United States :
Environmental Protection
Agency '•.•i:/--^*^ :;•.;&.
Office Of '"•.-..
Enforcement
.-(LE-.133) :;
21 E-20Q2
February 1991
Enforcement
Accomplishments
Report
FY1990 .
{££} Printed on Recycled Paper
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F71990 Enforcement Accomplishments Report
The FY1990 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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FY1990 Enforcement Accomplishments Report
Table of Contents
Subject
I. Message from William K. Reilly, Administrator, and
James M. Strock, Assistant Administrator
II. FY 1990: Developing the "Blueprint" for Enhanced
Enforcement
III. Environmental Enforcement Activity
page
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FY1990 levels of Federal civil and criminal judicial case referrals,
administrative actions, penalty assessments, and State enforcement.
IV Major Enforcement Litigation and Key Legal Precedents
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
Enforcement Program
Summaries of major enforcement program strategies, initiatives,
guidance, and management studies.
VI. Media Specific Enforcement Performance and
Regional Accomplishments
Brief summaries of the Strategic Targeted Activities for Results
System definitions of Significant Noncompliance and highlights
of Regional accomplishments.
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Appendix: Historical Enforcement Data and List of EPA Headquarters
and Regional Enforcement Information Contacts
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FY1990 Enforcement Accomplishments Report
A Message from the Administrator and Assistant Administrator
1990 was the 20th anniversary of both Earth Day and the United States
Environmental Protection Agency. It also was a record year for the Agency's
enforcement of environmental laws. We are pleased by the symbolism — but not
surprised by the coincidence — of these events. It reflects the growth and
maturation of EPA's enforcement program and the high priority given to it by
President Bush, the Agency and the American people.
By the end of the 1980's, the enforcement program had received a
comprehensive range of administrative, civil and criminal enforcement authorities.
As this Report illustrates in detai}, the Programs and Regions employed them all
with record frequency in 1990 to ensure compliance with environmental laws.
During 1990, the Agency also developed a long-term strategy to make sure that
Federal, State, and local enforcement programs will have the capacity to identify and
resolve both media-specific and multi-media violations which present serious
risks to the environment and public health. The Report also highlights the
innovative enforcement activity in these new areas, such as geographic risk-based
targeting and pollution prevention — areas which will be hallmarks of the
Agency's enforcement focus throughout the decade.
We believe that this Report will play a useful role in describing our
enforcement program to the public. We trust it also will, serve an important
ancillary purpose by sending the appropriate deterrent message to potential
violators. That message is straightforward and demonstrable: This Administration
is committed to a forceful and successful environmental enforcement program both
now and in the future.
William K. Reilly
Administrator
James M. Strock
Assistant Administrator
for Enforcement
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FY1990 Enforcement Accomplishments Report
II. FY 1990: Developing the Blueprint for Enhanced Enforcement
FY 1990 was another record year for enforcement, continuing the trend of the last three years.
All-time highs were set for the number of civil (375) and criminal (65) referrals, as well as for the total
level of assessed penalties. The foremost example of this record activity is the $15 million civil penalty
assessed in the Texas Eastern Pipeline case, the single largest penalty assessment in the Agency's history.
But good "numbers" are not the only reason that FY 1990 was a watershed year for the Agency's
enforcement program. It also was the year the Agency defined and took the first steps to implement a
new approach in environmental enforcement by the federal, state and local governments.
This approach is the result of two separate, interrelated, EPA FY 1990 initiatives: the
Enforcement Four-Year Strategic Flan and the Enforcement in the 1990s Project. \J The former is a
comprehensive statement of the major goals and objectives of future-oriented enforcement program which
will drive the Agency's enforcement efforts. The latter is a set of analyses of, and specific
recommendations to improve, six components of the enforcement process which will be integrated into the
Agency's long-term planning process. 2/ Together, the Strategic Plan and the 1990s Project represent the
Agency's blueprint for a successful enforcement program for the future.
The assumption underlying both the Strategic Plan and the 1990s Project is that as the regulated
universe becomes larger and more complex, more sophisticated approaches are needed to obtain the
maximum effect from each enforcement action to help meet the Agency's environmental goals and
objectives. These approaches, which include more sophisticated decision making in developing
regulations, setting enforcement priorities, using enforcement tools, and settling enforcement actions, will
be flexible and will heavily rely upon the EPA Regions and States for effective implementation.
This enhanced enforcement approach envisions a greater emphasis over the next five years on
the explicit selection of cases based on health and ecological risk. It will have both media-specific and
cross-media components. The majority of enforcement efforts will continue to consist of the
medium-specific priorities (i.e., air, water, toxics, etc.) which are identified annually and for which the
programs undertake "timely and appropriate" enforcement response to resolve significant noncompliance.
However, these program-specific priorities Will also serve as the foundation for the development of
targeted "special initiatives" to resolve environmental problems caused by specific pollutants or
industries, or to protect sensitive geographic areas and ecological systems.
The enforcement approach arising out of the 4-Year Strategic Plan and the 1990s Project will be
fully implemented over the next several years. However, a number of the specific elements either have
previously been undertaken on a pilot basis (e.g., Regional multi-media enforcement pilots initiated in
FY 1989) or involve the expanded and more systematic use of existing tools (e.g., environmental auditing,
contractor listing). Therefore, the following sections, which summarize the major elements of the
Agency's enhanced enforcement program, also will include examples of their use by the programs and
Regions during FY 1990.
A Strengthening the Institutional Voice
1. The Focal Point for Enforcement
Specific enforcement responsibilities will continue to be located in both the Regions and
Headquarters program offices. However, the Office of Enforcement will serve as the Agency's national
voice regarding the enforcement of environmental laws. Three specific management decisions were made
in FY 1990 in support of this approach. First, the director of the criminal agent program of EPA's
National Enforcement Investigations Center (NEIC), will move from Denver to Washington, D.C. in order
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FY1990 Enforcement Accomplishments Report
to coordinate more dosely with EPA's other program offices. Second, the Offices of Federal Facilities
Enforcement and the Office of Federal Activities were integrated in the Office of Enforcement. Third, a
direct reporting relationship was established between the Assistant Administrator for Enforcement and
the Agency's Regional Counsels.
2. The Enforceability of Regulations
Successful enforcement depends on regulations whose definitions, standards, and applicability to
particular violations are clear. Enforcement becomes much more difficult where a regulation is vague in
scope or content. The Office of Enforcement and the media compliance programs will play a greater role
in the regulatory development process so as to ensure that regulations are enforceable from both a legal
and practical perspective.
Enforceability assessments which describe how enforcement-related technical, logistical and
legal concerns should be addressed in a proposed regulation and its implementation, will be developed
for selected rules. The Agency also will identify a subset of proposed regulations for each program for
pilot "field tests" to be conducted prior to final promulgation in order to identify potential weaknesses
that could render the rule unenforceable if not corrected. 3/
B. Targeting Enforcement for Maximum Environmental Benefits
Targeted enforcement initiatives will focus enforcement action against specific areas with
environmental problems. Targeting may involve either single media cases or cross media cases which cut
across the traditional media-specific approach driven by regulations and federal statutory authorities.
Some of the targeting criteria identified in the Strategic Plan include industries with poor compliance
histories, and specific pollutants or sensitive geographic areas of concern, including ones which cross more
than one Region or State.
Under a geographic approach, for example, Regions may identify all polluting facilities in a
specific geographic area, inspect the facilities to determine their compliance with regulation or permit
conditions, and take any necessary enforcement action to resolve noncompliance. In FY 1990, for example,
Region V simultaneously filed lawsuits against Inland Steel Corp., Bethlehem Steel Corp., and
Federated Metals Corp. in a coordinated effort to clean up pollution along the Grand Calumet River. The
three suits involve violations of Federal water, hazardous waste, and clean air laws. Indeed, the Inland
Steel complaint alleged violations in all three media and is the largest multi-media enforcement action
ever undertaken by the Agency. 4/
Targeted initiatives also can be used to combat the risk associated with particular pollutants or
categories of pollutants. In FY 1990, for example, five chloroflorocarbon (CFC) enforcement actions were
filed as part of the agency's ozone layer protection initiative. 5/ Similarly, the Agency began to
develop a lead enforcement strategy which will be fully implemented during FY 1991. Finally, the
RCRA Enforcement Program formed an enforcement targeting committee to advise on enforcement
initiatives. EPA announced the first such initiative on February 22, 1991; the filing of 28 actions to
enforce the land disposal restrictions of RCRA.
In order to facilitate targeting, the Agency began work in FY 1990 on a project to establish
automated linkages among its various compliance and enforcement data bases. When completed next
year, the Agency will be able to associate compliance and enforcement data from these systems according
to corporate structure, industrial sector, pollutants, and/or geographic areas. In addition to the national
databases containing compliance and enforcement information, the Agency's Toxic Release Inventory
(TRI) and other ambient databases, once integrated, will further aid risk assessment and targeting.
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FY1990 Enforcement Accomplishments Report
C. Screening Violations and Potential Cases for
Appropriate Enforcement Response
In FY 1990, as in previous years, the large majority of enforcement actions were handled ad-
ministratively. This trend will continue in the future. However, the Agency must be able to consider the
best enforcement response to violations — administrative, civil judicial, or criminal — especially when
they pose significant health or environmental risk. This capability, which will facilitate more uniform
case-handling across the Regions, also is needed when violations require complex technical or
multi-media response, or involve potential precedents or large penalties.
During the last quarter of FY 1990, the Agency developed guidance by which each Region will
develop a screening process to review violations for strategic value and their multi-media, innovative
enforcement, and civil judicial and criminal enforcement potential. Not every violation will warrant
scrutiny. Each program will determine what classes of violations should be subject to a screening process
and each Region, working with the Office of Enforcement, will have the flexibility to develop its own
specific screening mechanism. The "bottom line" for the use of these screening procedures is that the
decision on the nature of the response and whether and how multi-media enforcement can be brought to
bear on the nature of the injunctive relief should not rest solely with the program that conducted the
inspection and identified the violation.
D. Creative Use of Enforcement Authorities
Over the several years, the Agency has used a number of techniques to expedite or enhance
compliance. The 1990s Project has identified opportunities to use a number of techniques such as
Alternative Dispute Resolution (ADR) and environmental auditing to expedite or enhance compliance.
These techniques as well as other enforcement tools, will be used by the Regions and programs in order to
"leverage" the environmental and deterrent effect of individual enforcement actions. 6/ Two approaches
received special attention in FY 1990:
1. Pollution Prevention
Pollution prevention/waste minimization is at the top of the list of innovative approaches being
pursued by EPA, and enforcement will be a major tool to encourage efforts in this area. A strong
enforcement program in and of itself encourages pollution prevention by providing incentives for industry
to find ways to reduce its potential liabilities and response costs. In addition to fostering an overall
climate, the enforcement process can be used directly against noncompliers to promote pollution
prevention.
In FY 1990, the Office of Enforcement developed a draft interim policy on including pollution
prevention conditions in Agency settlements (the final interim policy will be issued early in FY 1991).
When conducting negotiations, the Federal litigation team may consider whether there are
opportunities to correct the violation through single or multi-media source reduction activities (e.g.,
reducing the source of emissions through changes in the industrial process or by production process input
substitutions). Settlements can also be used to encourage the respondent to undertake additional pollution
prevention activities not as directly related to the original violation (e.g., a commitment to phase out
the use of a specific pollutant over an agreed-upon period).
A number of cases with cross-media pollution prevention conditions were negotiated ih FY 1990.
Three are illustrative as part of a TSCA consent order, Schering Berlin Polymers (formerly Sherex
Polymers, Inc.) agreed to install a new filter system to reduce by 500,000 Ibs. annually the amount of
RCRA subtitle C hazardous waste that would otherwise have to be disposed of offsite. The 3-V
Chemical Corp.. also as part of a TSCA consent order, agreed to install a solvent recycling system that is
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expected to reduce by 50 percent the point source emissions of 1,1,1-trichloroethane (an unregulated
ozone-depleting substance) and dichloromethane (a suspected carcinogen). The Seekonk Lace Company
agreed to a EPCRA consent order which included a provision to eliminate emissions by substituting a
mechanical-based separation system for an acetone-based solvent one. TJ These cases were in the
vanguard of the Agency's strategy to use the enforcement process to enhance pollution prevention.
2. Contractor Listing
Contractor Listing authorities under the Clean Air Act and the Clean Water Act bar facilities
that violate those statutes from receiving federally-funded contracts, loans or grants. Listing is
mandatory for criminal violations and discretionary for civil violations of either Act. The Federal
Acquisition Rule provides procedures for barring contractors from participating in Federal procurement
based on offenses such as fraud or lack of performance integrity. Both sanctions are powerful deterrent
tools to reinforce environmental compliance.
In FY 1990, the Agency conducted a comprehensive review of, and developed an action plan for,
the contractor listing program in order to make it one of the centerpieces of an effective deterrence and
enforcement program. Particular emphasis was placed on screening of cases to identify candidates for
discretionary listing. £/ The Agency also will make more use of suspension/debarment for violators of
all environmental statutes, repeat violators, and multi-media violators.
E. Improving Relationships With Other Units of Government
The Agency must work more closely with all governmental bodies in the federal and
international system — localities, States, other Federal regulatory agencies, and other nations — in
order to successfully carry out its environmental goals and mission. The Agency's future enforcement
program will include expanded joint planning and cooperation, both within the different levels of our
own Federal system and with foreign governments, to more efficiently tackle persistent environmental
problems.
1. Federal Regulatory Agencies
Other Federal regulatory agencies oversee many of the same types of industries and facilities as
EPA. V\forking from the assumption that violations in one regulatory area may indicate the potential for
violations in others, EPA will look for opportunities for cooperation with ,other federal agencies to
advance mutual compliance objectives.
During FY 1990, EPA negotiated a Memorandum of Understanding (MOU) with the Occupational
Safety and Health Administration (OSHA) covering the periodic exchange of information from each
Agency's national compliance docket, cross-notification about possible violations discovered during
either an OSHA or EPA facility inspection, and joint inspection activity in areas of mutual priority, e.g.,
petrochemical facilities and lead smelting operations. 9/
Also in FY 1990, EPA began supplying compliance information to the Securities and Exchange
Commission (SEC) including PRP lists, respondent/defendant program docket information, and civil
penalty data in support of SEC's review of Material Liabilities Disclosure Forms (10K forms). The SEC
may, in turn, send EPA disclosure information that may help us focus on environmental liabilities
reported to the SEC. The fact that EPA and the SEC are working in concert has been publicized
throughout the regulated community, and should help ensure complete and accurate descriptions of
environmental liabilities in the 10K submissions to the SEC.
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2. States
The States play a fundamental role in the overall enforcement effort, and the necessity for close
cooperation has never been more evident. EPA will involve the States even more fully in its strategy
development and priority setting efforts, and work with them to enhance their own cross-media
targeting, case screening, and criminal enforcement capabilities. This will require additional technical
assistance, data sharing, and compliance training to States. EPA made its Basic Inspector Training
Manual available to States during FY 1990, and several Regions have invited State inspectors to
participate in the course. The Agency intends to do more information sharing with Hie States in the
future.
Also required are the joint development of more sophisticated mechanisms for Regional and
State oversight. Better oversight and evaluations depend on better quantitative and qualitative
information about State enforcement activities as well as a stronger consensus on the appropriate
Federal/State roles. During the last half of FY 1990, the Office of Enforcement and the Environmental
Law Institute (ELI) conducted planning for a Federal/State Enforcement Colloquium, which was held
November 29 - 30,1990. The Colloquium brought together about 50 officials from EPA Congress, States,
and environmental/citizens groups. The participants explored way to enhance enforcement activities
among the various interests, and to build consensus around the 1990s Project recommendations.
3. Other Nations
As the world community comes to realize that pollution does not respect geographic boundaries,
work must be coordinated to resolve the problems posed by issues such as global warming and the illegal
importing and exporting of hazardous wastes and chemicals.
In FY 1990, EPA helped organize an International Enforcement Workshop, which was held in
Utrecht, the Netherlands. The workshop included representatives from 14 countries and international
organizations, and expanded on activities which the U.S. and Dutch environmental organizations have
been conducting since 1985. The Workshop brought together government environmental enforcement
officials from around the world to exchange ideas and strategies on improving domestic enforcement
programs and enforcement of trans-boundary environmental accords. 107
F. Effective Communications About the Enforcement Program
EPA must communicate effectively with the Congress, the media, the public, and the regulated
community about our overall enforcement effort. This involves developing better ways of explaining
environmental improvement and publicizing individual enforcement actions to enhance deterrence.
1. Measuring Enforcement Effectiveness
No single quantitative and qualitative measure of program performance can provide a
comprehensive assessment of the enforcement program. Accurate measurement and assessment will
require consideration of whether a suitable existing data collection system exists with established
supportinng baseline data; whether it is feasible to quantify deterrence benefits resulting from each
discrete enforcement case; and whether it is practicable to capture the preventive impact of enforcement
activities.
During FY 1990, EPA took initial steps to quantify the impact of enforcement initiatives.
Working with the Office of Water and the Office of Mobile Sources, the Office of Enforcement developed
final enforcement effectiveness case studies for the Clean Water Act National Municipal Policy and the
Clean Air Act Lead Phasedown Program. The studies presented the environmental and economic benefits
related to enforcement activities and other measures of effectiveness, ll/
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This method of effectiveness analysis, while not without difficulties, is the type of
results-oriented analysis envisioned by both the Strategy and the 1990s Project which, with refinement,
will produce useful information about the impact of the Agency's enforcement efforts. As next steps, the
Agency plans to develop useful indicators of compliance within targeted industries, the deterrent impact
of penalties, and the use of pollution prevention activities.
2. Publicizing Enforcement Actions
Publicizing enforcement actions taken against violators magnifies the impact of the
environmental gains achieved through those actions, and the Agency will develop an overall
communications strategy to promote deterrence within the regulated community. This will involve
disseminating information about specific enforcement actions, including the environmental benefits
derived from that particular action. It will also involve communicating with both attentive publics and
the public at large about the Agency's total enforcement program, processes and procedures.
During FY 1990, for example, The Agency produced and distributed two general descriptions of its
enforcement efforts: Environmental Enforcement: A Citizen's Guide and The Public's Role in
Environmental Enforcement. The former provided an overview of the enforcement process, while the
latter publication encouraged citizen involvement by giving examples and illustrations of potentially
non-compliant behavior which the general public can report to State and/or Federal officials. Both
represent the type of communications outreach activity which the Agency will emphasize in the future.
G. Enforcement Training
Effective enforcement of environmental laws requires highly qualified legal and technical
personnel, and the Agency's already substantial training effort, which includes the civil, criminal, and
appellate two-week courses presented by the Attorney General's Advocacy Institute, the two-week
criminal enforcement training program conducted at the Federal Law Enforcement Training Center in
Glynco, Georgia, and the general and program-specific basis and advanced inspector training program,
will continue to grow. All enforcement personnel will receive appropriate training to increase their
effectiveness in the enforcement process. Over the next five years, the Agency will systematically train
inspectors, technical case development officers, investigators, and prosecutors in all phases of enforce-
ment, including introductory training in overall multi-media, multi-disciplinary enforcement.
During FY 1990, planning continued for the creation and development of the National
Enforcement Training Institute as authorized by the Pollution Prosecution Act of 1990. The Agency began
developing implementation options for the Institute concept, including curriculum development, the
involvement of (and training opportunities afforded to) State and local government personnel, funding,
faculty, facilities, and management. 12/
Conclusion
Vigorous environmental law enforcement is one of the nation's highest priorities. In some aspects,
implementing the new approach will require establishing new mindsets and ways of conducting business,
not only on the part of EPA and the States, but on the part of Congress, regulated industries, and the
public as well. The result, however, will be a comprehensive risk-based approach to" both
media-specific and cross-media enforcement which will serve the overall environmental goals of the
United States.
i/ For a discussion of these two initiatives, see James M. Strock, "EPA's Enforcement in the 1990s,"
Environmental Law Reporter, Volume XX, No 8, August 1990, pps. 10327 -10332. The final Strategic Plan
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was issued on October 17,1990 and is available upon request. The 1990s Project is undergoing final review
and will be available in February, 1991.
2/ The six analyses of the 1990s Project are: Enhancing Enforceability Considerations in Environmental
Rulemaking: Compliance Incentives/Leverage: Innovative Enforcement: The Local Government's Role in
Environmental Enforcement: Environment Management and Measures: and Strengthening the State/EPA
Relationship for Environmental Enforcement.
3/ cf. the 1990s Project report on Enhancing Enforceability Considerations in Environmental Rulemaking
for a complete analysis of this subject.
4/ cf. chapter IV for a summary of these cases and other FY 1990 cases.
5/ cf. chapter IV for a description of these cases
6/ cf. the individual reports on Innovative Enforcement, and Compliance Incentives/Leveraging for a
comprehensive discussion of constraints, opportunities and benefits in the use of inno.vative enforcement
tools, including: contractor listing, criminal enforcement, environmental auditing, pollution prevention,
field citations, alternative dispute resolution, field citations, cooperation with citizens' and other
non-governmental environmental organizations, environmental awards, and environmental education
and technology transfer.
Z/ cf. chapter IV for a more complete description of the original violations and the pollution prevention
settlement conditions of these three cases
8/ cf. chapter IV for a summary of key FY 1990 listing cases suspension/debarment for violators of all
environmental statutes, repeat violators, and multi-media violators.
9/ The EPA/OSHA MOU was formally signed by Administrator Reilly and former Labor Secretary Dole
on November 26,1990. Cf. Chapter V for a detailed discussion of the substance of the MOU.
107 Cf. chapter V for a complete account of the substantive issues discussed at the Workshop. The
Workshop is a model of the kind of international dialogue and cooperation on world environmental issues
that will expand significantly in the future.
!!/ Cf. Chapter V for a complete summary of the National Municipal Policy and Lead Phasedown
Effectiveness Studies.
12/ Cf. Chapter V for a discussion of Agency training efforts. .
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III. Environmental Enforcement Activity
Federal Tudicial and Administrative Enforcement Activity
Judicial Enforcement - Civil
During FY 1990, the Environmental Protection Agency (EPA) established a new all-time record
for civil judicial enforcement by referring 375 cases to the Department of Justice (DOJ), surpassing the
previous Agency record of 372 which was set in FY 1988, and the 364 cases that were referred to DOJ in FY
1989. Since FY 1988,1,111 cases have been referred to DOJ, nearly one third of all civil cases referred since
the Agency's creation (historical data are contained in the Appendix to this report). The federal
Superfund program established a new high-water mark in FY 1990 with 157 civil judicial cases referred
to DOJ.
EPA Civil Referrals to DOJ
FY 1977 to FY 1990
400
350
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89 FY90
TOXICS/
PESTICIDES
WATER
D RCRA
SUPERFUND
AIR
Illustration 1
Monitoring Judicial Consent Decrees
At the end of FY 1990, the Agency reported that 646 judicial consent decrees were in place and
being monitored to ensure compliance with the provisions of the decrees, more than three times the
number of five years ago. Where noncompliance with the terms and 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 32 actions to enforce consent decrees during FY 1990,
twice the number that were initiated in FY 1989.
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Judicial Enforcement - Criminal
In FY 1990, EPA's criminal enforcement program established new records by referring 65 cases to
DOJ (the previous record was 60 in FY 1989), bringing charges against 100 defendants (the previous record
was 98 in FY 1986), and the number of months of jail time to which defendants were sentenced with 745
months (the previous record was 456 months in FY 1987). FY 1990 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 follwing 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 181 years, and 643 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.
During FY 1990, the President signed into law the Pollution Prosecution Act of 1990. The Act
provides for a quadrupling by FY 1995 of the number of criminal program Special Agents and support
personnel. The Act also authorized the creation of EPA's National Enforcement Training Institute which
will provide support to the growing criminal program. Also during FY 1990, a number of management
studies of the criminal program were completed, and work has begun to implement a program
reorganization that calls for more centralized supervision of investigatory personnel.
EPA Criminal Enforcement Program
FY 1982 to FY 1990
FY82
FY83
FY84
FY85
FY86
FY87
FY88
FY89
FY90
Referrals to DOJ
Cases successfully
prosecuted
Defendants charged
Defendants convicted
& sentenced
Illustration 2
Administrative Enforcement
EPA posted its second highest annual total for administrative enforcement activities in FY 1990
with 3,804 actions. The Agency record of 4,136 was set in FY 1989. The totals for FY 1990 demonstrate
that although judicial actions (both civil and criminal) are crucial to EPA's overall success, and are
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generally looked to as the chief indicator of the vitality of Agency enforcement efforts, other indicators
need to be evaluated to assess EPA's effectiveness in enforcing environmental laws and regulations.
