
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FY 1989 Enforcement Accomplishments Report
0
plans. In addition, the Regions are currently issuing nearly 1,900 NON's to LEAs that have failed to
submit plans by the May 9, 1989 deferred deadline. At the close of FY 1989, based on information
provided by the States, approximately 6% of all LEAs nationwide had failed to submit management
plans. The States will provide EPA with a final status report on LEA compliance by December 31, 1989.
TSCA Asbestos Abatement Projects - Worker Protection Final Rule and
Compliance Monitoring Strategy
The current TSCA Section 6 rule became effective on March 27, 1987, and applies to all State and
local government employees who take part in asbestos |batcment work and who are not covered by the
OSHA Asbestos Standard. The compliance monitoring strategy, issued on November 14, 1988, targets
inspections on the basis of tips, complaints or referrals, and on sites where abatement is planned or
ongoing. During inspections, work practices and records are checked to determine compliance with
standards set by the rule. (For further information contact OCM)
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
FIFRA Compliance Monitoring Strategies for Cancellations and Suspensions
EPA issued compliance monitoring strategies to ensure compliance with pesticide cancellations and
conditional registrations that became effective in FY 1989. These included strategies for the cancellations
of chlordimeform, alar, dinoseb, and bromoxynil, and conditional registration of some bromoxynil products.
(For further information contact OCM)
Registration of Pesticides and Active Ingredient-Producing Establishment Reports
On September 8, 1988, EPA published in the Federal Register a final rule entitled "Registration of
Pesticide and Active Ingredient-Producing Establishments, Submission of Pesticide Reports," and on
August 9,1989, published in the Federal Register final confirmation of the effective date of this rule
(8/9/89). This rule expands current regulations for establishing registration and reporting requirements for
chemicals that are used both as pesticides and non-pesticides. These multi-use chemicals place the
responsibility for regulatory requirements on establishments that have actual or constructive knowledge
that their multi-use products are being used as pesticides. The rule eliminates the establishment
registration requirement for customer blending establishments. The rule also changes the date for filing
annual pesticide production reports from February 1 to March 1. (For further information contact OCM)
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FY 1989 Enforcement Accomplishments Report
VI. Media Specific Enforcement Performance:
Resolving Significant Noncompliance
The Strategic Targeted Activies for Results System (STARS)
EPA uses the Strategic Targeted Activities for Results System (STARS), [formerly SPMS], to ensure
that EPA and State managers identify the highest priority environmental problems and establish
accountability for resolving those problems. For enforcement, EPA and the States have identified a core
group of management indicators to track progress in each media including inspections, compliance rates,
identifying and resolving significant noncompliance (SNC), and numbers of civil and criminal case
referrals and administrative orders. During the Agency's annual operating guidance development process,
media compliance and enforcement programs identify a category(s) of violations determined to be the
most environmentally significant (i.e., SNC). At the beginning of each fiscal year, EPA and the States
review the known universe of SNCs and establish joint commitments to address them during the year.
The following program summaries indicate EPA and State progress in resolving SNC over the past
several years.
Air Enforcement - Stationary Sources
The air enforcement program has defined SNC as a violation of SIP requirements in areas not
attaining primary ambient air quality for the pollutant for which the source is in violation, violations of
NSPS regardless of location, and violations of NESHAPs. Also included are violations of PSD and
nonattainment new source review (FY1989) requirements. At the beginning of FY1989, EPA and the States
identified 696 violating facilities as SNC's, including 187 that had enforcement action initiated against
them prior to FY 1989. At year's end, 230 of the SNC's had been brought back into compliance, 97 were
subject to an enforceable compliance schedule, 243 were subject to a formal enforcement action, and 126
were unresolved. In addition to addressing those SNCs identified at the beginning of the Fiscal Year,
EPA and the States identified an additional 606 new significant violators, of which 250 were either
returned to compliance or were placed on an enforceable schedule leading to compliance.
Clean Air Act Enforcement
Resolving Significant Noncompliance
(Universe: SNCs at beginning of year)
800
700-
600-
500-
400
300-
200
100
FY84
FY85
FY86
FY87
FY88
FY89
D Pending at EOY E3 Addressed at EOY
Illustration 7
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7959 Enforcement Accomplishments Report
Clean Water Act Enforcement - NPDES Exceptions Report
The NPDES enforcement program has defined SNC to include violations of effluent limits,
reporting requirements, and/or violations of formal enforcement actions. Unlike the other Agency
enforcement programs, the NPDES program does not track SNC against a "fixed base" of SNC that is
established at the beginning of the year, rather, the program tracks SNCs on a quarterly "exceptions
list" that identifies those facilities that have been in SNC for two or more quarters without returning to
compliance or being addressed by a formal enforcement action.
During FY 1989, 514 facilities were reported on the SNC exceptions list including 255 facilities that
were unaddressed from the previous year and 259 facilities that appeared on the list for the first time
during the year. Of the 514 facilities on the exceptions list, 236 returned to compliance by the end of the
year, 181 were subject to a formal enforcement action, and 97 facilities remained to be addressed during
the upcoming year.