Congress has given EPA expanded authority in recently enacted or reauthorized statutes to use
administrative mechanisms to address violations and compel regulated facilities to achieve compliance.
The FY 1990 figures indicate that EPA programs continue to. make greater use of these effective and less
resource intensive tools.
EPA Administrative Actions
FY 1977 to FY 1990
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89 FY90
• EPCRA ffl TSCA Za FIFRA
El RCRA B CWA/SDWA HI CAA
HI CERCLA
Illustration 3
Contractor Listing
In FY 1990, a record number of facilities were added to the EPA's List of Violating Facilities
under the authorities provided to EPA by Clean Air Act Section 306 and Clean Water Act Section 508 to
bar facilities that violate the clean air or clean water standards from receiving Federally funded
contracts, grants or loans. Facilities owned or operated by persons who are convicted of violating Clean
Air Act Section 113(c) or Clean Water Act Section 309(c) (and involved in the violations) are subject to
automatic listing effective the d.ate of the conviction (this is referred to as mandatory listing).
Facilities which are mandatorily listed remain on the list until EPA determines that they have
corrected the conditions which led to the violations. Twenty facilities were listed in FY 1990 based on
criminal convictions — twice as many facilities as in any previous year. Four facilities were removed
from the list in FY 1990, one after a removal hearing before a Case Examiner. Since FY 1986, 55 facilities
have been placed on the mandatory list.
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 based on continuing or recurring violations of the
Clean Air Act or the Clean Water Act (this is referred to as discretionary listing). Facilities
recommended for discretionary listing have a right to an informal administrative proceeding. Facilities
listed under discretionary listing are removed after one year; or earlier if the Assistant Administrator
determines that the conditions which gave rise to the discretionary listing have been corrected, or that
the facility is on a plan that will result in compliance. In FY 1990, EPA proposed to list one facility
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under its discretionary listing authority. Three pending discretionary listing actions were withdrawn by
EPA after consent agreements were entered in the underlying civil enforcement cases.
Federal Penalty Assessments
In FY 1990, over $61.3 million in civil penalties were assessed, an all-time record ($38.5 million
in civil judicial penalties and $22.8 million in administrative penalties, both all-time records).
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 recover any economic benefit that a
noncomplying facility has realized, and assess additional penalties commensurate with the gravity of
the violation(s). It should be noted that the FY 1990 record totals would still set a record without
including the $15 million penalty in the Texas Eastern Pipeline consent decree, the largest environmental
penalty ever assessed. Since its creation, EPA has imposed over $247.3 million in civil penalties ($167.3
million with civil judicial actions and $80 million with administrative actions).
In FY 1990, over $8.8 million in Clean Air Act penalties were assessed ($5.9 million for
stationary source violations and $2.9 million for mobile source violations); $16.9 million in Clean Water
Act penalties were assessed ($12.4 million in civil judicial penalties and $4.5 million in administrative
penalties); over $25.4 million in Toxic Substances Control Act penalties were assessed ($15 million in
civil judicial penalties and $10.4 million in administrative penalties); and $6.8 million in Resource
Conservation and Recovery Act penalties were assessed ($3.9 million in civil judicial penalties and $2.9
million in administrative penalties). In FY 1990 there were at least three multi-media cases with RCRA
counts for which penalties were assessed and credited to other media, and are not included in the RCRA
total. The Federal Insecticide, Fungicide, and Rodenticide Act and Safe Drinking Water Act programs
are largely delegated to the States; however, EPA assessed over $587,000 and $578,000 respectively,
under these statutes. The Toxic Release Inventory program assessed nearly $1.6 million. Over $441,000
in Emergency Planning and Community Right-to-Know Act (EPCRA) sections 302-312 and CERCLA
Section 104 penalties were assessed.
Federal Judicial and Administrative
Penalty Assessments
FY 1977 to FY 1990
70,000,000
60,000,000
50,000,000
40,000,000
30,000,000
20,000,000
10,000,000
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89 FY90
ED ADMINISTRATIVE HQ JUDICIAL
Illustration 4
3-4
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FY1990 Enforcement Accomplishments Report
State Judicial 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 1990, the States referred
649 civil cases to State Attorneys General and issued 10,105 administrative actions to violating facilities
(in addition to the 4,145 adminstrative actions taken by States under FIFRA, 3,149 warning letters were
issued).
State Judicial Referrals
FY 1985 to FY 1990
T i i ii i i |
FY90
FY89
FY88
FY87
FY86
FY85
•A. SX *&. % <• **^s%
1 1
-. ^""x "•*• 1
1 1
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s"? :«•:•:" x -y!ft%"\—"
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1
1 1
1 1
"y' •. ^r ] BH
\ 1
o 100 200 :
M
SOO 400 500
• RCRA D AIR
—
^^^^1
BHI
-
600 700 800 900 1000
H WATER 1
FY90
FY85
2000
State Administrative Orders
FY 1985 to FY 1990
4000
6000
8000
10000
12000
14000
RCRA
AIR
WATER d FIFRA
Illustrations 5&6
3-5
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FY1990 Enforcement Accomplishments Report
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FY1990 Enforcement Accomplishments Report
IV. Major Enforcement
Litigation and Key Legal
Precedents - Protecting Public
Health and the Environment
through Enforcement
During FY 1990, EPA's strong base
enforcement program continued to obtain
injunctive relief and significant penalties to
correct priority violations in all media. In
addition, the compliance programs undertook a
number of targeted actions and used the
settlement process to obtain additional
environmental relief. The special initiatives
undertaken in FY 1990 are indicative of the type
of enforcement activity which will become the
hallmark of the Agency's enforcement program in
FY 1991 and beyond. This chapter provides
highlights of major FY 1990 litigation which
support media enforcement priorities and
demonstrate innovative approaches in the
enforcement process.
Clean Air Act Enforcement
The Clean Air Act program regulates the
emission of both toxic and criteria pollutants from
both stationary (factories, plants, utilities) and
mobile (auto) sources. Stationary source air toxics
litigation centered upon violations of the
National Emissions Standards for Hazardous Air
Pollutants (NESHAPS), especially those
involving asbestos and benzene, while mobile
source air toxics litigation emphasized violations
of the lead phasedown rules, as well those
involving fuel switching, volatility, and
additives requirements. Enforcement of the
National Ambient Air Quality Standards
(NAAQS) for the criteria pollutants involved
violations of regulations for volatile organic
compounds (VOCs), sulfur dioxide and
particulates.
Stationary Source Program
U.S. v. J.Y. Arnold and Associates, Inc.; On
December 22,1989, a consent decree resolved this
Region IV Clean Air Act ("CAA") civil
enforcement action against J.Y. Arnold and
Associates, Inc. ("J.Y Arnold") for alleged
violations of the National Emission Standards
for Hazardous Air Pollutants for asbestos
("Asbestos" NESHAP") during an asbestos
4-1
renovation project at the Adeth Jeshurun
Synagogue in Louisville, Kentucky. In conjunction
with the civil enforcement action brought against
J.Y. Arnold, Region IV initiated proceedings to
list J.Y. Arnold as a violating facility, pursuant to
§ 306 of the CAA and 40 C.F.R. Part 15. A hearing
on the listing was held on May 2, 1989, which
resulted in the presiding officer recommending
listing J.Y. Arnold.
The consent decree requires J.Y. Arnold to
train all of its asbestos abatement personnel in
EPA-approved training courses. The consent
decree further requires J.Y. Arnold to pay a civil
penalty of $17,500 and stipulated penalties for
any violation of the consent decree. In addition,
J.Y. Arnold must report directly to the Region on
all demolition/renovation projects the company
bids so the region can reference compliance by
other contractors in the area.
As a result of J.Y. Arnold's performance of
the conditions specified in the decree, Region IV
has agreed to withdraw the listing
recommendation for J.Y. Arnold. This is believed
to be the first case in which an asbestos contractor
was determined to be a violating facility
pursuant to a listing hearing. Furthermore, under
the terms of the Consent Decree, if J.Y. Arnold
should violate the Decree, EPA can list J.Y.
Arnold as a violating facility without needing to
pursue any additional administrative
proceedings.
In the Matter of Bethenergy Corporation: In
March, 1989, Region II issued a §120 Notice of
Non compliance against Bethenergy Corporation
(owner-Bethlehem Steel Corp.) for visible
emissions violations at the waste heat stacks of
its coke oven battery. The violations were
documented using EPA's LIDAR system. During
1990, the company requested an accelerated
decision seeking dismissal of this administrative
case on the grounds that the state coke oven
regulation was not part of the SIP. The
Administrative Law Judge in a March, 1990 ruling
denied Bethenergyls motion and granted EPA's
cross-motion for accelerated decision. The
decision was based narrowly on the facts of EPA's
approval of the regulation in question.
Bethenergy appealed the decision to the
Administrator, who issued a ruling in June
upholding EPA's interpretation, though with
different reasoning. Bethenergy has appealed
the decision to ask for reconsideration by the
Second Circuit Court of Appeals.
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FY1990 Enforcement Accomplishments Report
U.S. v. Bingswanger Management Corp., et al.:
Defendants in this Clean Air Act enforcement
action agreed to pay a civil penalty of $184,000,
one of the largest penalties ever obtained in a
case involving the National Emission Standard
for Hazardous Air Pollutants for Asbestos
(Asbestos NESHAP). The consent decree was
entered May 22,1990, resolving this enforcement
action alleging violations of the notice and work
practice standards of the Asbestos NESHAP
during renovation of the Widener Building in
Philadelphia, Pennsylvania. In addition,
defendants agreed to implement several measures
designed to prevent violations of the Asbestos
NESHAP in the future, such as educational and
training provisions and designation of an Asbestos
Program Manager, responsible for ensuring the
company complies with the NESHAP at all
future projects.
U.S. v. Boise Cascade Corporation: Underscoring
EPA's commitment to take enforcement measures
before the start-up of operations, a June 28,1990,
consent decree resolved EPA's case against Boise
Cascade for Clean Air Act violations at its pulp
and paper mill in International Falls, Minnesota.
The decree requires Boise to pay a $350,000 civil
penalty, the largest ever for failing to obtain a
PSD/NSR permit. The case stemmed from Boise
Cascade's failure to obtain a PSD and non-
attainment New Source Review (NSR) permit
before beginning construction on modifications to
its mill. The alleged violations were discovered
by a Region V inspector who observed the
existence of pilings for a new paper machine and
bleach plant.
EPA issued a notice of violation to Boise
Cascade on November 1, 1988. Although the
company stopped construction activities by the
end of November, EPA made it clear that this
would not absolve Boise Cascade from liability.
EPA demanded that Boise Cascade obtain a
construction permit before continuing the
modification and pay a civil penalty. Boise
Cascade obtained a valid permit from the State
of Minnesota on June 12,1989.
U.S. v. Conoco Pipeline,, Inc.; On behalf of EPA, on
February 28,1989, the United States sued Conoco
Pipeline, Inc. of Oklahoma City, Oklahoma for
violations of the New Source Performance
Standards regarding volatile organic compound
storage tanks. The facility had failed to provide
notification of construction, startup and refill.
The case was filed on February 28, 1989. After
4-2
lengthy negotiations, the case was settled on
January 10, 1990 for $69,995 civil penalty. A
consent decree was entered in the U.S. District
Court for the Western District of Oklahoma on
August 9,1990, and the penalty amount was paid
on September 7,1990.
In the matter of Dakota Gasification Company:
With extensive assistance and oversight by
Region VIII, the Department of Energy (DOE),
Dakota Gasification Company (DGC), formerly
known as American Natural Gas (ANG), and the
State of North Dakota reached a settlement
agreement' stemming from violations of permitted
SO2 emissions from PSD and NSPS emission
points. The Consent Agreement, signed on August
14, 1990, specifies that DGC will pay $35,000 for
failing to comply with another Consent
Agreement signed on April 27, 1989, which
required submittal of a PSD permit application
and a compliance schedule. This Consent
Agreement also contains stipulated penalties of
$1,000,000, which will be suspended if certain
milestones are met. Further, if the cost of
specified control equipment is less than the
original cost of $65,183,000 proposed in a previous
BACT analysis, DGC agrees to pay the State the
difference in costs.
U.S. v. Fehr Brothers, Inc.; The largest
settlement yet in enforcement of the rules to
protect stratospheric ozone, involving the
payment of a $101,935 civil penalty, was filed
June 29, 1990. The Department of Justice lodged
the consent decree on behalf of EPA with Judge
JohnF. Keenan of the United States District Court
for the Southern District of New York.
The defendant, Fehr Brothers, Inc., cured
its alleged wrongful importation of 153,600
kilograms of ozone-depleting Chloroflorocarbon
by purchasing consumption allowances from
companies which had generated allowances
through proper exportation.
U.S. v. General Dynamics: A court for the first
time ruled that the contractor at a Government
Owned - Contractor Operated ("GOCO") facility
(General Dynamics Corp., Fort Worth, TX) is
considered the operator as a matter of law.
Because environmental statutes usually provide
the Administrator with authority to pursue
either owners or operators of violating facilities,
General Dynamics and other contractors making
use of government-owned facilities often argue
that they are not operators and that they
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FY1990 .Enforcement Accomplishments Report
£ \
exercise no independent judgment or responsibility
(they claim they can only do what the
•government expressly orders them .to do — an
argument usually at odds with their contracts).
Therefore, the argument goes, the government is
both the owner and the operator, and EPA should
seek to resolve the violations through
administrative processes because the government
cannot sue itself. -The U.S. District Court for the
Northern District of Texas issued an order on
February 6, 1990, stating that General Dynamics
is the operator of Air Force Plant No, 4, the only
facility at which the F-16 fighter plane is made.
In its one-page opinion, the court held that the
-U.S. was entitled to judgment as a matter of law
regarding the defendant's status as operator of
the facility, and entered .partial judgment
holding that General Dynamics was the operator
of Plant No. 4. The General Dynamics order
represents the first time a court has specifically
ruled that the. contractor at a GOCO facility is
the operator: and may hold significance for cases
involving GOCO facilities where the contractor
has claimed that it is an alter ego of the
government exercising no independent judgment or
authority. The case, filed in 1987, alleges that
General Dynamics violated the Texas SIP VOC
standards at three coating lines at Air Force
Plant No. 4, where the company applies surface
coatings to the F-16 fighter plane, v ,
General Motors Corp. v. U.S.: The Supreme Court
ruled,that EPA can enforce air pollution control
regulations even when a proposal to relax them is
pending with EPA for approval. In a June 14,
decision, the Court ruled that the four-month
deadline for EPA to approve State
Implementation Plans (SIPs) does not apply to
; EPA's review of revisions to such: plans.
Moreover, EPA's failure to act on proposed
revisions within a "reasonable time" does not bar
enforcement of the existing SIP. The appropriate
remedy for unreasonable delay by EPA in
reviewing a proposed revision is,a lawsuit to
compel EPA to act on the, revision, or a request by
the defendant in an enforcement action to reduce
penalties.
This decision arose out of, an enforcement
action brought by EPA against General Motors for
emissions of volatile organic compounds, a
precursor of ground-level ozone, at its automobile
assembly plant in Framingham, Massachusetts.
Justice Blackmun wrote the opinion for a
unanimous court. ..-. ..". , .... ..
4-3
In the matter of Hadsoh Power PSD Permit
Review;; Region III filed a Petition for Review
requesting review of a PSDpermit issued by the
Commonwealth of Virginia to Hadson Power-11,
Southampton Plant, Ultrasystems Development
Corporation for the construction of a cogeneration
plant consisting of two spreader-stoker coal-fired
boilers. Hadsoh Power; had filed three other
T applications for cogeneration plants similarly
designed and expected to emit the same level of
emissions in tons per year (TPY). Region Ill's
opinion was that selective noncatalytic reduction
processes involving the injection of ammonia or
urea were economically feasible and that the
technology (thermal de-NOx) had been applied
to other fuel types of stoker boilers and to coal-
fired circulating fluidized bed boilers. Region III
believed that transfer of this technology was
appropriate to coal-fired spreader stokers; that
additional sulfur dioxide emission reductions
were possible and more appropriate as a form of
BACT; and that the control efficiency of the
scrubber could be improved and the sulfur level in
the coal reduced. '"•:" ::-..".-.• :: : 7;
Agreement was reached in February, 1990
between Hadson Power, the Commonwealth of
Virginia and EPA. The agreement enabled the
Region to withdraw the appeal in February: 1990
and resulted in a 276 TPY reduction in; SO2
emissions, which, over the 30-year, life of this
, plant, means 8,280 tons less SO2 in the
atmosphere. The agreement also required a more
complete BACT analysis in future Hadson Power
applications and at least a 50% reduction in NOx
emissions from the proposed plants.
In the matter of Instant Web Inc.; On February 8,
1990, an order was issued to Instant Web, Inc. of
;Chanhassen, Minnesota, pursuant to § 167 of the
Clean Air Act/This was the first such order to be
issued in Region V and required that Instant Web
immediately cease construction which was
proceeding in violation of PSD regulations.
Again, this action underscores the Region's
resolve to insist that new or modified sources in
attainment areas be equipped with the best
pollution controls.
U.S. v. Lyon and Associates: On Tune 4.1990, Judge
Ramirez of the Eastern District of California
approved a Consent Decree which imposed a
civil penalty on three defendants who had
violated the asbestos NESHAP. The defendants,
Lyon and Associates, Fred B. Curtis, Inc., and
George E. King Construction, were responsible for
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FY1990 Enforcement Accomplishments Report
the improper removal of friable asbestos roofing
material from a building in Sacramento
California. The violations had been discovered
by the Sacramento Metropolitan Air Quality
Management District ("the district"), but because
the District was having difficulty obtaining a
penalty from the defendants, it asked EPA for
assistance. EPA and the District brought a joint
enforcement action and shared the resulting
$65,000 civil penalty.
IIȣLr-3k..'LouisianajPa.cificr Kremmling. CO and
Louisiana-Pacific: These cases involved a
national investigation into NSR/PSD Practices
by Louisiana-Pacific Corporation for construction
and operation without a PSD permit. As a result
of Region VIII initiatives, SSCD has initiated an
investigation into the New Source Review (NSR)
practices of Louisiana-Pacific Corporation (LP).
LP's Northern Waferboard Division,
headquartered in Hay ward, Wisconsin, has been
operating two waferboard plants, both major
stationary sources for CO and VOC, without
obtaining required PSD permits in Colorado since
1984.
On June 26, 1990, Region VIII referred the
two LP plants to DOJ for the PSD violations. In
March 1990, Georgia reported that LP had
recently constructed a waferboard plant that was
permitted as a minor source by of Georgia, but
was operating as a major source. This information,
in light of the similar way the Colorado plants
were constructed and permitted, has raised the
question of the existence of a corporate
NSR/PSD permitting review for new LP plants.
Region VIII contacted SSCD and suggested that
SSCD coordinate and conduct a nationwide
investigation into LP's permitting practices at
the company's other VIII submitted to SSCD a
memo which recommended a national strategy for
evaluating LP's compliance new source review.
The strategy includes a recommendation to
develop Control Technique Guidance (CTG) for
waferboard plants, and for the development of a
standard multi-operational parameter matrix
stack test protocol to be used at all waferboard
plants.
U.S. v. OccideiitaLChemicalJZQrp*: A consent
decree was entered by the court on August 14,1990,
under which Occidental Chemical Corp. agreed
to pay $687,223 to resolve the firm's violations of
the vinyl chloride NESHAP at their Pottstown,
PAV facility, the largest penalty to date in a
single vinyl chloride case. The decree, filed in
4-4
the U.S. District Court for the Eastern District of
Pennsylvania, marks the first federal
enforcement action in which a poly vinyl chloride
manufacturer has agreed to install an enhanced
recovery system and is also the first air case to
require periodic environmental audits. In
addition to the penalty, the decree specifies over
$3 million worth of injunctive relief including the
periodic audits, the additional control
equipment, and training.
Fwrtft Kkan *>"**"* Company. Inc.. v. EPA;
In early November, 1989, the U.S. Court of
Appeals for the First Circuit upheld EPA's
method of determining applicability under the
PSD regulations. The case was the first to
consider the netting of emissions, and EPA's
requirement for comparison of actual emissions
prior to modification with proposed allowable
emissions after modification, for PSD
applicability purposes. Although this was a
defensive litigation, it has great significance for
EPA's enforcement program.
U.S. v. Sid Richardson Carbon and Gasoline: Sid
Richardson Carbon and Gasoline operates a
carbon black plant in Addis, Louisiana, which
manufactures carbon black by burning natural gas
or fuel oil with reduced oxygen. Waste gas
streams from the carbon black reactors contain
large amounts of acetylene, which is a volatile
organic compound (VOC). Studies have shown
VOCs contribute to the formation of ozone in the
lower atmosphere. Louisiana submitted a
revision to the State Implementation Plan (SIP)
that would exempt carbon black .plants from
controlling acetylene, which was finally
disapproved by EPA in early 1990. Region VI
forwarded a litigation report to the Department
of Justice on December 31,1986. A consent decree
became effective on September 1, 1990, which
ordered Sid Richardson to control the VOC
emissions and pay a $77,000 penalty, which was
paid September 17,1990. Region VI also assisted
the State in issuing a PSD permit for construction
of a flare system to destroy at least 90% of the
acetylene.
U.S. v. Santa Fe Energy Company; Santa Fe
Energy Company (SPEC) owns and operates an oil
recovery facility near Bakersfield in Kern
County, California. On March 22,1990, EPA filed
a complaint in the U.S. District Court for the
Eastern District of California alleging that SPEC
had violated the Clean Air Act and Prevention of
Significant Deterioration (PSD) regulations by
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FY1990 Enforcement Accomplishments Report
failing to install continuous emissions monitoring
systems (CEMS) for nitrogen oxides and oxygen on
its steam generators. The CEMS were required by
a PSD permit issued to the company by EPA. In a
consent decree entered July 10,1990, SPEC agreed
to pay a civil penalty of $201,000 and to comply
with certain injunctive provisions. The penalty is
among the largest EPA has collected nationwide
for violations of PSD permitting requirements.
U.S. v. Stone Southwest Corporation: A Consent
Decree, filed August 28, 1990, in the United
States District Court for the District of Arizona,
resolved EPA's lawsuit citing Stone Container
Corporation ("Stone") with violations of the
Clean Air Act. Stone manufactures newsprint and
kraft linerboard at its paper mill in Snowflake,
Arizona. A coal-fired boiler provides the mill's
power. In its action, EPA alleged that Stone had
violated New Source Performance Standards by
failing to send quarterly excess emission reports to
EPA over a 48 month period. Second, EPA alleged
that Stone violated the sulfur dioxide (SO2)
emission limit contained in the Arizona State
Implementation Plan. To resolve the matter,
Stone agreed to pay a civil penalty of $200,000.
Stone also agreed to a Consent Decree which
called fpr Stone to install a new scrubber for sulfur
dioxide.
U.S. v. Stauffer Chemical Company (a division
of Rhone-Poulenc Basic Chemicals Company): On
August 1, 1990, the U.S. District Court for the
District of Montana filed a consent decree
concluding EPA's civil enforcement action against
this elemental phosphorus plant in Silver Bow,
Montana. EPA overfiled a State action which
would have allowed the source to obtain a
variance because the Region believed additional
controls were necessary to protect the
environment. After prolonged negotiations with
the defendant, EPA was able to achieve a consent
decree in accordance with which the defendant
paid a penalty of $100,000 and was required to
install extensive controls.
U.S. v. Tzavah Urban Renewal Corp. et al.: This
case resulted in the imposition of a total of
$555,000 in civil penalties, the largest amount
ever assessed in a Clean Air Act enforcement
action involving the National Emission Standard
for Hazardous Air Pollutants for Asbestos
(Asbestos NESHAP), 40 C.F.R. Part 61,Subpart M.
The government alleged violations of both the
notice and work practice standards of the asbestos
NESHAP while defendants were renovating the
4-5
former Military Park Hotel in Newark, New
Jersey. On July 25, 1990 a consent decree was
entered as to defendants Tzavah Urban Renewal
Corp., Harry K.Hampel, Datsun Investments,
Pinros & Gar, Henry Roth, and Sol Mayer. These
defendants agreed to pay a civil penalty of
$330,000. In addition, they agreed, with respect
to all future demolition or renovation operations
in which they are an owner or operator, to have
an inspector with EPA-approved training do a
complete building inventory for asbestos. On June
21, 1990 Judge Alfred J. Lechner, Jr. awarded the
government $225,000, the maximum civil penalty
allowed under the Clean Air Act, as to the two
remaining defendants, William Creer and Creer
Industrial Corp., which had default judgments
entered against them. In his Letter-Opinion,
Judge Lechner determined the statutory maximum
was appropriate because the defendants had
acted in bad faith by refusing to respond to any
actions filed in the case and their alleged
violations "provided an enormous potential for
danger and unknown injury to the public." The
opinion was published at 696 F. Supp. 1013
(D.N.J. 1988), and the consent decree also
received national recognition by being written up
in the Wall Street Journal as a warning to real
estate developers in dealing with renovations
and demolitions, even when they contract out the
actual work.
U.S. v. Wheeling-Pittsburgh Steel Corporation:
EPA brought an action against Wheeling-
Pittsburgh Steel Corporation for emissions of
particulate matter at its steel galvanizing plant
in Martins Ferry, Ohio. Under the terms of a
consent decree entered on February 21, 1990,
resolving the case, Wheeling-Pittsburgh must
replace scrubbers on three galvanizing lines with
one or more baghouses. The company must
demonstrate compliance with the emission limits
by April 15, 1991. In addition, the company is
required to pay a civil penalty of $220,000.
Clean Air Act Enforcement
Mobile Source Program
U.S. v. Coastal Refining and Marketing: This
case involves illegal lead rights. Coastal
Refining and Marketing imported gasoline and
claimed 29 million grams of lead rights. EPA
issued a Notice of Violation on February 3, 1987,
with a proposed penalty of $1.1 million, alleging
that the respondent could not make a claim for
lead rights because the imported product was not
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FY1990 Enforcement Accomplishments Report
finished gasoline, rather, it was gasoline
blendstock used to make gasoline. Suit was filed
by EPA in the U.S. District Court for the
Southern District of Texas on July 27,1987. The
Court agreed with EPA that the product was not
gasoline, but ruled that the penalty provision of
the Clean Air Act, § 211, was unconstitutional
because it violated the separation of powers
doctrine and respondent's Fifth amendment right
of due process. EPA appealed to the U.S. Court of
Appeals for the Fifth Circuit and the Solicitor
General, Kenneth Starr, argued on behalf of EPA.
The Court of Appeals overruled the District
Court and found that § 211 of the Clean Air Act is
constitutional, representing a major success for
EPA. However, the Court of Appeals held that
the product met the definition of gasoline as
defined under the lead Phasedown regulations.
U.S. v.GEQ-PLEX: EPA investigated GEO-PLEX
Corporation for the marketing and sale of
catalytic converters which provided virtually no
emission control function and were advertised and
labeled as "EPA Approved". No such approval,
however, was sought nor is ever provided by EPA.
GEO-PLEX also claimed that after installation
of the device leaded gasoline could be used in the
vehicle. EPA referred the case to the U.S.
Attorney's office for prosecution. GEO-PLEX was
enjoined from ever marketing a nonconforming
catalytic converter device and a judgment was
entered against the defendants for $100,000. In
December of 1989, the Court found the defendants,
as officers of the corporation, to be personally
liable for any violations of the Clean Air Act
that occurred, representing a major enforcement
success for EPA.
In the matter of Golden Gate Peteoleum Company:
In an important resolution of a lead Phasedown
case, EPA recovered a civil penalty of $1 million
plus interest pursuant to a Consent Judgment
entered on September 14, 1990. In addition to
liability being imposed against the corporate
defendants, liability was imposed against an
individual who was the president and majority
shareholder. This case involves an
importer/refiner of gasoline who manufactured
and imported gasoline containing excess lead.
Approximately 50 million grams of excessive
lead were introduced into the environment. The
respondent also illegally created lead credits and
misrepresented its lead usage to EPA.
Clean Water Act Enforcement
Clean Water Act (CWA) enforcement
supports the National Pollutant Discharge
Elimination System (NPDES) program, which is
the permit program regulating both direct and
indirect discharges to the nation's navigable
waters. FY 1990 enforcement emphasized three
priority areas: 1) continued compliance by
publicly-owned treatment works (POTWs) under
the National Municipal Policy (NMP); 2)
continued enforcement against POTWs which
failed to implement required pretreatment
programs and industrial sources that failed to
meet pretreatment requirements; and 3)
enforcement against violations of priority
pollutant permit limitations.
American Samoa Tuna Canneries: After years of
challenging water quality-based effluent limits
in their NPDES permits, two American Samoa-
based tuna canneries recently agreed to undertake
actions to achieve compliance with those limits,
to pay penalties for past violations of those
limits and to pay stipulated penalties if they
fail to comply with deadlines and interim
effluent limits established in their consent
decrees. The agreements are the result of an
innovative cooperative arrangement between the
American Samoa Government (ASG), and EPA
Region IX, which allowed American Samoa, a
non-delegated state, to take the judicial action
seeking penalties for non-compliance with
American Samoa water quality standards, while
EPA issued parallel administrative compliance
orders, mirroring the injunctive provisions of the
ASG consent decrees. The EPA orders were issued
on June 18, and the ASG complaints and consent
decrees were filed on June 20,1990. On August 3,
1990, the American Samoa High Court signed the
consent decrees and issued an opinion and order.
The canneries began institution of high-
strength waste segregation and ocean disposal of
their fish processing wastes which are high in
nitrogen and phosphorus in August, as required by
the compliance schedule. Intensive monitoring
reports submitted to date by the canneries
indicate a significant decrease of nutrients
discharged to Pago Pago Harbor and, in general,
compliance with the interim effluent limits.
In the matter of Crossville. TN; An
administrative order was issued August 8,1990, to
the City of Crossville, TN, which operated a 2.3
4-6
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FY1990 Enforcement Accomplishments Repdrt
MGD treatment plant that had a severe impact
on aquatic organisms in the Obed River as well as
causing discoloration, foam, and solids. The City
improperly operated/maintained the plant and
improperly handled/disposed of sludge. The
City failed to enforce its pretreatment permits,
resulting in a severe impact from Toulene, Zinc,
Biological Oxygen Demand, Total Suspended
Solids/Fecal Coliform, Chlorine> Ammonia,
Settleable Solids, Dissolved Oxygen, and pH.
The City had bypassed raw sewage, and the
plant was hydraulically overloaded. The Order
required stream remediation, collection system
upgrade, and enforcement of the pretreatment
program. The Order assessed a civil penalty of
$58,000.
In the matter of CSX Transportation; An
administrative order was issued October 13,1989,
to CSX Railroad's Radnor Yard in Tennessee
which generated oily wastewater from surface
runoff and a subsurface drainage system. This
wastewater impacted aquatic organisms in
Brown's Creek and caused ground water
contamination. The Order required CSX to apply
for an NPDES permit and remediate the
contamination. The Order assessed a civil
penalty of $65,000.
U.S. v. Eagle-Picher Industries; EPA and the
Department of Justice entered into the settlement
of a Clean Water Act § 301 NPDES enforcement
action against Eagle-Picher Industries, Inc., a
battery and chemicals manufacturer located in
Joplih, Missouri. Under the terms of the
settlement, Eagle-Picher agreed to pay a civil
penalty of $1.5 million for its past violations. In
addition to the penalty, the settlement requires
Eagie-Picher to meet stringent interim discharge
limitations, and to attain full compliance with
its permit limitations and pretreatment
requirements by December 15, 1990, or pay
additional significant stipulated penalties.
Eagle-Picher is also required to conduct a
comprehensive environmental audit of the
company's compliance with federal, state, and
local environmental laws, and to correct any
violations and certify compliance within a
specified time period. The complaint filed in
October of 1987, alleged discharges of heavy
metals and other pollutants in violation of
NPDES permit limits and violations of
pretreatment requirements for discharges into the
municipal sewer system.
U.S. v. City of El Paso: On August 21,1990, a
consent decree was entered by the U.S. District
Court for the Western District of Texas resolving
EPA's enforcement action against the City of El
Paso, Texas. EPA's action was brought under the
Clean Water Act for El Paso's failure to
implement its approved pretreatment program.
It was one of four major actions filed in early FY
1990 as part of the Pretreatment Enforcement
Initiative. That Initiative consisted of
approximately 61 Federal and " State,
administrative and judicial actions against
municipalities for failing to comply with
pretreatment implementation requirements, The
consent decree requires the City of El Paso to
identify its industrial users, issue permits to all
significant and categorical industrial users,
adequately monitor and inspect significant
industrial users, modify the City's pretreatment
program to address insufficiencies, provide
regular reports to EPA on the City's
implementation efforts arid enforce its
pretreatment program. In addition, the decree
required the City to pay a civil penalty of
$395,000 for its past pretreatment violations.
This is the largest penalty paid by a
municipality, to date, for pretreatment
Violations. The enforcement action and
compliance agreement with the City of El Paso (a
City of 480,000 people and numerous industrial
.users, which discharges 50 million gallons of
wastewater to the Rib River Basin per day) will
result in a significant reduction of chemical
discharges to the Rio Grande River Basin.
Hoffman Group v. EPA; A federal appeals court
for the first time May 14 held that EPA may not
be sued to obtain a court's opinion of the validity
of a CWA Administrative Compliance Order or to
enjoin EPA's enforcement of such an order. The
U.S. Court of Appeals for the Seventh Circuit
held that CWA Administrative Compliance
Orders are not subject to pre-enforcement review.
The appeals court concluded that Congress in the
CWA intended that no judicial review of ACOs be
available. r
U.S. v. Louisiana-Pacific Corporation and
Simpson Paper Company; Louisiana-Pacific
Corporation ("L-P") and Simpson Paper Company
("Simpson") own and operate two pulp mills in
northern California. On October 2,1989 and July
3, 1990, the United States filed complaints
against L-P and Simpson, respectively, for
- discharging pollutants from their pulp mills in
violation of numerous conditions in their
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F7 7990 Enforcement Accomplishments Report
National Pollutant Discharge Elimination
System (NPDES) permits issued under the Clean
Water Act, in particular those related to chronic
toxicity limits. These limits require that the
mills' effluents have no toxic effect in a sea
urchin fertilization test when the effluents are
diluted to predicted receiving water
concentrations.
L-P and Simpson's mills are unique in that
they have no treatment for their effluents. Under
EPA effluent guidelines, pulp mills are normally
required to install biological treatment systems to
meet Best Practicable Control Technology (BPT)
effluent limitations. EPA issued waivers of this
requirement to L-P and Simpson pursuant to
§301 (m) of the Clean Water Act. EPA issued
these waivers based on assurances from the mills
that they would reduce and control effluent
toxicity without biological treatment. EPA has
filed these actions, in part, to remedy L-P and
Simpson's failure to control effluent toxicity.
U.S. v.Menominee Paper Company: In July 1990,
Menominee Paper Co. of Menominee, MI, pled
guilty to a IQ-count indictment on criminal
misdemeanors under the Clean Water Act.
Menominee Paper admitted that it knowingly
underreported the amount of total suspended
solids and other pollutants discharged in 1985
and 1986. In addition to the plea, the company
agreed to make a public apology for its
infractions in the form of a full-page
advertisement in the local newspaper and to pay
a $100,000 criminal fine.
A related civil case was resolved
simultaneously by a consent decree that requires
Menominee Paper Co. and its parent company,
Bell Packaging Corp., of Marion, IN, to pay the
second highest civil penalty ever levied under
the Clean Water Act - $2.1 million. Should the
company fail to make the payment, John Bell Jr.,
chairman and chief stockholder of Menominee
Paper Co., will be held personally liable. The
decree also specifies that Menominee Paper must
perform a comprehensive audit under all
applicable environmental statutes including
RCRA and EPCRA. EPA will choose the auditing
firm, review and approve the audit report, and
will require the company to remedy any problems
identified.
In the matter nf Nashville 1UPfrn; An
administrative order was issued by the Tennessee
State Commissioner on March 30, 1990, to
4-8
Nashville Metro which operates three
treatment plants with a total average design
capacity exceeding 137 MGD. The collection
system has over 400 miles of combined storm and
sanitary sewers, and 154 bypass points. In 1989
and 1990 Metro bypassed sewage in excess of 28
billion gallons, causing several fish kills. Metro
had chronic violations of its NPDES permits for
Biochemical Oxygen Demand, Total Suspended
Solids, Fecal Coliform, Chlorine, Ammonia,
Settleable Solids, Copper, and Nickel. The
Order required expansion of the plant, abatement
of the combined sewer problem, and remediation
of effluent violations. The Order assessed a civil
penalty in excess of $200,000.
Ocean Dumping Ban Act of 1988 Consent Decrees:
In FY 1989 Region II finalized consent decrees
with nine municipalities which dump sludge in
the ocean, setting compliance schedules for such
dumping to cease pursuant to the Ocean Dumping
Ban Act of 1988. In FY 1990, four of these
municipalities were found to be violating the
decrees. Starting in May, at the Region's request,
DOJ issued several demand letters to Nassau
County, New York, requesting payment of
stipulated penalties for such violations. During
FY 1990, Nassau paid a total of $1.8 million in
such penalties of which half — $900,850 — was
paid to the U.S. and half to the State. Most
importantly, the district court has affirmed the
government's right to these penalties.
Additional demand letters have been sent to
Bergen County, Middlesex County and the
Rahway Valley Utilities Authority for their
violations.
U.S. and Pennsylvania v. Fenntech Papers. Inc.:
Penntech Papers, Inc. owns and operates an
integrated kraft pulp and paper mill located in
Johnsonburg, Elk County, Pennsylvania. The
complaint filed by the United States in this
matter alleges that Penntech violated the Clean
Water Act (CWA), by discharging pollutants
from its mill into the Clairion River (a tributary
of the Allegheny and Ohio Rivers) in excess of
the limitations established in Penntech's
National Pollution Discharge Elimination
System (NPDES) permit. The illegal discharges
from Penntech's mill have presented a potential
for environmental harm and, because drinking
water supplies are drawn downstream from the
facility, potential harm to human health. The
complaint also alleges that Penntech violated
the Resource Conservation and Recovery Act
(RCRA) by discharging corrosive hazardous
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FY1990 Enforcement Accomplishments Report
wastes into a 240-acre surface impoundment
without obtaining a RGRA permit or submitting
the reports related to these discharges. The
consent decree requires Penntech to pay an up-
front penalty of $1,170,000 to the United States
and Pennsylvania for its past violations of the
CWA and RCRA. Penntech is also required to
construct a wastewater treatment plant, to close
the surface impoundment, and to pay stipulated
penalties for future violations of its NPDES
permit. Finally, the United States has obtained
from Willamette Industries, Inc., the parent
corporation of Penntech, a guarantee of
performance of the consent decree. This is the
first instance in which such a guarantee has been
obtained in a CWA or RCRA enforcement action.
U.S. and Pennsylvania v. City of Philadelphia;
Philadelphia owns and operates a sewage
treatment facility located in southwest
Philadelphia ("the Southwest Plant") that
discharges pollutants, pursuant to an NPDES
Permit, into the Delaware River. The Southwest
Plant treats approximately 200 million gallons of
sewage per day, and provides service to
approximately one million people. In its
complaint the United States alleged that
Philadelphia has violated the Clean Water Act
(CWA), since 1984, and in particular the
limitations established in its NPDES permit for
the discharge of pollutants from the Southwest
Plant. The water quality standards established
for the segment of the Delaware River into
which the Southwest Plant discharges have not
been met, in part due to the illegal discharges
from the Southwest Plant. The consent decree
resolving this enforcement action requires
Philadelphia to pay an up-front civil penalty of
$1.5 million. This is the largest civil penalty
that the United States has collected from a
municipality for violations of the CWA. The
penalty is to be paid over a period of two years,
67% to the United States and 33% to
Pennsylvania. The consent decree also requires
Philadelphia to 1) rehabilitate five major
components of the Southwest Plant; 2) retain an
independent consultant to review the City's
rehabilitation program and its operation and
maintenance practices, and then develop an
enforceable schedule of measures that the City
will implement to insure long term compliance
with its NPDES permit by January 1,1991.
U. S. v. Shell Oil Company; On March 26,1990,
the United States District Court for the Northern
District of California approved a consent decree
4-9
valued at over $20 million. This consent decree
settled claims arising out of a 1988 oil spill into a
marsh and slough system and eventually into the
San Francisco Bay Delta (the northern end of the
San Francisco Bay system) from Shell's oil
refining complex in Martinez, California. The
settlement includes the largest recovery to date
for natural resource damages from an oil spill
(over $12 million) and the largest penalty ever
for violations of EPA's SPCC regulations ($2
million). The settlement was the result of
landmark cooperation between 16 public entities
including federal, state and local parties.
On April 22 and 23,1988, Shell spilled over
440,000 gallons of crude oil onto lands and into
waters, including wetlands, when a pipe
connection in an oil holding tank broke and oil
escaped through a drainage valve that had been
left open in violation of EPA's SPCC regulations.
In an aggressive approach to SPCC enforcement,
the Region alleged penalties of $5,000 for each
day that the drain was left open and for other
SPCC violations. With the assistance of NEIC,
the Region developed a case for several years of
such violations and ultimately recovered a $2
million penalty. The settlement also included
$50,000 in penalties for violations of Shell's
NPDES permit.
The spilled oil caused substantial damage
to the environment and natural resources of the
San Francisco Bay Delta, killing many birds and
mammals and destroying important wetlands
habitat. As a result of the Region's efforts to
bring the many public plaintiffs together in a
joint enforcement action, the settlement was able
to address these damages through a Memorandum
of Agreement between the various trustee
agencies. The consent decree also provided that
between the time the decree was lodged and the
time it was entered, all interest on the entire
settlement amount of $19,750,000 would be added
to the trustee's fund to be used for natural resource
restoration. The trustee agencies are now charged
with using the trustees fund of over $12 million to
restore the damaged natural resources.
The settlement also included $2,100,000 for
penalties to the State of California, $500,000 for
local counties penalties, and $3,512,000 for
studies, damages, and cost recovery.
U.S. v. USX Corp. - Gary Works; The successful
settlement of this case marks a turning point in
the history of northwest Indiana's Grand
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FY1990 Enforcement Accomplishments Report
Calumet River. The July 1990 consent decree
commits USX to a $34.1 million package of
environmental improvements and civil penalties.
It is the second decree in which sediment cleanup
has been obtained under the dean Water Act and
it is already influencing negotiations with
similar industries throughout the Nation. USX,
Lorafn, OH, was the first decree of this type. It
provides a framework for significant
environmental improvements and cleanup at the
USX plant and in the river.
In October 1988, the Government filed suit
against USX Gary Works alleging numerous
violations of its wastewater discharge permit.
Region V further alleged that USX illegally
discharged improperly treated wastewater
directly into Lake Michigan and the Grand
Calumet River. In September 1989, there was the
potential for the Gary-Works to be "listed". If
listed, Gary-Works would be banned from any
grants, loans, or contracts with the United States.
Instead, the company negotiated a precedent-
setting agreement with the Government. The
consent decree outlines more than 100 major
compliance steps. Twenty-five million dollars
will be spent to upgrade wastewater treatment
equipment and related facilities. Another $2.5
million will go towards investigating about 12
miles of contaminated sediments; and up to $5
million more may be used to actually clean up
approximately 500,000 cubic yards of sediments
located in a 5-mile stretch near USX property.
USX also will pay a $1.6 million civil penalty.
Clearly, the USX settlement demonstrates
that corporations must bear responsibility for the
ecological damage caused by past violations.
This message was communicated through the
national media coverage the case garnered. The
settlement also received praise from.
environmentalists concerned about the much-
abused Grand Calumet River.
Wetlands Enforcement (§ 404)
Section 404 of the Clean Water Act
regulates the discharge of dredge and fill
material into navigable waters. Enforcement
emphasizes redress for unpermitted discharges in
environmentally sensitive areas and seeks
restoration of or compensation for environmental
damage.
U.S. v. A. B. Charpiot: A civil complaint was
filed in U.S. District Court in Houston, Texas, on
September 26, 1990, against A.B, Charpiot,
David Charpiot, and Charpiot Marina seeking
injunctive relief and civil penalties. Allegations
include continued unauthorized filling of salt
marsh for road construction, parking lot
expansion, creation of minnow ponds, and
disposal of excavated material. Four separate
locations were involved in this activity on
Bolivar Peninsula in Galveston County, Texas.
This case supports the regional wetland
enforcement priorities because it involves high
quality wetlands, current violations by a repeat
violator, and provides support to the Corps of
Engineers' wetland enforcement effort. The
publicity generated by this case (a press
conference, was held with the Department of
Justice when it was filed) will serve as a
deterrent to wetlands violations in an area with
a high concentration of unauthorized activity.
UtS,—v. Construction Industries: In the
Construction Industries case, the Garabedian
Brothers of Salem, New Hampshire, were
alleged to have illegally filled 6.7 acres of
forested and shrub wetlands adjacent to the
Spicket River. Under the settlement, the
defendants restored 6.1 acres of shrub and
emergent wetland and paid a $50,000 penalty.
In the matter of City of Dover. New Hampshire;
Region I focused its wetland enforcement efforts
on geographic areas of concern, particularly
southeastern Massachusetts, the Merrimack
River watershed in New Hampshire and
Massachusetts, and ' metropolitan Hartford,
Connecticut. For example, through
administrative enforcement the Region addressed
the illegal fill of wetlands adjacent to the
Piscataqua River during construction of the Dover,
New Hampshire Wastewater Treatment Plant. A
compliance order required removal of fill and
restoration of the wetland. A Class I penalty
complaint proposed a $25,000 penalty for the
unpermitted activities. The parties, including
the City of Dover, its consultants and construction
contractors, agreed to pay the full $25,000
penalty and completed the restoration. This was
the first time the Region assessed a penalty in a
wetlands case against a consulting engineer and
construction contractors in addition to the owner/
developer of the project.
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FY 1990r Enforcement Accomplishments Report
U.S. v. Charles V. Hanson III; A civil complaint
was, filed in U.S. District Court in Beaumont,
Texas, on September 26, 1990, against Charles
Hansen seeking injunctive relief and civil
penalties. Allegations include : unauthorized
construction of-., a: rock jetty and repeated
unpermitted filling activities in. wetlands,
failure to comply with a Clean Water Act
restoration order, and failure to pay penalties
assessed in that order. The wetlands involved
were located near Keith Lake, Jefferson County,
Texas. This ease supports the regional wetland
enforcement priorities, because it involves high
quality wetlands, current violations by a repeat
violator, and provides support to the Corps of
Engineers' wetland enforcement effort. The
publicity generated by this case (a press
conference was held with the Department of
Justice when, it was filed) will serve as a
deterrent to wetlands violations in an area with
a high concentration of unauthorized activity.
U.S. v. Hobbs - Dorchester. MD;, Qn January 26,
1990, following a two week liability trial, a jury
, found S. Paul and Philip Hobbs liable on
numerous counts of violating the CWA. The
activities conducted by the Hobbses involved
draining, clearing and grading of approximately
100 acres of forested wetlands in the Chesapeake
Bay Watershed for conversion to agricultural use.
The loss of wetlands in the Chesapeake Bay is a
widely recognized environmental problem and an
enforcement priority for EPA. Following a
separate penalty trial on May 21, 1990, District
Court Judge Rebecca Smith ordered the Hobbses to
implement an extensive wetland."restoration plan
priced at over $233,000 arid required the Hobbses
to apply for §404 permits prior to conducting any
further work on any of their wetland properties.
This was a significant decision for the wetlands
prbgrarh. It was widely publicized and sent a
strong deterrent signal in the Southeast Virginia
area, ;::- •'-' ' ";":- ': '•-..-' - -.'.'.•;.;•_•.;•..•;
U.S. v. Kebert Construction Co. Crawford Coy FA;
On October 18, 1989, U.S. District Court Judge
Joseph P. Wilson ordered Kebert Construction Co.
to restore a five acre wetland site arid pay a
$5,000 penalty after Kebert Construction was
found liable by jury for CWA violations. The
Kebert liability trial was the first jury trial ever
in an environmental civil court action.
U.S. v. Town of Manchester, Connecticut; In the
Town of Manchester case, the government had
filed a civil action to address the unpermitted
filling of approximately 4.5 acres of wetlands to
construct a secondary waste water treatment
facility. Under the consent decree> the Town
agreed to pay a $300,000 penalty and restore
approximately 1.5 acres of forested _ wetland.
This is one of the highest penalties ever obtained
by EPA. in a wetlands case.
U.S. v. Marinus Van Leuzen; A civil complaint
; was filed in U.S. District Court in Houston, Texas,
: on September 26, -1990, against Marinus Van
Leuzen and Ronald Hornbeck seeking injunctive
relief and: civil penalties. Allegations include
unauthorized filling of an acre of salt marsh and
residential improvements and violation of a
Clean Water Act cease and desist order. The
wetlands involved were located on Bolivar
Peninsula in Galveston County, Texas. This case
supports the regional wetland enforcement
priorities because it involves high quality
wetlands, current violations by a repeat violator,
and provides support to the Corps of Engineers'
. wetland enforcement, effort. This publicity
generated by this case (a press conference was
held with the Department of Justice when it was
filed) will serve as a deterrent to wetlands
violations in an area with a high concentration of
unauthorized activity,
Safe Drinking Water Act (SDWA)
Enforcement
Public Water Supply Program
(pwss) -, :'...;'.':. .,'::. ,1...:;
Under the PWSS- program, EPA has
established drinking water standards (Maximum
Contaminant Levels, or MCLs) for a variety of
pollutants. FY 1990 Enforcement efforts
emphasize violations of microbiological,
turbidity, VOCs, and - Total Trihalp methane
- (TTHM) standards. , r.