Clean Water Act Enforcement
Resolving Significant Noncompliance
(Universe: NPDES Exceptions List)
700
600
500
o
f 400
S 300 •
N
200
C
s 100
0
FY86
FY87
FY88
FY89
Pending at EOY E3 Addressed at EOY
Illustrations
Safe Drinking Water Act Enforcement
The Public Water System Supervision (PWSS) program identifies systems in significant
noncompliance for violations of the microbiological, turbidity, and total trihalomethane requirements on
a quarterly basis and tracks the actions taken against them. Those not returned to compliance or
addressed within six months are placed on the headquarters-maintained exceptions list and State and
federal action against these is tracked. In FY 1989, 334 new SNCs were identified of which 110 returned
to compliance, 71 had enforcement actions taken against them, and 153 became new exceptions. Of these
new exceptions and the 292 carried over from FY 1988, Regions and States addressed a total of 220.
The Underground Injection Control program tracks on an exceptions basis Class I, II, III, and V wells
that failed mechanical integrity, exceeded injection pressure, or received unpermitted injection material.
The exceptions list tracks wells that have been in SNC for more than two consecutive quarters without
being addressed by a formal enforcement action.
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FY1989 Enforcement Accomplishments Report
Toxic Substances Control Act (TSCA) Enforcement
TSCA defines SNC as violations of PCB disposal, manufacturing, processing,distribution, storage,
record-keeping, or marking. The definition also includes Asbestos-in-School violations, import
certification and recordkeeping violations, and testing or premanufacturing notification violations. At
the beginning of FY 1989, the Regions had 452 open SNC cases, and at year end 336 cases were closed and
116 remained open. During the year, EPA identified 264 new SNCs based on pre-FY 1989 inspections, with
204 having enforcement action taken. Based on FY 1989 inspections, EPA identified 328 new SNCs, with
193 having enforcement action taken.
TSCA Enforcement
Resolving Significant Noncompliance
(Universe: SNCs at the beginning of year)
800 1
700
600
° SCO
400
S 300
N
c 200
s 100
0
FY84
FY85
FY86
FY87
FY88
FY89
D Pending at EOY D Addressed at EOY
Illustration 9
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Enforcement
The FIFRA program has defined SNC to include pesticide misuse violations. Reflecting the major
role of the States in enforcing these types of violations, the EPA Regions and each of their States agree on
significant violation categories given patterns of use unique to each State, and they establish timeframes
for investigating and taking enforcement actions against these significant violations. In FY1989, EPA and
the States addressed 142 SNCs, and 26 SNCs were awaiting action at the end of the year.
FIFRA Enforcement
Resolving Significant Noncompliance
(Universe: SNCs at beginning of year)
350
# 300 j
o
' 200
S 15°
N 100
c
s 50
FY86
FY87
FY88
FY89
D Pending at EOY ES Addressed at EOY
Illustration 10
63
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v
:<*•
FY 1989 Enforcement Accomplishments Report
Superfund Enforcement
FY 1989 was an exceptional year for the Superfund enforcement program. The estimated work value
of the 218 settlements reached in FY 1989 for all types of response activities totaled over $1 billion - more
than a five-fold increase in the dollar value of cleanup work in enforcement settlements since the passage
of SARA in FY 1987, and nearly double the value of settlements reached in FY 1988. Furthermore, more
than 60% of remedial response actions initiated in FY 1989 were conducted by PRPs. The Agency
dramatically increased the level of Superfund judicial enforcement activity in FY 1989 with 153 civil
cases referred to DOJ primarily seeking injunctive relief for hazardous waste cleanup by responsible
parties, recovery from responsible parties of public money spent on site cleanup, or site access to perform
investigation or cleanup work. Remedial Action Consent Decrees were completed for 49 sites with a total
value of $620.5 million compared to 30 sites valued at $263 million in FY 1988. Under Section 107, the
Agency referred 78 cases seeking recovery of past costs valued at $136 million. In FY 1989, the program
also substantially increased the level of administrative enforcement activity by issuing 220
administrative orders including 22 Remedial Unilateral Administrative Orders with which PRPs have
complied valued at $174.6 million, compared to 14 such actions for a total of $12.4 million in FY 1988.
Value of PRP Response Settlements
(All Activities)
1200-,
1000-
800-
600-
400-
200-
218 Settlements
Valued at
$1.03 Billion
213 Settlements
Valued at
$578.3 Million
114 Settlements
Valued at
$175.2 Million
FY87
FY88
FY89
D Other Response Settlements ES RD/RA Settlements
Superfund Program Accomplishments
(All Activities)
200 ,
180 •
160
140
120
100.