Underground Injection Control
Program (UIC)
The UIC program establishes a regulatory
program for underground injection practices for
five classes of :wells. Enforcement; priorities
include violations at deep hazardous waste and
commercial disposal wells (Class I); violations at
oil and gas wells (Class II); using banned shallow
disposal wells (Class IV); enforcing the
hazardous waste restrictions promulgated under
the Hazardous and Solid Waste Act (HSWA);
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FY1990 Enforcement Accomplishments Report
and enforcing against violations at injection wells
for other than hazardous waste, mining, or oil
and gas (Class V).
In the matter of Aerojet General Corp.; A Final
Administrative Order on Consent was negotiated
with Aerojet General Corp., Rancho Cordova,
CA, and became effective on July 26,1990. Under
the terms of this order, Aerojet paid a $30,000
penalty and will conduct an estimated $2,000,000
waste migration assessment study. The
negotiations were conducted in cooperation with
the California Department of Health Services,
which also issued a parallel State order, without
penalty, to Aerojet Aerojet operated two class IV
injection wells to dispose of over 83 million
gallons of hazardous waste and by-products
generated from the production of rocket fuels.
The wells were drilled to a depth of 1,564 feet
and 1,703 feet, about 500 feet beneath an aquifer
used for drinking water by some residents near the
facility. The drinking water wells are being
monitored and there has not been any indication
of contamination.
U.S. v. Pioneer Exploration Co.; A record civil
penalty of $200,000 in an underground injection
control case will be paid by an independent oil
and gas production company under the terms of a
consent decree lodged June 8 in a federal district
court in Montana.
The Agency agreed to settle the case, filed
in 1988 for violations of regulations governing
underground injection control under The Safe
Drinking Water Act. The case was brought
against Pioneer Exploration Co. and the
corporation's sole officer, director and
shareholder, Younas Chaudhary.
The violations of the SDWA involve oil
and gas production related activities in
northeastern Montana. Under the terms of the
decree, Pioneer agrees to cease underground
injection activity, to plug and abandon five
injection wells within two years of the entry of
the decree, to plug and abandon four production
wells within two years of entry of the decree
unless the wells are returned to production, to pay
stipulated penalties for violations of the decree,
to report to EPA on a regular basis, as required by
the applicable UIC regulations, and to pay a
civil penally of $159,812 within 18 months of the
entry of the decree, or $200,000 plus interest at
10% annually over five years.
The settlement achieved in this case by the
United States is based on the defendant's
consistent violations of the SDWA over several
years, including the use of wells that had failed
to pass mechanical integrity tests, thereby
potentially contaminating underground sources of
drinking water, and conducting unlawful injection
activities.
Pioneer is a small, independent, privately
held oil and gas production company
headquartered in Houston, Texas. The United
States filed a civil complaint on December 12,
1988 against Pioneer, Delta Petroleum and State
Energy for violations of the EPA administered
UIC program for Montana. On January 29, the
United States filed an amended complaint
alleging additional claims against Pioneer and
adding the company's sole officer, director and
shareholder, Mr. Younas Chaudhary, as a
defendant on an alter ego theory.
In the matter of Mobil Oil; On August 27, the
Regional Administrator issued a final order on
consent against Mobil Oil Corporation under the
SDWA's UIC program. The order assessed a
penalty of $35,000, and requires Mobil to properly
close and clean Class V wells at all service
stations Mobil owns and operates in Nassau
County, New York. The case arose out of
violations documented at five such stations, but
the consent order covers some 35 - 50 stations.
Comprehensive Environmental
Response, Compensation, and
Liability Act (CERCLA)
Enforcement (Superfund)
FY 1990 Superfund enforcement reflected
the strategy laid out in the 1989 Superfund
Management Review. The program used
aggressive litigation and settlement negotiation
efforts to secure site response by potentially
responsible parties (PRPs) and to recapture
previously expended Trust Fund revenues. As part
of this approach, the program also increased its
use of unilateral administrative orders,
particularly for information and access, and for
remedial design and remedial action (RD/RA).
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FY1990 Enforcement Accomplishments Report
U.S. v. ACC Chemical Company. Getty Chemical
Company, et al.r In the Matter of ACC Chemical
Company . Getty Chemical Company, et al.. and
In The Matter of Quantum Chemical Company,
Eastern District of Iowa (CERCLA and RCRA);
These administrative cases and the civil case
represent a coordinated, multi-media effort to
address the contamination at this Site. This
CERCLA settlement relates to the groundwater
operable unit at the Chemplex Site located in
Clinton, Iowa. By the terms of the settlement,
the settling defendants are required to remediate
groundwater at the Site to health-based
performance standards and to reimburse the
United States for all past costs associated with
the Site (approximately $600,000) and all
oversight costs associated with this Consent
Decree. The settling defendants are ACC
Chemical Company, Getty Chemical Company,
Getty Oil, Skelly Oil, and Primerica Holdings,
Inc. The property owner defendants are Quantum
Chemical Company, the present lessor, and the
city of Clinton, the present owner. The property
owner defendants are included in the Decree for
purposes of access. In addition, in December 1989,
an Administrative Order on Consent pursuant to
§104 and §122 of CERCLA was issued to ACC
Chemical Company and Getty Chemical
Company for an RI/FS for a second operable unit
at the Site. In addition, a RCRA §3008(h)
Corrective Action Order on Consent was issued to
Quantum Chemical Company (the present lessor)
covering the operating portion of the Site.
In the matter of Agricultural Supply. Inc.; This
case supports EPA's efforts to take prompt
enforcement action to gain access and information
at Superfund sites. In June 1990, U.S. Magistrate
Ayers approved EPA's warrant application to
perform response actions at the Agricultural
Supply, Inc., site in Marsing, Idaho. The site was
formerly operated by an agricultural supplier. As
a result of this operation, several types of
agricultural products, including acids, fertilizers,
pesticides and other hazardous substances, were
left on site. When an exhaustive search failed to
locate the site owner/opera tor, EPA obtained the
warrant which provided for further
investigation of the site and performance of
required removal action, including spilled
product, contaminated soil and the recycling of
agricultural product.
EPA to ALCOA on July 19, 1990. The Order
addressed several separate environmental
problems at and near ALCOA's Riverdale, Iowa,
facility. The AOC calls for a sediment/soil
investigation and feasibility study for on-site
drainage ways and for PCB contamination in
sediments in Mississippi River Pool #15. ALCOA
will also be required to conduct fish sampling and
analysis in Mississippi River Pool #15 to
determine the need to continue the current fish
advisories and to evaluate the risk to public
health and the environment. ALCOA will also
be required to carry out an investigation in regard
to the contamination by PCBs and other VOCs in
the vicinity of the 86" CHT line. If EPA
determines that response actions are necessary
after such investigation, ALCOA is required to
submit a Removal Action Work Plan and, upon
approval, implement such actions. In addition,
for the purpose of identifying past releases of
hazardous substances at the facility and the
extent of contamination by such releases, ALCOA
is required to perform a Facility Site Assessment.
ALCOA is also required to perform an
investigation into contamination caused by
release from a perchloroethylene storage tank
and must submit a Work Plan to implement
removal actions relating to those releases. The
dispute resolution section of the AOC includes an
alternative dispute resolution (ADR) mechanism
for specific issues, if a dispute arises which
cannot be resolved at the Superfund Branch Chief
level. This ADR mechanism involves non-
binding mediation to attempt to resolve disputed
matters. The mediator is to ' be . a noh-
EPA/ALCOA employee whose sole purpose is to
facilitate negotiations between EPA and ALCOA.
Costs of mediation are to be shared equally by
EPA and ALCOA. This AOC is an example of
EPA using its administrative enforcement power
to strengthen enforcement and increase
responsible party work at Superfund sites.
U.S. v. Allied-Signal Inc.: On May 18, 1990,
Allied—Signal agreed to clean up the Bendix
Superfund site in Bridgewater Township,
Pennsylvania.The consent decree requires the
responsible parties to undertake remedial actions
at the site, pay EPA its oversight costs, and uses
innovative technologies in the remedial action.
The settlement supports our preference for having
responsible parties initiate cleanup activities.
In the Matter of Aluminum Company of America Allied will pay the EPA $750,000 in
(ALCOA); An Administrative Order on Consent oversight costs and $92,000 in past response costs.
(AOC) pursuant to GERCLA § 106 was issued by Bendix Flight Systems was a division of Allied
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FY1990 Enforcement Accomplishments Report
and had disposed of its industrial wastes at the
site from the 1950's to the late 1970's. Volatile
organic compounds had contaminated the soil and
ground water in the area. The remedial
activities at the site include soil extraction and
aeration, on-site ground water pumping and
treating, and treatment at each off-site
residential wellhead.
Alsco Anaconda; In 1990, EPA issued an order to
ARCO and Harvard Industries to remove soils
and sludge from the Alsco Anaconda site in
southern Ohio at an estimated cost of $4 million.
The wastes, contaminated with PCBs and FO19,
are in surface impoundments, a sludge pit and
lowland adjacent to the Tuscarawas River. The
order is important because it requires Harvard
Industries, a company claiming immunity due to
bankruptcy, to assist in the cleanup.
In the matter of American Crossarm & Conduit:
On June 1,1990, Region X issued its first unilateral
administrative order pursuant to §104(e) of
CERCLA, requiring compliance with a request for
entry in connection with the American Crossarm
& Conduit site in Chehalis, Washington. EPA
was undertaking a remedial investigation and
feasibility study under CERCLA. When it was
suspected that previous flooding at the site may
have caused contaminants to migrate to adjacent
property, EPA planned to perform soil and
groundwater sampling on approximately 90
parcels of adjacent property. All but one property
owner agreed on consent to EPA access. One owner
refused to provide unconditional access to his
property, insisting upon compensation. As a
result, EPA issued the unilateral order, with
which the owner complied. This case supports
EPA efforts to take prompt enforcement action to
gain access to conduct response activities.
U. S. v. American Greetings Corp.; Two
settlements involving the Pristine Superfund Site
in Reading, OH, one involving 39 settling PRPs
and the other involving 72 de minimis PRPs were
proposed for federal court approval on December
18, 1989. The decision allowing entry of the
settlement is important because it does not further
delay cleanup of the Pristine Superfund site. The
39 PRPs would finance and complete a cleanup at
the site estimated to cost $13.5 million dollars
while the de minimis parties would pay $3.048
million dollars into a trust fund for past and
future cleanup costs. The decrees would also
require payment of 90% of EPA's past costs, or
about $1.8 million dollars.
The 39 PRPs are required to perform
remedial activities that include fencing off the
site, decontaminating and demolishing site
structures, conducting soil excavation and
incineration, investigating the lower aquifer,
constructing a protective cap, and treating
discharges prior to off-site migration.
Innovative technology is being used to remove the
volatile organics in the soil and groundwater.
The state of Ohio objected to the entry of
the Consent Decree between the United States
and the Pristine defendants. Ohio claimed the
decree did not expressly memorialize its rights as
expressed in CERCLA §121. A-hearing was held
on September 9, 1990, at which time the court
stated that CERCLA clearly provided for Ohio's
rights in regard to the settlement between the
United States and Pristine; therefore the decree
itself need not have explicit language regarding
the state's rights.
In the Matter of Arkla Pipeline Station,
Hunnewell. KN: A Consent Order was signed
with Arkla, Inc., operator of a gas pipeline
system, providing for carrying out a removal
action at a former pit at the Hunnewell
Compressor Station site which was contaminated
with volatile organics and, to a lesser degree,
PCBs (the latter in the range of 25-30 ppm). The
Order also provides for investigation and
characterization of the entire compressor station
facility by Arkla after the removal at the pit is
completed. This case is part of the Region VII
pipeline enforcement initiative.
U.S. v. AVX: A press conference was held
September 4, 1990, in Region I to announce a
settlement in principle for $66 million between
plaintiffs EPA, the Commonwealth of
Massachusetts, and NOAA and defendant AVX
Corp., one of the five defendants in the
government's suit for natural resource damages
and response costs at the New Bedford harbor
Superfund site in New Bedford, Massachusetts.
The settlement is one of the largest by a single
defendant in the history of the Superfund
program.
AVX Corp. owned and operated a capacitor
manufacturing plant on the harbor for 26 years
and is responsible for a majority of the PCB
contamination that the plaintiffs seek to remedy.
EPA and DOJ hope to make the settlement final
in the next month. In December 1990, the
plaintiffs lodged a settlement with two other
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FY1990 Enforcement Accomplishments Report
defendants, Aerovox Inc. and Belleville
Industries Inc. for $12.6 million. The plaintiffs
continue to pursue negotiations with the two
remaining defendants, Cornell-Dubilier
Electronics Corp. and its former parent, Federal
Pacific Electric Co.
U.S. v. Beazer East. Inc.. South Cavalcade
SuperfundSite; This case is important because it
supports EPA's effort to increase responsible party
work at Superfund sites and uses innovative
technology to clean-up pollution at the site. This
site was originally a wood preserving facility.
EPA and Beazer East, Inc., signed a Consent
Decree, lodged in Federal District Court on July
30,1990, to remediate contamination problems at
the South Cavalcade Site in Houston, Texas. The
agreement under Sections 106 and 107 of CERCLA
requires remediation of creosote contaminated
soil through the use of soil washing.
Additionally, the agreement restores ninety-six
percent of the Superfund monies expended at the
Site to the Fund with de minimis settlements still
pending for the remainder. Remediation of soil
contamination will reduce the risk of exposure by
contact to approximately 150 persons employed at
businesses operating at the Site.
U.S. v. Bell Petroleum Services: This decision is
significant because it strengthens EPA's ability to
make remedial decisions that EPA deems will
ensure the protection of human health and the
environment. On March 8, 1990, the United
States District Court for the Western District of
Texas granted the United State's motion for
summary judgment for response costs incurred at
the Chromium I Superfund Site in Odessa, Texas.
The court found that alternative water
supplies were not inconsistent with the NCP nor
did it find EPA's indirect costs or legal fees were
inconsistent. In doing so, the court stated EPA's
decision to use an alternative water supply was
not arbitrary or capricious. The court also rejected
the argument that EPA could not recover its
response costs because it had_ not sufficiently
documented the costs. The court held that the cost
regulations required only that the costs be
documented by activity (e.g., RI/FS) and not by
specific tasks within each activity.
In the matter of Big D Campground; On March 27,
1990, a unilateral order was issued to Olin
Chemical Co. for the Big D Campground in
Ashtabula County, OH, which will cost the
company an estimated $39 million. The order
4-15
supports EPA's efforts under its UAO initiative
issued in February 1990 to compel responsible
party action at Superfund sites. The order
requires that Olin, the only generator, clean up
halogenated solvents, caustics, bulk toluene di-
isocyanate and oily substances that were
disposed of in a gravel quarry near the
campground 2.5 miles from Lake Erie.
EPA estimates as many as 5,000 drums are
buried in the landfill. The remedy involves
incineration of the contents of a 1.2 acre landfill
and a groundwater removal system. The
unilateral order is significant because Olin was
allowed to use a total contaminant, risk-based
cleanup level instead of the traditional
contaminant concentration based cleanup levels.
The order allows flexibility for cleanup to a total
risk exposure of 10 to the minus 6 for any number of
chemicals found at a given sampling location
within the landfill, and is specific enough to
make the tasks enforceable. The order is being
complied with and preliminary field work
started in Fall of 1990.
U.S. v. Bliss (Syntex), et al.; This settlement is
the largest mixed work agreement in the Agency's
history. The case involves 28 dioxin sites in
eastern Missouri which became contaminated as a
result of application of dioxin-contaminated
waste oil to parking lots, roads and horse arenas
in the early 1970's. This case has been in
litigation for several years and partial summary
judgment was obtained against Independent
Petrochemical Corporation, Russell Martin Bliss,
Jerry-Russell Bliss, Inc., Northeastern
Pharmaceutical Company, Edwin Michaels and
John Lee in 1985. In 1988, the government filed a
motion for partial summary judgment against two
of the Syntex defendants, Syntex Agribusiness
and Syntex (USA). Settlement negotiations with
the Syntex defendants have been ongoing for quite
some time on a dual track with very aggressive
litigation.
A Consent Decree with the Syntex
defendants, the State of Missouri and the federal
government was entered with the Court on
December 31, 1990. The Consent Decree calls for
Syntex to construct an incinerator capable of
burning dioxin-contaminated soils from all the
sites in the litigation. The incinerator will be
located at the Times Beach Site. In addition,
Syntex must cleanup the Times Beach Site.
Syntex must also accept and burn all. the
contaminated soil from the other 27 sites in the
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FY1990 Enforcement Accomplishments Report
litigation. Syntex must also pay the government
$10 million in past costs. The State of Missouri
will provide access to Syntex since the state will
be the property owner. The state will also
reimburse the United States for its cost share at
the four NPL sites. The federal government is
required to arrange for the transportation of the
dioxin-contaminated soils from the other sites to
the Times Beach Site. Region VII is presently in
the process of initiating negotiations with
several parties who are owners/operators of the
sites where soil and other dioxin-contaminated
material have not been previously excavated.
Agreements will either require the property
owner to excavate the materials themselves and
store it until such time as it can be burned in the
incinerator or to pay the government for the
excavation and transportation to the Times Beach
Site.
During the Public Comment Period on the
Consent Decree, many comments were received. In
addition, the cities of Eureka and Fenton,
Missouri, attempted to prevent the execution of
the Consent Decree by filing a Motion for
Intervention in the six year old case shortly
before the Decree was lodged with the Court.
The Motion for Intervention was disposed of by
the Court in a timely manner with the Court
Stating that the cities of Eureka and Fenton had
adequate opportunity to comment on the actions
required by the Consent Decree and that their
Motion to Intervene was too late. The cities of
Eureka and Fenton have also filed a Citizens'
Suit regarding the actions to be undertaken by all
parties to the Decree. This Consent Decree
represents a comprehensive settlement to the
dioxin problem in eastern Missouri using a
permanent destruction technology, and it is the
largest mixed work agreement in the Agency's
history. The estimated costs of this cleanup are
$190-210 million.
U.S. v. Bourdeaudhui: This case is significant in
being the first case brought by the United States
which alleges that dental wastes are hazardous
substances under CERCLA. It was brought in an
effort to ensure that such substances are handled
properly in the future. On July 12,1990, the court
entered a consent decree in United States y^
Bourdeaudhtii. representing settlement with all
remaining defendants in the amount of $200,000.
Bourdeaudhui involved a removal action at two
related sites in Wellington, Connecticut,
contaminated by the improper handling of waste
dental amalgam. The settling parties included
site owners/operators and generators (dental
supply companies). In total, EPA will have
recovered $429,000 of its $710,000 in response costs
through both administrative and civil
settlements.
In the matter of the Bunker Hill Site. Kellogg.
Idaho.: On May 3,1990, EPA initiated a judicial
action for penalties and injunctive relief against
one of this site's Potentially Responsible Parties
(PRPs), Bunker Hill Limited Partnership, for
that company's failure to respond to an
information request pursuant to §104(e) of
CERCLA. The Bunker Limited Partnership is a
potentially responsible party at the Bunker Hill
Superfund Site, one of the largest Superfund sites
in the country and measuring 21 square miles
within the Silver Valley of northern Idaho. The
complaint seeks an injunction ordering Bunker
Limited to submit the information and documents
EPA requested. It also seeks to have the court
impose civil penalties for Bunker Limited's
failure to respond to the information request. On
June 1,1990, EPA entered into an administrative
order on consent with eight of the Bunker Hill
PRPs, whereby they agreed to pay EPA $3.18
million to conduct a residential area removal
action, involving removal and replacement of
lead contaminated soil from residential yards.
The removal is required to limit children's
exposure to lead, a well-known neurotoxin
harmful to children. The lead contamination was
caused by the Bunker Hill mining and smelting
complex and covers some 21 square miles. EPA had
earlier issued a unilateral order to the PRPs
ordering them to do the work, with the option of
entering into a settlement agreement to pay EPA's
costs of performing the work. The agreement was
the first Superfund "cashout" by Region X and is
significant because it is the first time parties
have agreed to pay EPA for removal work before
it was performed. The final payment under the
agreement was received by EPA in August 1990.
U.S. v. Cannons Engineering: The First Circuit
affirmed the District Court's entry of two consent
decrees. This case sends a message to the PRP
community that challenges to Superfund
settlements will not be favored by the courts. In
recent months, challenges to the entry of CERCLA
settlements by non-settlers have become more
numerous and have resulted in the delayed
implementation of site cleanups. This significant
victory in the United States Court of Appeals
should help discourage future challenges at other
Superfund sites. Prior to proposing these decrees,
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FY1990 Enforcement Accomplishments Report
EPA had entered into administrative de minimis
settlements with 300 PRPs. EPA then entered into
the Major Party Decree (MP) and the De Minimis
Contribution Decree (DMC) at issue in this case.
Under the MP Decree, 47 major PRPs agreed to
perform the remedy at three of the four Cannons
Engineering Corporation Superfund Sites, and to
pay approximately $16 million in past costs.
Under the DMC Decree, 12 de minimis PRPs
agreed to settle their claims, plus pay a penalty
of 100% of their volumetric shares that was
imposed for refusing to join the original
administrative de minimis settlements. Six non-
settling PRPs objected to entry of the Decrees.
These non-settlers had been eligible to join the
administrative de minimis settlements and the
DMC Decree, but had rejected the government's
offers.
In affirming the District Court's decision
entering both decrees, the First Circuit held, inter
alia, that: (1) PRPs identified by EPA as de
minimis were not entitled to participate in the
major party decree and thus could not "pick and
choose which settlements they might prefer to
join;" (2) the government's use of escalating
settlement offers, which rewarded PRPs who
settled sooner rather than later, was fair and
consistent with CERCLA's goal of expediting
hazardous waste cleanups; (3) EPA could use
waste volume to determine comparative fault and
exercise flexibility in allocating liability; and
(4) the decrees did not favor the major parties
over the de minimis parties because the major
parties assumed the open-ended risk of
performing the cleanup at three of the Sites.
U.S. v. Carolina Transformer Co.: In this case, the
defendants failed without sufficient cause to
comply with an EPA administrative order issued
under CERCLA § 106. The court held that the
defendants were responsible for three times EPA's
past and future response costs. As with the
Parsons decision, the case is an important
indicator of EPA's enforcement effort and its
willingness to seek stiff penalties against
responsible parties who do not adequately
respond to an administrative order. On November
13, 1989, The U.S. District Court for the Eastern
District of North Carolina found the defendants
liable for treble damages under CERCLA
§107(c)(3) for failure to comply with the terms of
an Administrative Order issued to the defendants
pursuant to CERCLA §106.
The Carolina Transformer PCB site encompasses
about five acres of land in Cumberland County
near the headwaters of an unnamed tributary of
the Cape Fear River. The defendants, who were
in the business of repairing electrical
transformers and selling rebuilt transformers from
about 1959 to 1984, caused PCB contamination at
the site. EPA issued the §106 order in 1984, and
after the defendants refused to comply, EPA
initiated its removal action. The Agency filed
later filed its complaint seeking recovery of costs
incurred by the United States in responding to the
site and treble damages for failure to comply
with the 106 order. The court found the
defendants jointly and severally liable for three
times EPA's response costs, including those costs
incurred and those to be incurred by the
government during dean up.
U.S. v. Chromalloy American Corp.. et al..
Odessa n Superfund Site; This site was formerly
a tool manufacturing facility in Odessa, Texas.
On June 28, 1990, a Consent Decree was signed
under § 106 of CERCLA requiring the responsible
parties to perform remedial design and remedial
action. Hexavalent chromium has been detected
in ground water used as a source of drinking water.
The concentration of chromium in the
groundwater exceeds drinking water standards.
Remediation under the Consent Decree will result
in provision of an alternate water supply and
source remediation by electrochemical treatment.
The Site is characterized by two plumes of
, groundwater contamination. Divisible harm was
established and applied for liability purposes.
Savings to the Fund as a result of establishing
divisible liability are expected to total $4.7
million.
City Industries Site; The City Industries site is
located on approximately one acre of land in
Winter Park, Florida. In 1977, City Industries,
Inc. developed into a recycling and transfer
facility for hazardous wastes. Due to inadequate
plant practices and intentional dumping, soil and
groundwater at the site became contaminated. In
May 1984, EPA conducted a removal action in
which it heat treated 1,670 tons of contaminated
soil and removed an additional 190 cubic yards
for contaminated soil.
The selected remedy was to pump and treat
contaminated groundwater on-site and then
discharge the groundwater to a publicly-owned
treatment works (POTW). The ROD also selected
a contingency alternative in the event that
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FY1990 Enforcement Accomplishments Report
POTW does not agree to accept the discharge.
The alternative would require on-site treatment
of the groundwater and a surface discharge into a
nearby drainage canal. Special Notice Letters for
RD/RA were issued to approximately 200 PRPs
for the purpose of negotiating a settlement for the
PRPs to finance or perform the RD/RA at the
City Industries site. Because of the prior history
of negotiations with these PRPs to reimburse EPA
for past costs from a removal action the site, the
PRPs were readily able to organize a steering
committee that represents approximately 175 of
the PRPs. EPA has manifests showing the volume
of wastes disposed of at the site by each PRP.
None of the PRPs are responsible for a substantial
amount for the contamination.
As a result of the number of PRPs, and the
volumetric contribution breakdown, the strong
consensus of the PRPs was that they were willing
to finance rather than perform the RD/RA. The
Region agreed that under the circumstances of
this case it would be more cost effective and
efficient if EPA performed the RD/RA. This is
the first "RD/RA" Consent Decree in the country
wherein the Defendants will fund rather than
perform the cleanup of the site. The consent
Decree was structured so that EPA was assured
for 100% non-interrupted funding of the RA. Two
of the vehicles for accomplishing this purpose
wore a private "Custody Account" set up and
funded by the Defendants and an EPA "Special
Account" which will be funded by the "Custody
Account." The Consent Decree also contains
provisions and formulas which allow over one
hundred Defendants to elect to "cashout" as de
minimis Defendants or to share the continued
liabilities and obligations of the Non-De-
Mimimis Defendants.
U.S. v. Clean Harbors of Natick: This decision
reinforces EPA's ability to take swift enforcement
action under CERCLA and precludes PRPs from
delaying compliance with an EPA order. On July
12, 1990, the Defendants' Motion for Temporary
Restraining Order and Preliminary Injunction
seeking to enjoin enforcement of EPA's
administrative order issued under §106(a) of
CERCLA was denied in the United States
District Court for the District of New
Hampshire. The United States had previously
filed a CERCLA §107 action against defendants
Interex Corporation and Ethan Allen for the
Keefe Environmental Services Site in Epping,
New Hampshire. Following an unsuccessful
negotiations period, ^the U.S. issued the §106(a)
order on June 12,1990. The Magistrate found that
granting the motion for injunctive relief would
result in pre-enforcement review, which is not
appropriate in the CERCLA context. The
Magistrate stated that the movant can attack
the §106(a) order in a later judicial proceeding (if
brought to enforce the order) and if "the movants'
basis for attacking the §106(a) order are valid
now, they will be valid then."
Colorado v. Idarado Mining Co.; The Superfund
law does not create an explicit right to injunctive
relief for the States, a federal appeals court
ruled October 11,1990. The United States Court of
Appeals for the Tenth Circuit issued an opinion
which vacated two injunctions granted to the
State of Colorado for activities on the Idarado
mining site, located between the towns of
Telluride and Ouray in southwestern Colorado.
These injunctions, granted by Judge Carrigan in
the District Court for the District of Colorado on
Feb. 22, 1989, imposed a modified State cleanup
plan on the defendants and required them to pay
the permanent relocation costs of tenants on the
property.
The United States filed a
friend-of-the-court brief seeking to overturn the
District Court's ruling. The court agreed with the
United States' argument that the State was not
entitled to injunctive relief under CERCLA
§121(e)(2).
U.S. v. ConraiL Sealand. Ltd. Site. Mt. Pleasant.
DE: Fourteen defendants agreed to reimburse the
government $1.3 million for past response costs as
part of a consent decree entered Jan. 30, 1990, by
the U.S. District Court for the District of ,
Delaware. EPA retains the right under the decree
to bring suit against any and all the PRPs for
recovery of any and all costs incurred after Dec.
31, 1988. The settling defendants include: The
Washington Post Co., Globe Newspaper Co., The
Times Journal Co./Army Times, Conrail,
Philadelphia Gas Works, and the Public Service
Electric and Gas Co.
U.S. v. Cordova Chemical Co.: A unilateral
administrative order was issued on March 12,
1990, to begin site remediation at the
Ott/Story/Cordova Facility in North Muskegon,
Michigan. The order, which applies to all
defendants jointly and severally, is for
implementation of an operable unit to intercept
and treat contaminated groundwater discharging
into a nearby creek. The point of discharge into
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FY1990 Enforcement Accomplishments Report
the creek is within 2/10ths of a mile from a
residential area. The operable unit will abate
some of the principal threats of contaminations
via contact with the contaminated surface water
and inhalation of volatile organics.
In the Matter of Custom Industrial Services, Inc.;
U.S. v. Alcan Foil Products, et ah; and U.S. v.
Robinson Industries. Inc.. et al.: The Custom
Industrial Services Site in Shelby County,
Kentucky is comprised of three distinct parcels of
property. The now-defunct operator of the Site
used the three properties in its solvent
reclamation business from 1974 until 1988, when
the Site was abandoned with approximately
2000 drums of hazardous waste. At the request of
the Commonwealth of Kentucky, EPA conducted
an emergency removal action at the Site
beginning in January 1989. EPA identified 236
PRPs at the Site from documentation recovered
from the operator, from state RCRA records, from
responses to EPA information request letters, and
from interviews. From such records, EPA
prepared a volumetric ranking of hazardous
waste sent to the Site by generators since 1975. In
January 1990, EPA entered into an Administrative
order on Consent With the landowner of the
Simpsonville Warehouse (one of the three
parcels of property comprising the Site), the
landowner's lessee and one generator, for the
conduct of the removal action at the portion of
the Site, thereby saving the Agency
approximately $200,000. The remaining case was
referred to the Department of Justice in March
1990 for collection of the 1.6 million in costs
incurred by the United States at the Site. In
January 1991, EPA executed a • de minimis
Administrative Order on Consent with all 199
eligible de minimis generators at the Site. Under
this administrative settlement, the United
States will recover $418,945 or 26% of the total
costs. Approval of the de minimis settlement is
currently before the Department of Justice, as
required in CERCLA Section 122(q)(4). In January
1991, after several months of negotiation between
the remaining PRPs and EPA, EPA also executed a
Consent Decree with 34 parties, including large
generators, operators, landowners, a broker and a
transporter, for the recovery of ,$821,550
(including interest) or approximately 50% of the
costs incurred at the Site. EPA simultaneously
executed a Consent Decree with the three parties
associated with the Simpsonville Warehouse
portion of the Site for the collection of $223,481
(including interest) or approximately 14% of the
total costs. The two Consent Decrees are currently
before the Department of Justice for review and
filing. EPA and the Department of Justice intend
to pursue the only two recalcitrant PRPs for the
remaining 10% of the costs incurred at the Site.
In the matter of the Denver Toluene Site.:
Severely contaminated groundwater and soil
underlay the surface at the Unocal Petrochemical
Distribution Center facility in Denver, as well as
the land to the north and west of the facility. A
Unilateral Administrative Order was issued to
Unocal Corporation in December 1988, to install
recovery wells designed to recover the
contaminated groundwater for treatment, and
construct an on-site treatment plant designed to
treat and clean the ground water to EPA Drinking
Water Standards. Unocal Corporation continues
to recover and treat contaminated groundwater
from the Site under oversight of EPA. Plans are
currently underway to address the contaminated
soils at the Unocal facility in the near future. It
is estimated that it will cost the PRPs
approximately $10 million to complete cleanup of
the site. On June 12,1990, EPA issued a demand
for a portion of the past costs incurred, in the
amount of $265,687.18. On August 6, 1990, EPA
received full payment from the PRPs. August 22,
1990, EPA issued a second demand letter for the
remainder of the past costs in the amount of
$98,007.69. EPA has yet to hear from the PRPs
regarding the second demand for payment.
U.S. v. Distler: In this case, a successor
corporation that had acquired substantially all
of its predecessor's assets was held liable for the
predecessor's improper disposal of hazardous
substances. The case supports our overall strategy
to recover our response costs from liable and
viable parties. Based on the decision, similarly
positioned responsible parties may be more
inclined to settle rather than to litigate their
liability.
EPA brought a CERCLA §107 action against
the successor corporation for response costs
incurred in cleaning up two hazardous waste sites
in Jefferson County and Hardin County, Kentucky.
The district court held that CERCLA's remedial
purpose required that responsible parties, not the
taxpayer, pay for hazardous waste cleanups. It
noted that CERCLA requires the development of
a federal common law to supplement CERCLA
liability for successor corporations. The case is
significant because the court found the successor
liable under CERCLA based on the substantial
continuity theory which is a less rigorous
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FY1990 Enforcement Accomplishments Report
standard of corporate liability. It is the second
CERCLA case to use this theory.
An important point is the way the court
framed the issue of liability: "The issue is...one
of [CERCLA law]: does a manufacturer's
responsibility for its [hazardous waste] survive a
change in ownership, where the manufacturing
business, as such, maintains its identity and
continues to operate as before....'7 Under this
broad liability scheme, the court had no
difficulty in finding the successor corporation
liable in this instance because the successor had
operated out of the same physical facilities as its
predecessor, had produced the same product line,
had held itself out to the public as the same
company, had retained the same operating assets
and had succeeded to all liabilities necessary for
a smooth transition of ownership.
U.S. vs. Puponh et.al. (Lorentz Barrel & Drum):
On July 6,1990, the United States District Court
for the District of California approved a
settlement valued at $6 million with eleven (11)
companies for the Lorentz Barrel and Drum
Superfund site. The settlement was jointly
negotiated by EPA and the Department of Justice
and requires the companies to design, construct
and operate a ground water extraction and
treatment system to clean up contaminated ground
water at the site. Lorentz Barrel and Drum was a
drum recycling facility that operated for
approximately forty years until 1987 when it was
closed permanently by the State of California.
Drums containing chemical residues were sent to
the site for refurbishing and resale. Operations
at the site resulted in the contamination of soil
and ground water with industrial solvents,
pesticides, PCBs, and other hazardous substances.
The potentially responsible parties (PRPs) who
participated in the settlement are generators of
hazardous wastes who shipped drums to the site.
U.S.v. Fairchild Industries. Inc.; Fairchild
Industries and Cumberland Cement & Supply Co.
agreed to pay $1.7 million under the terms of a
consent decree for the Limestone Road Site in
Cumberland, Md. entered February 28, 1990, by
the U.S. District Court for the District of
Maryland. The decree settles certain of the
government's claims under §106 and §107 of
CERCLA. The State of Maryland is also a party
to this decree. Maryland had successfully
opposed entry of an earlier consent decree between
the U.S. and Fairchild and Cumberland Cement
on the grounds that the decree did not explicitly
provide the state with the review and comment
authority provided in CERCLA §121(f). The
United States and the State retain actions
against Fairchild, Cumberland and four other
PRPs for the recovery of costs incurred prior to the
entry of the consent decree.
U.S. v. Fleet Factors: In this case, a secured
creditor was held liable under CERCLA because
it participated in the financial and operational
management of the facility. The case supports
EPA's priority of recovering costs from responsible
parties and notifies lenders that they should act
prudently in the first instance when making loans
to third parties and also upon discovering
contamination of the collateral.
In the case, a factoring arrangement was set
up between the defendant creditor and
Swainsboro Print Works (SPW), a print clothing
facility. Fleet Factors advanced funds while
retaining a security interest in SPW's accounts
receivable. It stopped the advances when SPWs
debt exceeded its collateral, but continued to
collect funds under the accounts and eventually
foreclosed on some of SPWs inventory and
equipment. Fleet required SPW to seek approval
before shipping goods, determined when
employees should be laid off, established prices
for excess inventory, received and processed tax
forms and supervised the activity of the office
administrator.
The court found Fleet liable under CERCLA
§107(a)(2) as an owner or operator of the facility
at the time the hazardous substances were
disposed. In doing so, the court stated a secured
creditor is liable "if its involvement with the
management of the facility is sufficiently broad
to support the inference that it could affect
hazardous waste disposal decisions if it so
chose." Although the courts holding was broad,
on the facts of the case it was clear that Fleet
Factors was participating in the management of
the facility.
The court's holding is significant because it
has expanded EPA's ability to seek
reimbursement for response costs. The case
notifies secured creditors that they must be
prudent and responsible in their lending
activities with third parties.
U.S. v. French Limited. French Limited Superfund
Site: This site was formerly a commercial waste
disposal facility. A Consent Decree under §§106
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FY1990 Enforcement Accomplishments Report
and 107 of CERCLA was entered into Federal
Court on March 7, 1990. However, so as not to
wait for the long term remedy to alleviate the
primary threats posed by the site, actions were
taken under an Administrative Order on Consent
to build a floodwall and move offsite
contamination back on site. These actions
eliminated the threat of exposure to some 250
families living in the Riverdale subdivision of
Crosby, Texas.
Fulton Terminals; In September Region II and 59
PRPs for this New York site signed a consent
decree pursuant to which the PRPs will
implement EPA's selected remedy for the Site and
reimburse EPA $500,000, a portion of EPA's past
costs. The settlors are also obliged to pay EPA's
oversight costs up to and including the first two
years of operation of the ground water pump-and-
treat system specified in the ROD. EPA may, in
the future, seek the unreimbursed portion of its
past costs from the non-settling PRPs, and may
also seek any RD/RA oversight costs not covered
by the consent decree from the non-settlors or
certain of the settling defendants. This is
another example of Region II's application of the
Agency's Settlement Incentives/Disincentives
guidance. This case is also noteworthy for the
speed with which the consent decree was
negotiated. The decree was signed by the PRPs
only three months after issuance of the notice
letter for the RD/RA, and only three weeks after
the broad terms of the settlement were agreed
upon.
In the Matter of General Electric (CERCLA/
EPCRA); In June 1990, EPA issued an EPCRA/
CERCLA penalty policy. The following case was
based on the policy and supports our national
priority of ensuring that failure to report releases
of toxic or hazardous substances will result in
swift and harsh penalties against the
non-notifier.
The case is significant for a number of
reasons. First, it is the first major case from our
June "coast to coast" EPCRA-CERCLA filing
initiative to be settled. Second, it represents a
very modest reduction in the proposed $100,000
penalty. Third, given the small quantity of
material released, the penalty helps to
underscore the importance of timely reporting of
toxic or hazardous chemical releases and spills to
EPA and our state and local response agencies.
On August 9,1990, the EPA signed a consent
agreement and final order with General Electric
Company. The company was cited for failure to
report to federal, state, and local agencies the
release of hazardous substances into the
environment. Under CERCLA §103 and EPCRA
§304, facilities that accidentally release
hazardous substances into the environment above
a certain quantity .must report the release.
General Electric had released between 5-8 pounds
of PCB-based cooling liquid and failed to report
its occurrence. This failure resulted in General
Electric paying a penalty of $90,000.
Gonic Drum Dump Site Removal Cost Recovery
Trial; This litigation demonstrated that Region I
will pursue removal cost recovery cases to closure
and will pursue parties who fail to respond to
discovery in CERCLA cases. The Region also
obtained a precedential ruling that a trustee of a
real estate trust may be personally liable for the
actions of the trust if state law provides no
limitation on the liability of such trustees. In
August, 1990, EPA and the Department of Justice
conducted a trial seeking recovery of costs
expended at the Gonic Drum Dump Site in Gonic,
New Hampshire. Aggressive prosecution of the
government's liability claims had previously
resulted in findings of liability against all
defendants. In June, 1990, the government
obtained a default judgment against William
Burns, the operator of the Site, for his refusal to
cooperate with discovery and his failure to
appear at the hearing on the motion for default
judgment. In August, 1990, the government won a
motion for summary judgment establishing
liability for the remaining two PRPs, the Gonic
Realty Trust and its trustee. The Region expects a
ruling on costs at any time.
U.S. v. Gurley Refining Co.. Gurley Pits Superfund
Site: This was the site of a waste oil refining
facility. EPA issued a Unilateral Administrative
Order under §106 of CERCLA to responsible
parties for the Gurley Pits Site in West Memphis,
Arkansas. The Order, effective January 5, 1990
requires the responsible parties to implement a
remedy solidifying refinery wastes and
redepositing it into a RCRA vault and treating
surface water. Litigation is proceeding on a prior
complaint filed under §107 for cost recovery, and
the responsible parties have failed to comply
with the Order. Issuance of the Order follows
EPA policy for aggressive enforcement to expedite
action and establish liability.
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FY1990 Enforcement Accomplishments Report
Iron Mountain Mine: On April 9, 1990, Rhone-
Poulenc Basic Chemicals agreed to comply with
Region IV's March 25, 1990 unilateral
Administrative order (UAO) to construct the $5
million Upper Spring Creek Diversion component
of the Iron Mountain Mine interim remedial
action. EPA issued the UAO to Rhone-Poulenc
and other PRPs at Iron Mountain after EPA failed
to receive a good faith offer to its January 26,1990
General Notice and draft consent decree. ICI
Americas, Inc. under an agreement with Rhone-
Poulenc, commenced construction of the diversion
in July of this year, and is expected to be
completed by December 31, 1990, weather
permitting.
On August 31,1990, EPA issued a letter to Rhone-
Poulenc which activated provisions of EPA's
order 89-18, issued on August 15,1989, requiring
treatment of acid mine drainage releases from
portions of the Iron Mountain site during the
upcoming critical fishery conditions of the 1990-
91 wet season. ICI Americas, Inc., on behalf of
Rhone-Poulenc, agreed to comply with the order.
Reactivation of the treatment plant and
operation of the plant in compliance with the
order is expected to cost approximately $1
million this year.
U.S. v. Johns-Manville Sales Corporation; The
amount of civil penalty and costs in this
settlement informs the regulated community that
the Agency does not ignore consent decree
viola lions, and will make the PRPs reimburse the
Government's for the costs incurred in prosecution.
On September 13,1990, a U.S. district court judge
signed a stipulation and order of dismissal that
resolved the United States' first lawsuit against
a PRP for violating a consent decree under
CERCLA §109(c). The United States alleged that
Manville was liable for a civil penalty because it
violated the RD/RA consent decree. The action
also contained a CERCLA claim for
reimbursement of the costs of enforcing the consent
decree. According to the terms of the settlement,
Manville was required to pay a $95,000 civil
penalty and $70,000 in response costs, totaling
$165,000.
In the matter of I. Tones Recycling Site; On
October 25, 1989, EPA signed a de minimis
administrative settlement under which 139 PRPs
at the I. Jones' Clinton Street site in Fort Wayne,
IN, paid more than $2.17 million into Superfund.
This is EPA's first settlement that recovers money
to resolve potential liability for statutory
penalties for noncompliance with a unilateral
removal order. Of the total, $1,888,326
reimbursed EPA for a portion of its $3.3 million
response costs and $283,712 was the settlement of
potential liability for penalties. EPA had
performed the first phases of removal activity at
the site in 1986 and 1987 while it analyzed site
records to identify generator PRPs at the
abandoned RCRA facility.
In July 1988, EPA issued a unilateral order.
for completion of the removal to about 300 PRPs.
Among other things, this order required removal
of contaminated soil and tank sludge and
decontamination of buildings and debris. More
than 125 PRPs complied with the order and
completed the removal in August 1989 at a cost of
more than $5 million. Some who settled had not
initially complied with the unilateral order,
requiring them to resolve their potential penalty
liability before settlement. EPA is about to
propose another administrative settlement to
non-de minimis parties to try to recover more of
its response costs. EPA also signed an
administrative consent order with 31 PRPs in
November 1989 for a smaller removal action at a
related I. Jones facility on Covington Road in Fort
Wayne. At that site, EPA brought suit and won
access in December 1989.
U. S. v. Kayser-Roth Corp.; In this case, a parent
corporation that had exerted practical total
influence and control over its subsidiary was held
liable as an operator for the subsidiary's release
of hazardous substances. This case is important
not only because it supports our enforcement effort,
but because it requires parent corporations to
ensure that an actively controlled subsidiary is
operating in an environmentally responsible
manner. Otherwise, the parent will also be
responsible for the subsidiary's actions.
In October, 1989, Region I won a judgment in
district court for all past and future remedial
costs against Kayser-Roth based on its ownership
and control of Stamina Mills. The First Circuit on
August 2, 1990 affirmed the district court's
decision that Kayser-Roth Corporation exercised
almost total control over its wholly owned
subsidiary, and therefore was an "operator" under
§ CERCLA 107(a)(4) at the time of a 1979 spill of
trichloroethylene (TCE) at the Stamina Mills
textile plant in Forrestdale, Rhode Island.
The court rejected Kayser-Roth's argument
that a parent corporation cannot be held liable as
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FY1990 Enforcement Accomplishments Report
an operator under CERCLA, and held that
Kayser-Roth was liable based on a direct
liability theory under CERCLA. The Court
stated that mere complete ownership and a
general authority or ability to control were
insufficient to hold a parent liable, requiring
instead active participation in the activities of
the subsidiary. Moreover, the Court noted that
even though indicia of ability to control decisions
about hazardous waste are indicative of the type
of control necessary to hold a parent liable, they
are not essential assuming other indicia of
pervasive control are present. The court also
pointed out Kayser-Roth could not use a third
party defense because: (1) Kayser-Roth was an
operator at the time of the spill; and (2) the
third party was in contractual relationship with
the corporation. In addition, the court stated
that CERCLA is a strict liability statute and
therefore Kayser-Roth's assertion of
blamelessness in causing the TCE spill was
irrelevant.
The First Circuit's decision bolsters EPA's
enforcement effort by finding Kayser Corporation
directly liable as an operator under CERCLA in a
precedent setting case on parent liability.
Kellogg Peering Site Settlement; Region I
negotiated a consent decree for remedial design
and remedial action and the payment of past and
future oversight costs with four potentially
responsible parties at the Kellogg Deering Well
Field Site in Norwalk, Connecticut. Under the
terms of the agreement, the parties will
implement the second operable unit Record of
Decision for the Site which calls for a source
control remedy consisting of soil vapor extraction
and a management of migration remedy that
requires pumping and treating groundwater until
it reaches drinking water standards. The dollar
value of the agreement is estimated to be
$10,800,000.
U.S. v. Koppers: In this instance, a responsible
party was penalized for not complying in a
timely manner with an Administrative Order on
Consent issued in 1986. The consent decree was one
of the first CERCLA settlements incorporating
penalties for noncompliance with a §106 consent
order. The penalties support our national
enforcement effort by showing EPA's diligence in
ensuring that responsible parties comply with
the terms of our agreements. The Koppers
Company, Inc. agreed to pay $1,050,000 in
response and oversight costs, and $50,000 in
stipulated penalties, in a CERCLA §106 and §107
consent decree entered August 16,1990 in the U.S.
District Court for the Eastern District of
California.
The decree resolves costs incurred at the
Koppers-Oroville, California NPL site through
March 31,1988, but preserves EPA's right to seek
response and oversight costs incurred after that
date. Koppers also agreed to pay $50,000
stipulated penalties for reports not timely
submitted under a §106 administrative order on
consent.
U.S. v. Laskin: The United States filed its motion
for entry of a consent decree in the second of three
cases concerning the Laskin/Poplar Oil NPL site
in Jefferson, Ohio. The settlement provides
reimbursement of $1.38 million in past response
costs, the first $350,000 in future oversight costs to
be incurred by EPA, and oversight costs that
exceed $1.75 million. A complaint to recover
amounts not included under the consent decree was
filed October 19,1990 against about 50 PRPs.
"Laskin IT was filed on March 19, with the
lodging of a Consent Decree for RD/RA with 158
settling PRPs. Public comment was noticed in the
Federal Register on April 2. Twenty-seven of the
settling parties agreed to implement RD/RA and
pay a portion of past and future response costs.
The site remedy consists of construction of a
ground water diversion trench, thermal treatment
of certain materials, and consolidation and
capping of other contaminated soils. Site
maintenance costs estimated to be as much as $2.4
million will also be the responsibility of the
settling defendants. 129 of the settling parties
are de minimis generators who are "cashing out"
by paying a volumetric share of cleanup costs,
plus a premium, to the United States and to
settling defendants.
The site owners, Mr. and Mrs. Alvin Laskin,
are settling by agreeing to provide access to the
site and to place certain restrictions on alienation
of their property, the Laskin/Poplar Oil NPL
site. The settling parties are funding relocation
of the Laskins, who have agreed to the
demolition of their home located on the site.
U.S. v. Liquid Disposal, Inc.; A December 1989
consent decree required 41 settling defendants to
carry out an estimated $22.4 million cleanup at
the Liquid Disposal Inc. (LDI) Site in Utica, MI
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/•Y J990 Enforcement Accomplishments Report
(in the U.S. v. BASF civil action). In addition,
the consent decree requires establishment of a
$15 million trust fund for future remedial work.