8O
60
40
20
Total RI/FS
Total ROD
Total RD
Total RA
55 S
I
FY87 FY88 FY89
FY87 FY88 FY89
FY87FY88 FY89
FY87FY88 FY89
O EPA Selected Remedy D Fund-Lead Response H PRP-Lead Response
Illustration 11 & 12
64
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FY 1989 Enforcement Accomplishments Report
RCRA Enforcement
In FY 1989, the RCRA SNC definition focused on land disposal facilities (LDFs) with Class I
violations of groundwater monitoring requirements, financial responsibility requirements,
closure/post-closure requirements, or treatment and storage facilities with Class I violations of corrective
action compliance schedules. (Prior to FY 1986, the RCRA program defined SNC as a Class I violation by
a "major handler.") In FY 1989, the program identified 664 TSDFs as SNCs, and at the end of the year
78 had been returned to compliance, 300 were on compliance schedules, and 284 had an administrative or
judicial complaint pending against them.
RCRA Enforcement
Resolving Significant Noncompliance
(Universe = # of SNCs at beginning of year)
FY89
FY86
Pending at EOY E Initial action H On acceptable 0 Returned to
taken schedule Compliance
Illustration 13
65
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FY1989 Enforcement Accomplishments Report
Appendix:
Historical Enforcement Data
List of Headquarters Enforcement Contacts
List of Regional Enforcement Information Contacts
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Enforcement Accomplishments Report
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FY1989 Enforcement Accomplishments Report
EPA Headquarters Enforcement Offices
Office of Enforcement (QE)
Deputy Assistant Administrator for Civil Enforcement 382-4137
Deputy Assistant Administrator for Criminal Enforcement 382-4539
Associate Enforcement Counsel for Air Enforcement 382-2820
Associate Enforcement Counsel for Water Enforcement 475-8180
Associate Enforcement Counsel for Waste Enforcement 382-3050
Associate Enforcement Counsel for Pesticides and Toxic Substances 382-4544
Office of Compliance Analysis and Program Operations (OCAPO) 382-3130
Office of Federal Activities (OFA) 382-5053
National Enforcement Investigations Center (NEIC - Denver) (303)236-5100
Office of Air and Radiation (OAR)
Stationary Source Compliance Division (SSCD) 382-2807
Field Operations and Support Division (FOSD) 382-2633
Office of Water (OW)
Office of Water Enforcement and Permits (OWEP) 475-8304
Office of Drinking Water (ODW) 382-5543
Office of Solid Waste and Emergency Response (OSWER)
Office of Waste Programs Enforcement (OWPE - CERCLA) 382-4810
Office of Waste Programs Enforcement (OWPE - RCRA) 382-4808
Office of Pesticides and Toxic Substances
Office of Compliance Monitoring (OCM) 382-7835
[Note: all HQ numbers are area code 202]
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FY 1989 Enforcement Accomplishments Report
U.S. Environmental Protection Agency Regional Offices
Enforcement Information Contacts
Region I - Boston
Connecticut, Maine, Massachusetts,
New Hampshire, Rhode Island. Vermont
Region II - New York
New Jersey, New York, Puerto Rico,
Virgin Islands
Region III - Philadelphia
Delaware, District of Columbia, Maryland,
Pennsylvania, Virginia, West Virginia
Region IV - Atlanta
Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, Tennessee
Region V - Chicago
Illinois, Indiana, Michigan, Minnesota
Ohio, Wisconsin
Region VI - Dallas
Arkansas, Louisiana, New Mexico,
Oklahoma, Texas
Region VII - Kansas City
Iowa, Kansas, Missouri, Nebraska
Region VIII - Denver
Colorado, Montana, North Dakota,
South Dakota, Utah, Wyoming
Region IX - San Francisco
Arizona, California, Hawaii, Nevada,
Trust Territories
Region X - Seattle
Alaska, Idaho, Oregon, Washington
Office of Public Affairs
JFK Federal Building Room 2203
Boston, MA 02203
617-565-3424 FTS: 8-835-3424
Office of External Programs
Jacob K. Javitz Federal Building
26 Federal Plaza
New York, NY 10278
212-264-2515 FTS: 8-264-2515
Office of Public Affairs
841 Chestnut Building
Philadelphia, PA 19107
215-597-9370 FTS: 8-597-9800
Office of Public Affairs
345 Courtland Street, N.E.
Atlanta, GA 303365
404-347-3004 FTS: 8-257-3004
Office of Public Affairs
230 South Dearborn Street
Chicago, IL 60604
312-886-7857 FTS: 8-886-7857
Office of External Affairs
First Interstate Bank Tower at Fountain Place
1445 Ross Ave. 12th Floor Suite 1200
Dallas TX 75202
214-655-2200 FTS: 8-255-2200
Office of Public Affairs
726 Minnesota Avenue
Kansas City, KS 66101
913-236-2803 FTS: 8-757-2803
Office of External Affairs
999 18th Street Suite 500
Denver, CO 80202-2405
303-293-7666 FTS: 8-564-7666
Office of External Affairs
215 Fremont Street
San Francisco, CA 94105
415-744-1050 FTS: 8-484-1050
Office of External Affairs
1200 Sixth Avenue
Seattle, WA 98101
206-4421466 FTS: 8-399-1466
US GOVERNMENT PRINTING OFFICE 19890-943-807
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