The defendants also must pay EPA's oversight
costs, and reimburse the Government for a portion
of its past costs. The consent decree also includes a
settlement with 495 de minimis defendants.
Under the terms of the BASF consent
decree, the United States recovered $1.96
million, which is only part of the LDI site costs.
In December 1989, EPA offered a second de
minimis settlement to eligible potentially
responsible parties (PRPs). Approximately 115
PRPs signed this $1.1 million consent decree (U.S.
v. A N Reitzloff. et al.) to be applied to costs
incurred at the LDI Site. The Reitzloff consent
decree was entered by the court on August 30,1990.
In U.S. v. Ivey. the United States took
further action to recover costs and filed a
complaint against the former LDI president, a
Canadian resident; the vice president of LDI; two
Canadian corporations as owners and operators;
and nine corporations who were
generator/transporters of waste. On September 9,
1990, a partial consent decree resolving the
liability of three de minimis generator
defendants was lodged with about $600,000 to be
applied to past costs. The Canadian defendants
filed a motion to dismiss for lack of personal
jurisdiction, which was denied by the court on
August 13, 1990. The court held that although
CERCLA does not expressly provide for service of
process over defendants from a foreign country,
the defendants had sufficient contacts with the
State of Michigan to confer jurisdiction under the
Michigan long-arm statute.
Lone Pine; On March 5, 1990, the New Jersey
District Court entered the $40 million Lone Pine
remedial consent decree which had been lodged
in August, 1989. Seventeen PRP non-settlors had
opposed the settlement when it was lodged by
commenting, then by moving the court for
intervention (granted over the government's
opposition), and by briefs and oral arguments
attempting to persuade the court that the
settlement was "unfair" to them and should be
rejected. The court found their claims
"meritless." Because they failed to settle, EPA
sued these 17 companies in October, 1989, for
approximately $4.9 million in response costs not
recovered in the settlement. By the end of
FY1990,16 of those firms had concluded a second
round settlement in principle, providing for
payment of $4.4 million.
U.S. v. Mattiace et al. ; This settlement has
precedential value since the insurers for one of
the defendants agreed to pay more in settlement
costs that the stated policy limits of that
defendant's general liability insurance coverage.
On September 28, 1990, EPA referred a consent
decree settling this case. The case arose out of a
1982 spill of methyl ethyl ketone (MEK). EPA
had issued administrative removal orders to five
PRPs, none of which complied with them. EPA
performed the removal, incurring nearly $1
million in costs. The settlement, which followed
some two years of extensive discovery and motion
practice, provides that the PRPs will pay $1.7
million. Of this, about $1.35 million is cost
recovery (the figure includes interest), and a
further $350,000 in penalties.
U. S. v. Sidney Mathis. et al.: In this instance,
property owners refused access to EPA or its
designated representative and precluded the
completion of planned response activities at a
hazardous waste site. The court granted the
EPA's request for access. The decision supports our
initiative to take prompt enforcement action
against recalcitrant parties and provides an
example of EPA taking immediate action to
initiate response activities. On December 29,
1989, the U.S. District Court for the Northern
"District of Georgia granted the government's
Motion for an Immediate Order in Aid of Access,
pursuant to CERCLA § 104(e)(5).
The defendants are property owners of part
of the South Marble Top Road Landfill Site in
Walker County, Georgia. They repeatedly
refused attempts by EPA's designated
representative to negotiate access agreements and
refused to respond to EPA's subsequent attempts to
negotiate. After the attempts failed, the
government filed its motion. The order gave EPA
and its representative unimpeded access to the
defendants' property to conduct a Remedial
Investigation and Feasibility Study and any
subsequent remedial measures. The order also
enjoins the defendants from obstructing or
interfering with EPA's activities at the site.
U.S. v. R.W.Meyer. Inc.; The case supports EPA's
effort to recover all response costs from
responsible parties. The decision should
encourage PRPs to undertake remedial activities
at more Superfund sites because of EPA's success in
recovering all its response costs from PRPs.
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FY1990 Enfor-cement Accomplishments Report
On November 20, 1989, the Sixth Circuit
affirmed the district court's grant of summary
judgment in favor of the United States on the
issue of costs in the case of United States v.
Northernaire Plating Company. The appellant,
R.W. Meyer, challenged the decision on four
grounds: (1) indirect costs of the government are
not recoverable under CERCLA; (2) prejudgment
interest should not apply retroactively; (3) the
defendants were not jointly and severally liable
under CERCLA; and (4) numerous issues of
material fact remained.
The appeals court stated that "indirect
costs are part and parcel of all costs of the
removal action [and]...are attributable to [a]
cleanup site in that they represent the portion of
EPA's overhead expenses that supported the
government's response action on Meyer's
property.". The court also stated that no manifest
injustice would result by applying SARA
retroactively in this instance, that the harm was
indivisible and therefore joint and several
liability was appropriate, and that the
appellant had failed to raise any genuine issues
of material fact.
On March 3, 1990, the Supreme Court
denied R.W.Meyer's petition for certiorari, and
stated it would not consider a dispute concerning
the federal government's right to recover the
"indirect costs" of running a Superfund site when
it sues responsible parties.
In the matter of Midwest Solvent Recovery, et al.t
In December 1989 administrative orders were
issued to PRPs for the Midco I and the Midco II
sites in Gary, IN, mandating compliance with
RODs, which required groundwater and soil clean
up at the former solvent recycling and disposal
sites. Because the PRPs did not comply with the
orders, EPA filed an amended complaint in
January 1990. An October 1990 court ruling
enhances the likelihood that the orders will be
upheld. If the case goes to trial as scheduled in
May 1991, it will be one of the Nation's first to
test EPA's interpretation of issues such as record
review, liability and costs.
Mid-State Disposal, Inc.; A March 1990 consent
decree required PRPs to perform the Remedial
Design/Remedial Action, estimated to cost $19
million, and to pay EPA and the State of
Wisconsin for oversight costs. The cleanup work
will be performed by generators Weyerhaeuser
Co., Felker Brothers Corp., Steel-King Industries,
4-25
Inc., and owner/ operator Mid-State Disposal,
Inc. at the Mid-State Disposal NPL Site. A May
1990 court decision reaffirmed the decree by
denying Wick Building Systems, Inc., and the
Central Wisconsin Communities motions to
intervene, vacate, and reconsider the decree. The
decision is favorable to EPA because it limits
challenges 'to negotiated consent decrees and
postponement of cleanup. The 4 settling
defendants will install soil and clay caps over 3
waste disposal units, construct an alternate water
supply for residents surrounding the site, collect
leachate, monitor ground- and surface water, and
collect, vent, monitor and flare landfill gas. Past
costs of $1.25 million were not resolved in this
decree; the Agency reserves the right to seek
these past costs from non-settling parties.
In the matter of Monsanto, et al.. Motco Superfund
Site; This site was originally a purported
recycling facility for styrene tars and where large
quantities of hazardous substances were placed in
impoundments. After negotiations with the
Potentially Responsible Parties stalled on issues
concerning apportionment of liability for the
groundwater operable unit, the EPA issued a
Unilateral Administrative Order under §106(a)
of CERCLA to responsible parties. The order
required that an engineering design for the source-
control remedy be formulated. The responsible
parties are complying with the order, thereby
avoiding further delays to implement the
remedy. Implementation of the remedy will
result in the recovery of contaminated
groundwater and treatment. Contaminated
groundwater beneath the site poses a threat of
contamination to a drinking water source.
Contamination at this site near La Marque, Texas,
results from twenty years of recycling and storage
operations contributing to releases of organic
pollutants, metals and PCBs.
U.S. v. Harold Murtha; The consent decree,
which was lodged with the U.S. District Court
for the District of Connecticut on February 20,
1990, supports EPA's effort to have responsible
parties either perform or pay for response actions.
In this instance, EPA will be reimbursed for past
costs and the agreement will also fund remedial
activities. This Consent Decree requires the
defendants to pay $5.375 million as
reimbursement for past and future costs at the
Beacon Heights Landfill Superfund Site, Beacon
Falls, Connecticut, and Laurel Park, Inc.
Superfund Site, Naugatuck, Connecticut.
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FY1990 Enfor-cement Accomplishments Report
The settlement involves a payment by the
Murtha entities of half their combined total net
worth, estimated to be approximately $10.8
million. The settlement also includes a number of
non-monetary obligations on the part of the
defendants, including providing full and
unrestricted access to both sites, cooperating in
obtaining all permits necessary for the
performance of remedial actions, and a dismissal
of claims against the United States Government
entities. The primary environmental problem at
the sites are contamination of groundwater and
surface water by leachate flow. The planned
remedial actions consist generally of constructing
an impermeable cap and collecting and treating
the leachate.
In_the matter of National Pin Service: On
September 14, 1990, EPA issued a Unilateral
Administrative Order under §106 (a) of CERCLA
to the former operators and the current owner of
the National Pin Service Site in Wilson County,
North Carolina. The Order requires the
Respondents will conduct the emergency removal
action at the site. The removal action will entail
restricting access to the site, conducting an
inventory and disposing of all drummed
hazardous material, and sampling and
excavating surrounding soils.
National Pin Service was a business which
manufactured blowing equipment on the site. The
facility closed in November 1989. The site
contains two lagoons of unknown purpose and
numerous drums and container labeled as
containing various chemicals, most of which are
believed by the On-Scene Coordinator to be
solvents. The North Carolina Department of
Health and Natural Resources attempted over a
period of two years to have the operator and
owner of the property assess the contamination at
the site and perform drum disposal and soil
remediation. After failure to obtain compliance
with its Orders, the State requested EPA
assistance in August 1990. EPA and the State
conducted a site inspection on August 29; 1990, and
observed that the site was unsecured, abandoned,
and contained numerous potentially explosive,
highly flammable and otherwise dangerous
hazardous materials.
In the Matter of Natural Gas Pipeline Company
of America. Inc.: Region VII began an enforcement
initiative in FY 1990 to address PCB
contamination at natural gas pipeline compressor
stations. Nearly all major natural gas pipelines
4-26
in the United States cross Region VII. The Region
has developed a multi-media approach to
addressing contamination at natural gas pipeline
compressor stations. The TSCA, RCRA, and
CERCLA programs have all been involved in
review of investigations and recommending
appropriate responses. In the case of Natural Gas
Pipeline Company of America (NGPCA), Region
VII entered a CERCLA Consent Order with the
company to do site investigations at all 17 of
their compressor stations in Region VII. As a
result of the investigations PCB contamination
was discovered at four of the compressor stations.
With the help of the TSCA program, clean-up
plans were developed to address the
contamination, and to date four CERCLA removal
consent orders have been agreed to by the
company.
U.S. v. Northside Sanitary Landfill: This case is
the first judicial action under CERCLA §122
enforcing an administrative subpoena. In the case,
EPA issued an information request through the use
of its administrative subpoena power in §122 of
CERCLA. The defendants refused to comply and
EPA brought a judicial action to compel
compliance. The decision supports EPA's
initiative to enforce information requests when
responsible parties do not respond or
inadequately respond to EPA requests for
information. Information gathering is one of most
important aspects of initiating an enforcement
action.
On January 29, 1990, the court adopted the
magistrate's recommendation in this CERCLA
§122 subpoena enforcement action to enforce a
subpoena seeking financial information from the
Bankerts, owners of the Northside Sanitary
Landfill, a 160 acre site. The magistrate had
recommended that the subpoena be upheld and
that the owners turn over the requested
information. The court ordered the parties to
comply within ten days. The court also agreed
with the United States' position that since the
original subpoena was issued in 1986, the parties
should be required to furnish up-to-date
information, not to stop with the actual dates on
the subpoena.
U.S. v. Occidental Chemical Corp. (S-AREA);
On September 12, 1990, EPA Region II lodged
with the court a Stipulation that would amend
the 1985 Judgment for the S-Area. Besides being
a very large settlement, the agreement includes
the use of innovative technology to enhance the
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FY1990 Enforcement Accomplishments Report
remedial measures. The settlement provides for
environmental benefits of the contaminated area
through the use of remedial technology. The new
drinking water plant is an example of the
benefits the impact this decision will have on
the local community.
The Stipulation implements the Judgment's
provisions for the selection of remedies using
Requisite Remedial Technology (RRT) to address
contamination from the S-area landfill. The
S-area landfill site is approximately eight acres
in size and is located on the Occidental Chemical
Corporation (OCC) main plant property in
Niagara Falls, New York. The S-area is adjacent
to both the Niagara River and the City of
Niagara Falls Drinking Water Treatment Plant.
OCC disposed of approximately 63,000 tons of
hazardous chemical processing wastes into the
S-area from 1947-1961; other wastes were
disposed there by OCC until 1975.
The RRT remedies in this Stipulation and
its Appendices will expand the planned
Containment System for the historic landfill,
institute Overburden and Bedrock RRT systems
using hydraulic controls and extraction wells that
will contain and collect non-aqueous_phase
liquids and aqueous phase liquids (NAPL and
APL) for incineration and treatment, and construct
a new Drinking Water Plant.
This settlement will result in the
remediation of the dioxin and other
contamination in the vicinity of the S-area and
the City Drinking Water Plant in Niagara Falls
to levels which satisfy the requirements of both
governmental entities. The total cost of the
entire remediation is approximately $117
million.
O'Connor Co. Site Settlement; In July of 1990,
Central Maine Power Company (CMP) entered
into a settlement valued at upwards of
$16,000,000 involving the cleanup of the
O'Connor Co. Superfund Site in Augusta, Maine.
Pursuant to the consent decree embodying the
settlement, CMP, one of four potentially
responsible parties identified in connection with
the Site, has agreed to conduct the entire
remedial design and remedial action at the Site
and to reimburse 100% of the United States'
future oversight costs. The settlement thus
provides for recovery from a single party of
approximately 94% of the United States' total
past and estimated future costs. Moreover, under
the terms of the consent decree, CMP has agreed
to initiate remedial design activities upon
lodging, rather than entry, of the decree. The
PCB-contaminated site had been operated since
the early 1950's as a salvage yard for irreparable
transformers, capacitators and other electrical
equipment. The selected remedy called for in the
September 1989 Record of Decision involves the
treatment of PCBs by an innovative solvent
extraction technology.
U.S. v Ottati & Goss: Federal courts may reject an
EPA-chosen remedy for cleaning up a Superfund
site and can impose their own choice of remedy
under some circumstances, the U.S. Court of
Appeals for the First Circuit held April 4, 1990,
hi a narrow ruling. The court's holding applies
where the United States seeks an injunction based
on equitable standard to impose the Agency's
selection of a remedy without having first issued
a formal Agency remedial decision or unilateral
administrative order to require responsible
parties to clean up. Federal courts are not limited
to the administrative record in reviewing the
remedy selection under such circumstances, the
court held. This ruling applies to only a few
pending cases in the county and should not affect
record review in most cases.
The court's opinion affirmed in part,
vacated in part and remanded for further
proceedings the district court's 1988 injunctive
orders in U.S. v. Ottati & Goss, See, U.S. v.
Ottati & Goss, 694 F. Supp. 977 (D.N.H. 1988).
The court declined to change most of the
components of the judicially-ordered remedy in
Ottati because a review of the record in the court
below showed the district court-fashioned
remedial action was not "clearly erroneous."
The First Circuit ruled for the first time
that ordinarily EPA should be awarded indirect
costs. The court also held that district courts may
impose sanctions in instances of governmental
misconduct. The appellate court stated it
"simply could not determine" in the Ottati record
what the United States may have done to
warrant sanctions and remanded the sanctions
matter for reconsideration.
U.S. v. James Parsons: In this case, the defendants
failed without sufficient cause to comply with an
EPA administrative order issued under CERCLA
§106. The court upheld the imposition of
punitive damages in 1989 and recently awarded a
specific dollar amount. The case is important
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FY1990 Enforcement Accomplishments Report
because of its impact on responsible parties.
Parties will be much more willing to adequately
respond to an EPA administrative order rather
than face potential treble damages.
On March 6, 1990, the United States
District Court in the Northern District of Georgia
granted plaintiffs motion for partial summary
judgment for response costs in the amount of
$753,391. The court also found seven of the eight
defendants jointly and severally liable for three
times that amount, or $2,260,173 for failing to
comply with a CERCLA §106 Administrative
Order. This is the first case in which a court has
awarded the government a specific dollar amount
for treble damages.
In a related case and the first jury trial of
its type, the purchaser of a building holding
drums containing hazardous waste was held
liable May 15 for punitive treble damages under
the Superfund law by a federal district court in
Georgia. Judge Harold Murphy of the U.S.
District Court for the Northern District of
Georgia directed a verdict against P. Douglas
Morrison, holding that the defendant had
insufficient reason to fail to comply with an
administrative cleanup order issued by the
Environmental Protection Agency under §106 of
the Comprehensive Environmental Response,
Compensation, and Liability Act. Morrison,
along with other defendants previously found
liable, must pay three times what the
government spent in cleanup costs. EPA and DOJ
have appealed the judge's ruling in the matter of
what constitutes treble damages. The judge held
that EPA's response costs are included as one-
third of the total amount. The Government 's
position is that the treble damages are in
addition to the response costs.
In the Matter of Peru Mining Company: This is a
cost recovery case relating to the Cherokee
County, Kansas Mining Site which arose as a
result of the dissolution of Peru Mining Company
in a Delaware Chancery Court. EPA had filed a
proof of claim against Peru Mining Company in
the Chancery Court of Newcastle County,
Delaware for its costs relating to the Galena sub-
site of the Cherokee County, Kansas Sites. On
September 6, 1990, EPA received a check for
$242,410 which was the payment to EPA in
distribution of the remaining corporate assets of
Peru Mining Company. This amount is in excess of
95% of the company's assets. No release was
given other than for the amount received.
Picillo Site Summary Judgment (U.S. v. American
Cyanamid Co. and Rohm & Haas Co.); The
United States won a motion for summary judgment
establishing liability based on collateral
estoppel in the CERCLA cost recovery case
regarding the Picillo Superfund Site in Rhode
Island. On May 31, 1990, the federal district
court in Rhode Island held that American
Cyanamid Company and Rohm & Haas Company
were liable for approximately $3,500,000 in past
costs plus future cleanup costs.
The Region believes this was the first
Superfund case establishing liability on a theory
of offensive collateral estoppel. The court
accepted the government's argument that
liability could be established without trial
based on the fact that defendants had been found
liable in an earlier CERCLA lawsuit filed by the
State of Rhode Island for its costs incurred at the
Site. The court noted that its ruling was not
unfair to the defendants, as they had every
opportunity and incentive to fully and fairly
defend their liability under CERCLA in the prior
suit, and that precluding the U.S. from relying on
collateral estoppel would defeat the public
policies EPA serves in allocating its limited
resources to pursue Superfund cases.
As Superfund litigation brought by states,
PRPs, and insurance companies increases, the
Picillo decision establishes an important
precedent for EPA to pursue judgments based on
CERCLA cases filed by states and private
parties.
In the matter of Priority Finishing; This
administrative settlement concerned the Putnam
Fire and Chemical Spill Site in Putnam,
Connecticut. The Region entered a CERCLA
§122(h) agreement that required the Priority
Finishing Corporation to pay $920,000 into the
Fund. Priority was an owner and operator of the
Site at the time of disposal of hazardous
substances. Coupled with an earlier payment of
$30,000 from Dimension Sailcloth, Inc., another
operator at the Site, EPA recovered 83% of the
total response costs of approximately $1,100,000,
including prejudgment interest.
U.S. v. Providence Journal; The settlement in this
case sends an important signal to the regulated
community that the United States will
compromise little if any of its recoverable costs
where defendants choose not to negotiate until
the eleventh hour, thereby making it much more
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FY1990 Enforcement Accomplishments Report
costly for PRPs to litigate than to settle. On
March 26, 1990, the day trial was to begin, the
government reached a settlement with all
defendants in United States v. The Providence
Journal. The United States will receive $374,000
from the Providence Journal Company and $20,000
from two other defendants. This represents an
aggregate recovery of 100% of actual response
costs, and represents recovery of approximately
95% of total costs inclusive of interest ($415,000).
The .original cost of performing the removal
action was approximately $175,000. The
remainder of the response costs represent
enforcement and.litigation costs.
U.S. v. A.N. Reitzloff Co., et al.: This case
provides a good incentive to responsible parties to
enter into settlement early with EPA. Parties
who waited to settle this case received less
favorable terms than those responsible parties
who came forward early. The result supports
EPA's national effort to recover response costs
from de minimis parties.
On August 30,1990, Judge Friedman of the
U.S. District Court for the Eastern District of
Michigan entered the second de minimis consent
decree addressing the liability of 115 additional
de minimis defendants for the cleanup of
contamination at the Liquid Disposal Superfund
Site in Utica, Michigan. In addition to the 200%
premium payment required of all de minimis
settlors, an additional payment of 100% of their
volumetric share was required from those settlors
who elected not to join in first round settlement.
In the matter of Resource Conservation and
Recovery of America, Inc.; An administrative
settlement was signed April 3 at the Department
of Justice for the Davis Farm site, located in
Chatsworth, Georgia. Under the settlement, the
Army, the Navy, the Department of Energy, and
the Tennessee Valley Authority will reimburse
the Superfund for a total of $164,605.92 in costs
incurred by EPA in conducting a removal action at
the Davis Farm site. The United States is
pursuing private parties for the balance of the
response costs and has already settled with
several of the private parties. Under the various
settlements, EPA will have recovered
approximately 82 per cent of the $799,195
incurred in the removal action and associated
enforcement costs.
recommendations to encourage responsible parties
to enter into settlements and allows EPA to
partially recover response costs. The decision
provides a clear incentive to responsible parties
to enter into settlements because of the protection
against third party claims they can receive under
SARA.
On September 14, 1990 a the United States
District Judge of the District of New Jersey
dismissed all cross-claims and counter-claims
against ten PRPs who entered into a $3 million
dollar de minimis consent decree with EPA
regarding the Lipari Landfill. The judge ruled
that the ten settling parties are protected from
further third-party claims of contribution by §
122(g)ofCERCLA.
The Lipari Landfill, a six acre landfill in
Gloucester County, New Jersey, is the number one
site on the National Priorities List. The de
minimis settlement required the settlors to pay
the United States approximately $2,586,000 to
partially reimburse the federal government's
response costs. Two nonsettlors requested that the
New Jersey District Court reject the de minimis
settlement. On September 29, 1989, the court
entered the decree, determining the settlement
was fair, adequate, and reasonable, and consistent
with the Constitution and the mandate of
Congress. .The court reasoned that the settlors
were protected from contribution claims for those
"covered matters" in the settlement.
U.S. v. Royal Hardage. et al.. Hardage
Superfund Site; This case involves a former
commercial disposal site in Oklahoma. Phase II
of the trial resulted in a ruling by the U.S.
District Judge reinforcing the Agency's authority
to hold transporters arranging for disposal of
waste liable under CERCLA. Also affirmed by
the Judge's ruling was authority to recover all
costs, including indirect costs, incurred by the EPA
for response actions. Finally, the Judge ruled in
favor of the Potentially Responsible Party
remedy requiring partial removal followed by
off-site incineration of the extracted wastes and
groundwater remedial action to prevent the
influx of contaminated groundwater to a nearby
stream. The site, located in Criner, Oklahoma is
contaminated by pesticides, chlorinated solvents,
metals and PCB oils as result of waste disposal at
the site.
U.S. v. Rohm & Haas Co., et al.; The case Schalk v. Reilly; Based on the decision in this
supports the Superfund Management Review case, PRPs are more likely to enter into a consent
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FY1990 Enforcement Accomplishments Report
decree requiring potentially controversial
remedial measures. The result in this case also
supports SARA's codification of no
pre-implementation judicial review for selected
remedial measures at Superfund sites.
On April 24, 1990, the Seventh Circuit
affirmed the district court's dismissal of two
citizen suits that challenged remedies selected
for six Superfund sites in Indiana. The district
court had approved a consent decree in August
1985 for the remedies, finding that numerous
public meetings were held prior to the decree's
approval and that the decree was fair, adequate,
reasonable, and appropriate. The decree required
remedial measures be taken in two steps: (1) a
removal action involving surface excavation and
capping of abandoned dump sites, and (2) the
burning of hazardous wastes in a trash-fired
incinerator.
Schalk filed a lawsuit in December of 1987
andJFrey filed a lawsuit in February 1988. Both
parties sought judicial review of the decree
entered between the U.S. and Westinghouse,
specifically the proposed remedial action
involving the incineration of PCBs. The
plaintiffs argued that §113(h) of SARA was not
retroactive to a consent decree entered in 1985,
and that they were not challenging the decree,
but merely asking for procedural requirements.
In rejecting their arguments, the Seventh
Circuit stated that: (1) their lawsuits were filed
after SARA's enactment; (2) SARA codified an
established rule of no pre-implementation
review; and (3) the plaintiffs were challenging
the proposed remedy. The court pointed to
CERCLA 113(h) which states that "No Federal
court shall have jurisdiction—to review any
challenges to removal or remedial
action...except" in certain circumstances. The
citizen suit exception allows an action alleging
that the removal or remedial action taken under
[§104] or secured under [§106] violated a
requirement of the chapter.
U.S. v. Sharcm-Steelt The settlement supports the
Superfund Management Review recommendation
to have responsible parties undertake remedial
activities at Superfund sites and to have EPA
recover its response costs from responsible parties.
On August 21,1990, EPA and Sharon Steel
entered into the largest bankruptcy settlement
ever at a Superfund Site. Sharon Steel agreed to
pay at least $22 million toward the cleanup of
two sites near Salt Lake City. Sharon Steel is the
current owner of a milling facility at the Sharon
Steel Midvale Tailing Superfund site. EPA has
already expended about $5 million for cleanup of
the Tailings site. Under the agreement, EPA has
permanent access to the site. Additionally,
Sharon Steel agreed to dismiss claims against
any government parties.
The remedial action plan for the milling
facility is scheduled for completion in October
1990, and a final cleanup plan for residential
areas was due by September 1990. The soils
surrounding the residences have been
contaminated with arsenic, lead, and cadmium.
Arsenic has also contaminated the ground water
in the area.
U.S. v. Sheller-Globe Corporation, et al.; In
August 1990, the court lodged a consent decree
signed by 41 PRPs for the Auto Ion, Inc. Superfund
site in Kalamazoo, MI. The decree requires the
PRPs to carry out soil remediation at an
estimated cost of $3.4 million. The PRPs also must
pay for response and other costs in connection
with the cleanup. The facility, formerly an
electrical power plant used by the City of
Kalamazoo and Consumers Power, Inc., was used
primarily by Auto Ion, Inc. to remove heavy
metals from chrome and cyanide plating waste.
About 120,000 gallons of liquid plating wastes
and sludge, in addition to arsenic, were left there
when Auto Ion ceased operations.
U.S. v. E.H. Schilling & Son, ct al.i This is the
first Superfund remedy case in the country ever
nominated for ADR. An October 1990 consent
decree outlined an estimated $11 million
remedial action to be performed at the E.H.
Schilling Landfill near Ironton, OH. The
agreement calls for PRPs Ashland Chemical Co.,
Aristech Chemical Corp., and Dow Chemical Co.
to install a slurry wall around the perimeter of
the landfill, place of a cap on its surface,
reinforce the earthen dam and install an onsite
liquid and leachate extraction and treatment
system. The PRPs agreed to pay all past costs, all
costs of implementing the clean up, and all
oversight costs in excess of the first $236,000.
Between 1969 and 1980, the landfill
accepted commercial and industrial solids,
liquids and sludge, including polystyrene,
polyurethane, polyethylene, phenol, acetone,
ceramic foam, oil and petroleum pitch, which
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FY1990 Enforcement Accomplishments Report
eventually contaminated the soil. Contaminants
identified at the site include arsenic, benzene,
benzol (a) pyrene and 1,2-dichlorethane. The
case was nominated for alternative dispute
resolution (ADR) in 1989 after a cost allocation
controversy arose between the PRPs; A cost
recovery action against two nonsettlmg PRPs for
the initial oversight costs is being evaluated.
Solid State Circuits Site: On August 10,1990, EPA
referred to the Department of Justice for lodging a
Consent Decree for Remedial Design/Remedial
Action at the Solid State Circuits Site in
.Republic, MO. The Site consists of a former
printed circuit board plant where waste
trichloroethylene contaminates groundwater
that is the source of the municipal water supply.
The remedy calls for pumping and treating
contaminated groundwater, then discharging to a
publicly-owned treatment works for further
treatment and discharge pursuant to a NPDES
permit. The State of Missouri is a party to the
Consent Decree. Submittals from and oversight of
the PRP will be handled primarily by the
Missouri Department of Natural Resources, as the
lead agency. Also, the Consent Decree provides a
unique financing mechanism for the estimated
$7.4 million remedy in which the sole PRP, not
otherwise able to pay for the remedy, can arrange
private financing to meet its liabilities. The
PRP, with a net worth estimated at $3 million
with environmental liabilities and $6 million
without, is allowed to sell its assets to an
unrelated third party with such purchaser not
becoming bound to the Consent Decree, provided a
trust for performance of the remedy is funded in
the amount of $8.8 million. The PRP does not own
any Site property. The PRP's parent corporation,
not a party to the Consent Decree, will fund the
trust with loans to be paid from proceeds from the
asset sale, and the PRP will cease all business
except to perform its obligations under the
Consent Decree.
Sullivan's Ledge Site Settlement; In September,
1990, the Region obtained agreement to a consent
decree from 14 PRPs for RD/RA performance and
reimbursement of past costs and oversight costs
regarding the First Operable Unit at the
Sullivan's Ledge Site in New Bedford,
Massachusetts. Under the consent decree, the
settling PRPs are required to implement the
remedial design and remedial action, with the.
limitation that the settling PRPs' obligations
will terminate after thirty years of operation
and maintenance. The present worth value of
4-31
these activities is estimated at $10,500,000. In
addition, the settling PRPs agreed to reimburse
100% of the United States' oversight costs for the
first five years of the remedy and 50% thereafter,
up to a cap of $1,500,000, arid to reimburse the
United States for $620,000 in past costs. In total,
the package represents recovery of $12,370,000, or
77.8% of total site response costs. The Region
anticipates filing a cost recovery action against
nine non-settlors for the remaining response costs.
U.S. v. Rasmussen. et. al.. Livingston County
Michigan; This case filed in Federal District
court in January 1988 involved an action for cost
recovery for removal activities under CERCLA.
The defendants included site owners Gloria F.
Rasmussen and Clara C. Rasmussen; Homer S.
Rasmussen, the operator during its period as a
landfill; Alfred E. Pearson, who disposed of
hazardous substances at the site; and the
companies that arranged for hazardous waste
disposal, which included Chrysler Corp., Ford
Motor Co., and Hoover Universal, Inc. EPA
incurred the costs performing an immediate
removal.
Because of the environmental threat, the
Rasmussen site was placed on the National
Priorities List on September 8, 1983. EPA began
removal at the site on October 31, 1984, using
Superfund money. About 3,000 drums and 250 cubic
yards of contaminated soils from the Rasmussen
landfill were taken to an approved hazardous
waste landfill. This response action ended in
January 1985. The 1990 consent decree required
Ford and Chrysler to reimburse the United States
for $530,000; Hoover settled for $295,838
November 18, 1989. Other settlements should be
completed in the near future.
In December 1988, EPA determined another
removal action would expedite site clean-up and
the development of options for the feasibility
study. On July 12,1989,11 PRPs signed a consent
order specifying the work to be done to complete
the cleanup. The PRPs removed waste,
contaminated soil, and about 650 drums from the
site from December 1989 through February 1990.
The proposed final remediation plan was
released for public comment August 31,1990.
In the matter of Tennessee Chemical Company.
Prospective Purchaser Agreement; On September
20, 1990, EPA and Boliden Intergrade, A.G.,
signed a prospective purchaser agreement for the
bankrupt Tennessee Chemical Company (TCC)
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FY1990 Enforcement Accomplishments Report
facility in Copperhill, TN. Boliden Intergrade,
A.G., a Swedish company, will spend some $21
million over the next 10 years on environmental
and plant improvements. The company agreed to
continue operation of the two wastewater
treatment plants protecting the Ocoee river from
contaminated water runoff. The firm will
implement an environmental improvement
program at an estimated cost of $8 million, which
would include reforestation, wastewater
treatment plant upgrades, installation of new
sedimentation traps, and remediation of
contaminated soil. In addition, the company will
construct a new sulfur burner at the facility at an
estimated cost of $13 million.
The September 20, agreement was required
because a six month interim agreement negotiated
in March of 1990 was about to expire. The U.S.
Bankruptcy Court had approved the interim
agreement, which was in the nature of a
prospective purchaser agreement. Under that
agreement, Boliden agreed, among other things,
to operate all environmental control equipment;
comply with all environmental statutes,
regulations, permits, and orders; conduct an
abbreviated environmental site investigation;
and to be liable for all violations of law, and for
all environmental harm it causes during its
period of operations. Most notable was Boliden's
agreement to operate the facility's wastewater
treatment plant, thus avoiding some 4.5 million
gallons per day of uncontrolled inactive mine
runoff discharge if TCC were to abandon the
facility. TCC was on the verge of shutdown in
March 1990, and the interim agreement averted
an expected plant shutdown by the Bankruptcy
Court.
The September 1990 agreement also
provides for: reimbursement to EPA of $180,000 for
past response costs, compliance with all
applicable state and federal environmental
requirements, cleanup of several existing
chemical and fuel oil spills, and voluntary
reforestation on unpurchased land. Boliden .will
not be held liable for contamination at the
Copperhill site that occurred before the company
assumed operation of the facility on March 20,
1990. The company will be liable for any
contamination resulting from their operation of
the facility.
Recent releases of sulfur dioxide by
Tennessee Chemical Company are being
addressed by EPA in separate enforcement
proceedings. One such release, which occurred on
August 16,1990 during the negotiations period for
the September 1990 agreement, necessitated the
issuance of a CERCLA 106 Unilateral
Administrative Order in response to significant
off-site harm caused to human health and the
environment by releases of sulfur dioxide and
sulfur trioxide from the plant. This marks the
first time that Region IV has used a CERCLA 106
Unilateral Administrative Order to cease
significant releases of hazardous substances
during Tennessee Chemical's operations. In
response to the August 16,1990, release, within a
very short timeframe, the Region conducted a
Chemical Process Safety Audit and a Clean
Air Act compliance inspection of the plant. The
area was also surveyed for vegetative and
health effects by the Environmental Services
Division (BSD) and the Agency for Toxic
Substances and Disease Registry (ATSDR). These
produced recommendations that were invaluable
to the successful negotiation of the prospective
purchaser agreement. The combined Audit and
Inspection allowed the Agency to determine a
complete outline of plant and process
improvements that are needed to minimize future
releases of hazardous substances.
The Tennessee Chemical prospective
purchaser agreement is an example of EPA's
ability to enter into agreements with private
parties for site remediation. Without this
agreement, the responsible party would have
potentially slipped into bankruptcy and EPA
would have been required to remediate the site.
U.S. v. Thomas Solvents; The case is supports pur
enforcement effort and is nationally significant
for two reasons. First, the court upheld EPA's
request for recovery of all response costs. Second,
the court found that EPA's actions at the site
would be reviewed based on the administrative
record using an arbitrary and capricious standard.
On September 24, 1990, the U.S. District
Court for the Western District of Michigan
granted the government's motion for partial
summary judgment on response costs. The case
involves actions by EPA and the state of
Michigan to clean up and contain the spread of
hazardous substances discovered in the Verona
Well Field and surrounding areas. The substances
had allegedly been released by defendants on
three nearby properties and had penetrated the
soil, entered the ground water, and contaminated
a number of wells at the Verona Well Field.
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FY1990 Enforcement Accomplishments Report
SB,
The Well Field serves as a public water
supply for about 35,000 residents and businesses of
Battle Creek, Michigan. EPA's costs at the time
of trial exceeded $4.5 million dollars. The court
granted EPA's request for summary judgment on
certain response costs valued at $877,704.78.
In holding for the United States, the court
determined that the government does not have to
prove the reasonableness of its response action.
Instead, it is up to the defendants to prove that
the action was arbitrary and capricious. The
court when on to say that the fact that the
selected response was not effective does not imply
that its selection was arbitrary and capricious.
The court also held that EPA could recover its
indirect costs at the site for those expenses
attributable to overhead.
In a related matter, the court granted the
government's motion for a ruling as to the
appropriate standard and scope of review of
agency action. The court determined that §113 of
CERCLA applies to response actions taken by the
agency as opposed to the argument that it applies
only to the selected response action. In addition,
the court held that any response action should be
reviewed on the basis of the administrative
record under an arbitrary and capricious
standard, and absent a showing of manifest
injustice, §113 of SARA will apply retroactively.
In the Matter of 3M Company, Columbia/
Missouri; 3M Company (3M) entered into a
§3008(h) Administrative Order on Consent
(AOC) with EPA on September 26,1990. Pursuant
to the AOC, 3M has agreed to perform a RCRA
Facility Investigation arid a Corrective Measures
Study for its facility. located in Columbia,
Missouri. In addition to traditional requirements
in a §3008(h) Order, EPA negotiated to have 3M
model VOC air releases which emanated from
facility manufacturing process units. 3M
voluntarily agreed (outside of AOC) to reduce
VOC emissions by approximately 90% by the
summer of 1992. 3M also agreed to provide EPA
with annual progress/status reports setting forth
the progress it made during the reporting period,
and what steps it intends to take during each
following reporting period in reducing air
. emissions.
U.S. y. Tri-State Mint (CERCLA/EPCRA): The
government pursued two separate Tri-State Mint
enforcement actions that involved the dumping,
by the Tri-State Mint, of hazardous chemicals in
an industrial park in Sioux Falls. This posed an
acute threat to the inhabitants of Sioux Falls due
to the potential impact on the city's drinking
water supply. This case was also pursued under
EPCRA.
Tri-State Mint A Avenue - civil
administrative order. This site involved the
dumping of cyanide solutions with heavy metals
onto soils behind a facility known as Tri-State
Mint A Avenue, which is located in Sioux Falls,
South Dakota. The contamination posed a threat
to the Big Sioux aquifer, the drinking water
source for the City of Sioux Falls. The PRPs
completed clean-up of the site pursuant to a
Unilateral Order issued on January 3, 1990. The
PRPs will be billed in the 1st quarter of FY 91 for
costs incurred pursuant to the Unilateral Order.
Tri-State Mint Fire - civil administrative
order. This site involved plating solutions, acids,
and oxidizers from the Tri-State Mint A Avenue
facility. The incident took place on September 2,
1989. The contamination was contained within
the facility. Clean-up at the site was
accomplished by the PRP pursuant to an
Administrative Order on Consent issued on
November 7,1989. The PRPs will be billed in the
1st quarter of FY 91 for costs incurred pursuant to
the Administrative Order.
U. S. v. Union Research Co.. Inc.: The Union
Research decision notifies PRPs that it is in their
best interest to settle with EPA now rather than
later withstand a time consuming and costly
judicial action. On October 9, 1990 the United
States District Court for the District of Maine
affirmed a magistrate's decision limiting
discovery in a CERCLA cost recovery action. In
the case, EPA was seeking response costs from two
non-settling defendants after settlements were
reached with other defendants.
The defendants, Union and Esposito, sought
to discover information relating to the
reasonableness of certain response costs that the
government received as the result of the prior
consent decrees. On September 6, 1990, court
denied their discovery request. The court stated
that the nonsettling parties should have brought
to the court's attention any concerns about the
consent decree's fairness during the thirty day
public comment period. In forgoing this
opportunity, the defendants lost their chance to
contest the fairness of the decree.
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The court also ruled that if a settlor pays
loss than its fair share of liability, a non-settlor
is liable for the difference. Therefore, the
non-settlor's liability is reduced by the amount of
settlement and not by the equitable shares. The
court reasoned that to hold otherwise would
require the government to litigate with, the
non-settlors matters the government thought
resolved in the settlement process. The holding is
significant because it highlights the benefits of a
PRP/EPA settlement and encourages recalcitrant
PRPs to settle.
In the matter of U.S. Testing. Inc.; On April 24,
1990, EPA suspended U.S. Testing Inc., a major
participant in EPA's Contract Laboratory
Program with 22 branch laboratories nationwide,
from receiving future federal contracts and EPA
assistance awards. The complaint initiated by
Region X's Suspension and Debarment team
alleged that U.S. Testing's laboratories in
Richland, WA and Hoboken, NJ submitted
unreliable and falsified data to EPA. Some of the
practices alleged to have taken place included:
Analyzing samples after the holding times were
exceeded and then back dating the tests; pH
readings and PCB/pesticide standards and
analyses were reported as having been analyzed
using automated equipment which the laboratory
did not have; improper sample movement and
chain of custody records resulting in the inability
to accurately trace samples; and improper
calibration of equipment resulting in inaccurate
data being reported as valid.
In the matter of Vandale Junkyard: On March 5,
1990, an administrative subpoena under CERCLA
was used for the first time to determine if a PRPs
remedial investigation and feasibility study
(RI/FS) met the terms of an administrative
consent order or should be discontinued.
Activities by the PRPs and their contractor
indicated a pattern of failing to comply with
substantive requirements of the 1987 order, failing
to complete tasks on time, and endangering
workers and EPA representatives. Although the
PRPs objected, a deposition was taken on April 26,
1990. Deposition information supported EPA's
determination to discontinue the PRPs1 authority
to conduct the RI/FS, effective August 16,1990.
Wells G & H Site Settlement; In September 1990,
Region I finalized a settlement for the Wells G &
H Superfund site in Woburn, Massachusetts. The
settlement requires four potentially responsible
parties identified in connection with four
contaminated properties within the Site to
conduct the entire RD/RA at these properties for
the first operable unit and pay a large portion of
the government's past costs at the Site and
reimburse all future oversight costs. A smaller set
of the settling parties has also agreed to perform
a remedial investigation/feasibility study for
the next phase of the Site cleanup. The total
value of this settlement is approximately
$69,450,000.
This complex settlement is noteworthy in
several respects: it involved agreement by a
small number of PRPs to a very large settlement,
utilized a Non-binding Preliminary Allocation of
Responsibility (NEAR) to allocate
responsibilities among landowners, provides for
initiation of the remedy as well as the RI/FS at
the time of lodging of the Decree, and was
negotiated in a very short time frame given the
complexities of the case.
The settlement provides for the first phase
of cleanup of one of the most publicly visible sites
on the National Priorities List. This Site has
experienced intense public scrutiny over the last
decade because of the high incidence of
childhood leukemia in the area surrounding
Wells G & H which involved the public drinking
water supply for the City of Woburn,
Massachusetts.
York Oil Mixed Funding Settlement; In
September 1990, EPA forwarded to DOJ a signed
consent decree for RD/RA at the York Oil site in
New York. The decree is the Region's first mixed
funding settlement under §122(b)(l) of CERCLA.
It provides for the RD/RA work to be carried out
by the Aluminum Company of America (Alcoa);
for reimbursement by Alcoa of $795,000 in EPA
past costs; and for payment by the U.S. Army and
Air Force of $1,875,000 towards the cost of future
work and $636,846 for past costs. Alcoa has been
pre-authorized to apply for reimbursement of
48% of its RD/RA costs from EPA, among the
highest pre-authorization levels yet approved
by the Agency. EPA intends to seek recovery of its
share of the costs from other PRPs.
Superfund Information Request
Enforcement Initiative
Enforcement of information requests, to
ensure prompt and accurate reporting of essential
data, is important to the integrity of EPA's
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enforcement programs. Several cases were filed
as a part of a national CERCLA §104(e)
information request initiative.
U. S. v. Crown Roll Leaf (CERCLA/RCRA); In a
case reported in FY 1989's Enforcement
Accomplishments Report, a federal court in New
Jersey assessed a penalty of $142,000 against
Crown Roll Leaf Co., Inc. for failing to respond to
an information request. The court awarded
$63,000 for the CERCLA §104(e) violation, and
$79,000 for the RCRA §3007 violation. The Third
Circuit affirmed without a written opinion on
October 12, 1989 and the U.S. Supreme Court on
January 22, 1990 denied the petitioner's request
for certiorari to overturn that judgment. The case
is important because it upholds EPA ability to
seek stiff penalties against responsible parties
who fail to respond or inadequately respond to
information requests.
U. S. v. Dertzer & Schafer X-Ray Co.; The
complaint seeks an injunction ordering Defendant
Denzer & Schafer X-Ray Co., Inc., to supply the
requested information, and civil penalties for the
company's failure to respond to EPA's request.
The defendant failed to comply with Region H's
request for information at the Lone Pine Landfill
and at the Denzer & Schafer site, both of which
are on the NPL.
U. S. v. JohnLesofski; The complaint in this case
seeks to compel compliance with Region II's
request for information and seeks penalties for
noncompliance with the Request. Lesofski is
believed to have handled, transported, and
disposed of hazardous substances at the Lang
property NPL site in New Jersey.
U. S. v. Madison Disposal Service. Inc.; The
complaint in this case seeks an injunction ordering
Madison Disposal Service, Inc. to supply the
requested information and civil penalties for the
Defendant's failure to respond to a §104(e) letter.
Madison Disposal is a garbage hauler that is
believed to have information regarding the
transportation to and disposal of hazardous
substances at the Lone Pine Landfill site in New
Jersey.
Access Litigation
Andor Chemical Site; On February 5, 1990, the
U.S. District Court for the Western District of
New York issued an Order granting EPA access to
the Andor Chemical site in Bradford, New York,
4-35
to allow the Agency to carry out a removal action.
The Order also excluded the owner and operator
of the site from the property until EPA's response
actions are finished. The complaint was filed
against the owner and operator of the chemical
repackaging company, Roman Drey wood. Mr.
Dreywood also used the site as a residence.
White Chemical Section i Site; On September 28,
1990, EPA issued a unilateral order to the White
Chemical Corp. of Newark, New Jersey, and its
owner, James White, requiring them to provide
access to the site, and cease work at and vacate
the premises immediately. This was a chemical
manufacturing facility with some 9000 drums on
site, many containing hazardous and reactive
materials, and many of which were leaking or in
unacceptable condition. Anticipating non-
compliance, EPA made a referral to DOJ for a
civil action seeking a temporary restraining order
(TRO). Before such an action could be filed,
White, which was in bankruptcy, challenged
EPA's order in the bankruptcy court. The
bankruptcy judge issued an order, pending the
district court's review, requiring White to comply
with EPA's administrative order. The district
court, on October 23,1990, ratified the bankruptcy
court's action and issued a preliminary injunction.
White has since vacated the premises, and the
removal action is underway. It is estimated to
cost $18 million.
Genazale Plating Site; On October 13, 1989, the
U.S. District Court for the Eastern District Court
of New York granted EPA a preliminary injunction
in the Genazale Plating case directing the site
owner to grant access to EPA and its
representatives. The decision, issued after a
hearing, is very favorable regarding EPA's access
authority.
Federal Facilities - Superfund/RCRA
In the matter of Buck's War Surplus Superfund
Site, U.S. Department of Defense; On June 20,
1990, EPA issued a Notice of Potential Liability
to the Defense Logistics Agency (DLA) and
requested that the Department of Defense (DOD)
assume responsibility for removal response
actions at the Buck's War Surplus site. The
Buck's War Surplus site is a privately-run
military surplus operation located in Las Vegas,
Nevada. EPA initiated a removal action at the
request of state and county agencies. The site
contained almost 4000 highly corroded containers
of military reagents. Estimated cleanup costs
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FY1990 Enforcement Accomplishments Report
were $1 million. On September 26, 1990, EPA
successfully negotiated an Administrative
Consent Order with DLA. As part of the order,
DLA transported and disposed of drums from the
site. In October 1990, DLA reimbursed EPA for
over $600,000 in response costs incurred at the
site. To date, Region IX has had 11 CERCLA
removal actions involving hazardous substances
that originated as military surplus items sold at
Defense Department auctions. Over the past
three and a half years, Region IX has responded
to nine hazardous military surplus sites at a cost
of over $1.6 million.
In the matter of Dyess^Aur Force Base (UST); A
Complaint and Notice of Non-Compliance under
the Underground Storage Tank requirements was
issued to Dyess Air Force Base, Abilene, Texas.
The facility was discovering failed (leaking)
tanks, but it was not conducting further
investigations of the extent of contamination and
possible corrective actions. The contaminants
consist primarily of used oils, fuels, solvents, and
pesticides. Discussions are underway to attempt
to obtain a Federal Facility Compliance
Agreement.
In the matter of Iowa Army Ammunition Plant:
On September 20, 1990, the Department of the
Army and EPA completed negotiations on a
Federal Facility Compliance Agreement for
Removal Actions, Remedial Investigation/
Feasibility Studies (RI/FS), Remedial Action
selection and Remedial Design/Remedial Actions
for all releases at the Iowa Army Ammunition
Site, near Middleton, IA. The 19,000 acre site has
soil and groundwater contaminated with RDX,
TNB, DNT, and TNT, among other hazardous
substances. The project costs are to be fully funded
by the Department of the Army, but will not be
known until completion of the RI/FS.
In the matter of NASA - White Sands Test
Facility: This facility, located near Las Graces,
New Mexico, had releases of hazardous wastes.
A corrective action order under RCRA was
successfully negotiated and issued to this facility
on December 12,1989, and was the first such order
in the nation issued to NASA. The action will
require the facility to investigate the extent of
contamination at the facility, with special
emphasis on identifying the preferred pathways
of migration and extent of groundwater
contamination within the fractured bed rock
beneath, acting as the uppermost saturated zone
in the vicinity of the facility. Upon completion
of the RCRA Facility Investigation and
Corrective Measures Studies, the appropriate
corrective measures will be implemented.
In the matter of Tinker Air Force Base; A
Complaint and Notice of Non-Compliance under
the Underground Storage Tank requirements was
issued to Tinker Air Force Base, Oklahoma City,
Oklahoma. In the process of a joint inspection
with the Oklahoma Corporation Commission, it
was learned that when the Base discovered a
failed tank through a tank tightness test, Tinker
failed to conduct further investigations to
determine the extent of the contamination and
possible corrective actions. Discussions are
underway to attempt to obtain a Federal Facility
Compliance Agreement.
In the matter of the U.S. Coast Guard. Kodiak:
EPA negotiated a comprehensive §3008(h)
corrective action order with this facility. This is
the first such order signed by the Coast Guard in
the nation and it has been used as a model by the
Office of Federal Activities for other Coast
Guard facilities across the United States.
Contamination problems at this large base
involve numerous locations where hazardous
waste constituents have been released from past
waste handling practices. These releases
threaten nearby salmon streams.
Letterkenney Army Depot: Region Ill's Federal
Facility Superfund Program successfully assessed
a $10,000 penalty against Letterkenney Army
depot for violations of the terms of their
Superfund Ihteragency Agreement. This fine for
failure to submit certain primary documents under
the agreement is the first penalty ever assessed
against another federal agency by EPA.
Marine Corps Settlements; On September 28,
1990, four Marine Corps bases in Southern
California signed Federal Facility Compliance
Agreements (FFCAs) with EPA Region IX. The
four facilities are the Marine Corps Logistics
Base, Yermo and Nebo Annexes, located in San
Bernardino County, and the Tustin and El Toro
Marine Corps Air Stations located in Orange
County. The actions were taken to remedy
violations of the Resource Conservation and
Recovery Act (RCRA) that resulted from the
facilities' long-standing failure to properly treat,
store and dispose of their hazardous wastes. The
agreements resolved Notices of Noncompliance
(NONs) issued during the spring and summer of
1990 which listed multiple violations of RCRA
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FY1990 Erforcement Accomplishments Report
noted during the 1990 inspections. Many were
repeat violations that had been cited during
inspections in 1988 and 1989.
In accordance with the compliance
schedules established under the agreements, the
facilities will correct all outstanding violations
of RCRA, conduct inventories to identify all the
hazardous wastes they generate, and develop a
waste minimization plan to determine the
procedures needed to reduce the volume and
toxicity of those wastes. Since these facilities
had a history of noncompliance with the RCRA
hazardous waste regulations, Region 9 was
pleased to have the full cooperation of the
Marine Corps in negotiating these FFCAs. When
fully implemented, they will contribute
significantly to the protection of the health and
environment of all who live and work on and in
the vicinity of the four bases.
SUBBASE Bangor: On January 29,1990, the U.S.
Navy, the Washington State Department of
Ecology, and the EPA entered into a CERCLA §120
Agreement to perform comprehensive studies and
remedial actions to address public health and
environmental threats from the base, in
accordance with the procedures specified in the
National Contingency Plan. This is the first such
Agreement with the Department of Defense in
this region to include hazardous sites not listed on
the National Priorities List and is the first such
Agreement with the U.S. Navy in Region X. In
keeping with EPA's "bias for action," the
Agreement calls for completing 10 Remedial
Investigations and Feasibility Studies within 48
months after the January 29th effective date of
the Agreement.
Region IX Agreements: In FY 1990, Region IX
negotiated an unprecedented 12 Federal Facility
Agreements under CERCLA with various DOD
installations listed on the National Priorities
List. Agreements were signed with Riverbank
Army Ammunition Depot, March Air Force Base,
Edwards Air Force Base, Fort Ord (Army), George
Air Force Base, Travis Air Force Base, Treasure
Island Naval Station (Hunters Point Annex),
Camp Pendleton Marine Corps Base, El Toro
Marine Corps Air Station, Luke Air Force Base,
Williams Air Force Base, and Barstow Marine
Corps Base. These agreements extend the reach
of EPA oversight, particularly in the area of
removal response, and include as signatories the
California Department of Health Services and
Regional Water Quality Control Boards for
California installations and the Arizona
Department of Environmental Quality and the
Arizona Department of Water Resources for
Arizona installations.
In the matter of U.S. Department of the Army,
Cornhusker Army Ammunition Plant, Hall
County. Nebraska; In April 1990, the Department
of the Army, the State of Nebraska, and EPA
completed negotiation of a CERCLA § 120
Federal Facility Compliance Agreement for the
Cornhusker Army Ammunition Plant (CAAP).
CAAP was constructed in 1942, and was used for
the production of conventional munitions and
ammonium nitrate fertilizer. The facility has
been in inactive status since 1973 and currently no
explosives are produced or stored at CAAP. In
1987 and 1988, approximately 40,000 tons of
explosives-contaminated soils from site surface
impoundments were incinerated on-site, pursuant
to an earlier Federal Facility Compliance
Agreement. Groundwater contamination
originating on-site adversely affected residential
drinking water supply wells in Grand Island,
Nebraska. CAAP was listed on the National
Priorities List in 1987. The Federal Facility
Compliance Agreement requires the Army to
conduct a remedial investigation and feasibility
study, including possible identification of
operable units, pertaining to soil, surface water
and ground water contamination, and to conduct
the^ remedial action(s) selected for the site. The
project costs are currently estimated at $14.8
million.
In the matter of U.S. Department of the Army.
Weldon Springs Ordnance Works; On August 7,
1990, the Missouri Department of Natural
Resources, the Department of the Army, and EPA
completed negotiation of the Federal Facility
• Compliance Agreement for Removal Actions,
Remedial Investigation/Feasibility Studies,
Remedial Action selection and Remedial
Design/Remedial Actions for all releases at the
Weldon Springs Ordnance Works Site, St. Charles
County, MO. The 17,000 acre site has soil and
groundwater contaminated with TNT, DNT and
lead, among other hazardous substances. The
project costs, currently estimated at $26.5 million,
are to be fully funded by Department of the Army.
In the matter of U.S. Department of Energy. St.
Louis Airport Sites. St. Louis, Missouri; In June
1990, the Department of Energy (DOE) and EPA
completed negotiation of a CERCLA §120 Federal
Facility Compliance Agreement for various sites,
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FY1990 Enforcement Accomplishments Report
which arc collectively referred to as the St. Louis
Airport Sites. These sites are generally located
near Lambert-St. Louis International Airport, in
St. Louis, MO. The sites are contaminated with
wastes related to uranium ore processing
activities conducted for the Manhattan Engineer
District, and subsequently the Atomic Energy
Commission. The Federal Facility Compliance
Agreement requires DOE to conduct a Remedial
Investigation and feasibility study for these sites
and to conduct the selected remedial action(s).
The estimated project costs are $800 million.
In the matter of U.S. Department of Energy,
MQund Plant; In August 1990, EPA and DOE
entered into a two-party Federal Facility
Agreement under CERCLA § 120 for DOE's Mound
Plant in Miamisburg, OH. The costs of cleaning
up the Mound site may reach $800 million.
Mound produced detonators for the nuclear
weapons program. Environmental hazards
discovered at the site include a leaking landfill
and the migration of plutonium wastes off-site.
The terms of the agreement specify that
DOE will conduct an RI/FS and will implement
the RD/RA following the selection of a remedy.
As in other Federal facility cases, EPA
successfully concluded a Superfund agreement at
Mound well before the statutory deadline of 180
days after the completion of an RI/FS.
In the matter of U.S. Department of Energy. Feed
MatcrialsJBroduction Center, Fernald, OH; An
interagency agreement with the U.S. Department
of Energy (DOE) for the cleanup of the Feed
Materials Production Center (FMPC) in Fernald,
OH, became effective June 29,1990. DOE's five-
year cleanup plan projects $2 billion in
expenditures through 1996. DOE permanently
stopped production at FMPC October 1,1990, but
750 production workers are being retrained as
field technicians for the cleanup. The 1,250-acre
FMPC is primarily a uranium metals processing
facility that makes products for the U.S. nuclear
weapons program. The Hanford, WA, plant and
Fernald will be models for the cleanup of 17 other
DOE nuclear installations and other government
and privately owned nuclear activity sites.
The agreement requires DOE to conduct four
removal actions more quickly address critical
areas before a final comprehensive cleanup is
performed. EPA will oversee removal actions
that DOE must perform, specifically: removing
contaminated ground water from under FMPC
buildings; stabilizing and reducing radon
emissions tanks containing radioactive residues
from the Manhattan Project; collecting
contaminated storm-water runoff from the waste
pit areas; and intercepting the contaminated
ground-water plume in the off-site Paddy's Run
area before it reaches the Great Miami River.
To simplify this comprehensive cleanup,
the site has been divided into five separate units.
For each unit, DOE will complete the
investigation and the study of contamination and
implement the selected remedy according to the
schedule set by the five separate decision
documents.
The agreement ensures that DOE will
quickly clean up the facility in a way that is
most protective of human health and the
environment.
Resource Conservation and Recovery
Act (RCRA) Enforcement
The RCRA enforcement program supports a
comprehensive regulatory and corrective action
program to ensure the safe treatment, storage, and
disposal of hazardous wastes. In FY 1990 the
program reflected the continued transition from
enforcing interim status requirements to enforcing
requirements in permits and closure plans,
requiring and enforcing corrective action in
permits and orders, and enforcing the hazardous
waste export and land disposal restriction
regulations. In particular, the RCRA enforcement
program launched a major initiative to enforce
the land disposal restrictions (LDR) provisions
under RCRA. The LDR initiative resulted in
eight judicial cases filed by EPA and the
Department of Justice.
American Mining Congress v. EPA; In a decision
upholding EPA's jurisdiction under the Resource
Conservation and Recovery Act, a federal
appeals court held July 10,1990, that EPA did not
exceed its statutory authority in regulating
certain metal smelting residues as "solid wastes"
under RCRA even where such residues "may at
some time in the future be reclaimed" via return
to the original process generating those residues.
The decision, by the U.S. Court of Appeals
for the D.C. Circuit, clearly supports EPA's
position that recyclable materials may be
"discarded" and thus within RCRA's jurisdiction.
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FY1990 Enforcement Accomplishments Report
The Court explicitly stated that "potential
reuse" of a material does not preclude Subtitle C
regulation as a "solid waste."
The decision extends the D.C. Circuit's June
26 decision in API v. EPA, which also upheld
EPA's authority to regulate recyclable material
under RCRA, signaling an important clarification
in the court's approach to recycling issues.
In the matter of AVCO Textron Lvcomine; In one
of the first export cases under the Resource
Conservation and Recovery Act, Region I filed an
administrative complaint April 4, 1990, against
AVCO Corp. Textron Lycoming. The complaint,
involving one of the larger administrative
penalties sought under RCRA, alleged a number
of violations of the RCRA export rules. EPA seeks
a penalty of $254,000. The export regulations
require prior consent from the receiving country
before hazardous wastes are exported. EPA
claims that AVCO failed to get Consent for
exports that exceeded quantities specified in an
original consent, thereby exporting several
hundred shipments without consent.
Additionally, EPA alleges that several other
export and manifest requirements were violated.
U.S. and the State of Louisiana v. Browning-
Ferris Industries - Chemical Services .Inc.. and
CECOS International. Inc.: A consent decree was
entered in the U.S. District Court for the Western
District of Louisiana, on August 16,1990 involving
these Browning-Ferris subsidiaries which
operate a facility in Lake Charles, Louisiana
that handles hazardous wastes. A number of
violations and environmental problems were
discovered as a result of a joint
EPA/NEIC/LaDEQ inspection in 1987. In
addition to paying $1.55 million in civil
penalties for the violations, the settlement
included an environmental audit of the facility's
operating procedures and interim measures to
address environmental releases at the facility.
The civil penalties will be equally divided with
the State of Louisiana. Also included was
withdrawal of the RCRA permit appeal, subject
to agreed modifications.
U.S. v. Browning Ferris Industries; In September
1990, Region II concluded a settlement with
Browning Ferris Industries (BFI) providing for
payment of $600,000 in penalties and treble
damages, plus approximately $60,000 in past
costs, for its violation of an administrative order
requiring it to install stainless steel cased
monitoring wells at the South Brunswick Landfill
site in New Jersey. BFI had challenged the order
in District Court and the U.S. Court of Appeals
for the Second Circuit, claiming that EPA's choice
of stainless steel (as opposed to PVC plastic) was
arbitrary and capricious, and that EPA was
precluded from issuing the order at all since the
remedial work at the site was carried out
pursuant to an earlier RCRA §7003 consent order.
BFI lost that challenge, and will comply with
EPA's CERCLA monitoring order in addition to
paying penalties, treble damages and past costs.
This will be one of the first treble damage
settlements.
In the matter of Cannon Craft Company: This
action addresses a severe violation of land
disposal ban and significant deviation from the
regulations. Cannon Craft Company in Sulphur
Springs, Texas, manufactures finished wooden
louver blinds. An administrative civil complaint
was filed on September 28, 1990, under RCRA
with a proposed penalty of $818,700, demanding
compliance with regulations. Allegations
included disposal and storage of hazardous waste
without a permit, land disposal of restricted
hazardous waste, failure to make a hazardous
waste determination, no contingency plan, no
personnel training, and poor container
management. EPA alleges that the facility was
generating hazardous wastes, including spent
solvents, and was disposing of it by pouring it on
the ground.
In the matter of Cardell Cabinets. Inc.; Cardell
Cabinets in San Antonio, Texas, manufactures
wooden cabinets. An administrative civil
complaint was issued on September 28,1990, under
RCRA with a proposed penalty of $774,065,
demanding compliance with regulations.
Allegations included violations of requirements
for generators of hazardous waste (including
spent solvents), storage of hazardous wastes
without a permit, and disposal of hazardous
wastes by allowing open drainage from the
facility onto the ground in violation of the land
disposal restrictions.
U.S. v. Chemical Waste Management. Inc.; A
consent decree lodged in September, 1990 and
approved by the Court in November, 1990,
provides that Chemical Waste Management, Inc.
(CWM) must pay a $750,000 penalty for RCRA
violations at its Vickery, OH, facility. EPA sued
CWM in 1988 for failure to either apply for a
permit or submit a closure plan for five surface
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Impoundments by November 8, 1985, the statutory
loss of interim status (LOIS) deadline. EPA's
lawsuit also sought stipulated penalties for two
failures by CWM to submit timely and adequate
ground water monitoring reports under a prior
agreement. In addition to the penalty, the
settlement dismisses CWM's counterclaim and
establishes deadlines for submitting closure plans
for the surface impoundments. EPA and CWM
also agreed to a deadline by which CWM must
dose an enormous sludge pile.
U.S. v. Conservation Chemical of Illinois
The United States obtained summary judgment on
liability and favorable rulings in all other
pending motions in this RCRA LOIS case, one of
the first such cases filed (in 1986). The
Government named the corporation and the
president/chief stockholder as defendants.
Summary judgment was previously granted
against the president, who was involved in the
facility's operations and a 90 percent
shareholder. The court found that the company
president was also liable as the "operator. "
The court reaffirmed EPA's authority to
enforce RCRA in authorized states and ruled that
earlier activities may be included in RCRA
liability. Finally, the court ruled that CCCI had
lost interim status by admittedly failing to
certify compliance with groundwater monitoring
and financial responsibility requirements.
U.S. v. Clean Harbors of Cleveland : In August,
1990, an action was filed against Clean Harbors
of Cleveland, Inc. (formerly Chem Clear Inc.),
which owns and operates a facility for the
treatment of industrial wastewater and sludge.
The complaint filed in this matter cited
violations of interim status standards applicable
to hazardous waste treatment, storage and
disposal facilities, and non-compliance with a
consent decree and final order issued against
Chem Clear on March 4, 1985 for violations of
interim status standards. The complaint also
included a claim for corrective action at the
facility.
As a result of this action, a consent decree
was entered into by the parties. The consent
decree required payment of a civil penalty of
$60,000 and corrective action regarding release of
approximately 2, 500-3,000 gallons of chromic
acid from a tank on the facility. The penalty
agreed to in the consent decree is in addition to an
earlier administrative penalty of $45,000.
Moreover, the consent decree provides for conduct
of environmentally beneficial projects, including .
a favorable injunctive settlement requiring
remedial work including a broad array of
sampling and analysis activities at the entire
facility. If these activities result in detection of
certain levels of contamination, cleanup of soil
and groundwater are required. Defendant's
obligations to conduct investigations and, where
necessary, perform remedial work, include areas
of the site and hazardous constituents unrelated
to the chromic acid spill.
U.S. v. Copperweld Steel Co.! Copperweld Steel
Co. will pay a $110,000 RCRA civil penalty and
perform a RCRA closure of its surface
impoundment, waste pile, and landfills under a
consent decree entered May 14, 1990, in Federal
District court in Ohio. Copperweld's Warren,
Ohio, plant manufactures steel and steel alloys
through the electric arc furnace (EAF) process.
The consent decree requires correction of RCRA
violations in Copperweld's treatment, storage
and disposal of EAF dust and other hazardous
wastes. The government claims that these
occurred in the Warren plant's container storage
area, EAF baghouse, unpermitted waste pile, and
land disposal facilities. Copperweld further is
required to establish financial assurance for
post-closure care.
In the matter of CF Chemicals; EPA issued an
Administrative Order to CP Chemicals for the
continued use of its hazardous waste surface
impoundments (Lagoons 1-3) for a limited time
beyond the statutory date for Loss of Interim
Status. The Administrative Order also cited
numerous violations revealed during an EPA
inspection. A Consent Agreement and Final Order
has been agreed to between EPA and CP
Chemicals that includes $242,500 in penalties,
which is the largest administrative settlement to
date in Region IV.
U.S. v. Escambia Treating Co. Inc. et al,: On
December 20, 1990, the United States District
Court for the Northern District of Florida entered
a partial consent decree in the Escambia Treating
Company case. This RCRA civil action initiated
by Region IV concerns an alleged scheme to
insulate the assets of a regional wood treating
enterprise from its environmental liabilities,
carried out by the controlling shareholder
through a corporate reorganization and
leveraged buy-out using an employee stock
ownership plan. The complaint alleged
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violations at each of the four Escambia Treating
facilities related to closure, post-closure care,
groundwater monitoring and assessment, and loss
of interim status, as well as claims for corrective
action and claims under the Florida Fraudulent
Conveyances Statute. The defendants included
Escambia Treating Company, Inc. and its parent
and successor corporations, the individual
shareholder who initiated the scheme (Soule Jr.)
and his parents.
The consent decree settles all claims
against the corporate defendants, now under new
management, and it requires them to undertake
corrective action and compliance with the
regulatory requirements. The Soule Srs. were
recently dismissed without prejudice. EPA is
pursuing its claims for penalties and other relief
against Soule Jr. The authorized RCRA programs
of three non-party states will participate in the
review and approval of plans and permit
applications submitted under the decree. As* part
of the. consent decree negotiations, EPA entered
into Memoranda of Understanding with the
states of Florida, Georgia and Mississippi,
detailing the roles of the states and EPA in
review of documents, dispute resolution and
enforcement.
In a related action filed in 1987, the present
ESOP trustees sued Soule Jr., alleging that he had
fraudulently overvalued the stock sold to the
ESOP by failing to factor into its price the
environmental cleanup liabilities of the business.
On September 7, 1990, after a four week trial, a
jury found that Soule Jr. had
committed fraud under the federal securities laws
and state law and had breached his fiduciary
duties as a trustee of the ESOP. The jury ordered
Soule Jr. to pay $2.29 million in compensatory
damages and $100,000 in punitive damages. By
year-end, the trial judge had not yet ruled on
pending opposing motions to enter and to set aside
the verdict. Under the EPA consent decree, any
funds recovered by the companies from Soule Jr.
will be placed in escrow accounts set aside for the
RCRA cleanups. Following an investigation in
which EPA cooperated, on September 21, 1990,
the Department of Labor filed suit against Soule
Jr. for violations of the Employee Retirement
Income Security Act, based on his actions as a
trustee of the ESOP in connection with the
leveraged buy-out and corporate reorganization.
It is alleged that Soule Jr. breached his fiduciary
duties and defrauded the ESOP by failing to
disclose RCRA liabilities in the buy-out and by
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acting to insulate himself from environmental
liability at the expense of the ESOP.
U.S. v. Environmental Waste Control; On October
31, 1990, the United States Court of Appeals for
the Seventh Circuit affirmed in all respects the
district court's order assessing $2.778 million in
civil penalties, the highest RCRA civil judicial
penalty ever assessed by a court. This case was
originally filed as part of the Agency's loss of
interim status initiative to enforce the
groundwater monitoring and financial
responsibility provisions of RCRA. In affirming
the district court, the Seventh Circuit also
permanently enjoined operation of the landfill
and ordered corrective action, rejected the
company's "good faith" defense, and rejected its
claim of reliance on allegedly erroneous
statements by the RCRA hotline.
Tn the matter of General Electric Company;
General Electric Company's West Burlington,
Iowa, operations include painting and degreasing
processes which generated halogenated and non-
halogenated spent solvents. In September 1990,
EPA's Region VII office and GE entered an
Administrative Order on Consent pursuant to §
3008(h) of RCRA requiring GE to conduct a RCRA
Facility Investigation (RFI) and Corrective
Measures Study (CMS). This Order is
particularly significant because it is one of the
first in the Nation to provide for third-party
mediation pursuant to EPA "Final Guidance on
Use of Alternative Dispute Resolution techniques
in Enforcement Actions" (August 14, 1987) to
resolve additional work disputes. Virgin solvents
were stored in 55-gallon drums and a 350-gallon
above-ground tank; spent solvents were stored in
55-gallon drums. Operations at the facility
resulted in releases of hazardous wastes or
hazardous waste constituents to the soil and
groundwater at its former West Burlington, Iowa
switchboard and switch-gear manufacturing
facility. Sampling and soil excavation was
conducted during closure of the hazardous waste
container storage area in 1986. Further soil and
hydrogeologic investigations were conducted in
late 1986 and in 1987, A phase III hydrogeologic
investigation is currently in progress.
Tn the matter of Gilbert & Bennett Manufacturing
Company; In July, 1990, Region I filed an
administrative enforcement action against the
Gilbert and Bennett Manufacturing Company of
Georgetown, Connecticut. This administrative
action includes one of the largest RCRA penalty
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FY1990 Erforcement Accomplishments Report
assessments in the Region. The complaint seeks a
penalty of $587,114 for the operation of
hazardous waste surface impoundments between
November 1985 and August 1987 without a permit
or interim status, the operation of a hazardous
waste container storage facility from October
1989 until January 1990 without a permit or
interim status, the failure to implement a
groundwater monitoring program from November
1981 until January 1989, the failure to determine
the groundwater concentrations of all of the
required parameters for each quarter of required
groundwater monitoring during 1989, and several
additional base RCRA program violations. The
Gilbert and Bennett Company manufactured
metal wire fence from November 1980 until July
1989 when the company ceased all manufacturing
operations and commenced a facility wide
cleanup. During operation, Gilbert and Bennett
generated several RCRA hazardous wastes,
including waste acids, waste alkalis, solvent
waste, lead skimming waste, and metal
hydroxide sludge.
In the matter of TRM Corporation - Manassas. VA;
On March 1,1989, EPA and IBM entered into a
Consent Order pursuant to §3008(h) of RCRA.
Under the terms of this Consent Order, IBM was
required to complete an onsite and offsite
investigation of the nature and extent of the
contamination emanating from its facility and to
conduct a study which evaluated various cleanup
alternatives. IBM completed this investigation
and submitted to EPA for approval a Corrective
Measure Study (CMS) which evaluated four
Corrective Measure Alternatives (CMAs) for
contaminant remediation. Based on the final EPA
approved CMS, EPA prepared a RCRA Record of
Decision (ROD), signed by the Regional
Administrator in July, 1990, that provides EPA's
rationale for the selection of the CMA. The
selected CMA addresses onsite and offsite
groundwater contamination as well as onsite
source remediation. This is the first RCRA ROD
written in the country.
In the matter of Walt Disney. Inc.: As part of an
administrative enforcement initiative aimed at a
group of California generators who improperly
shipped hazardous wastes to facilities in
Wyoming and Utah, Region VIII initiated an
administrative enforcement action against the
Walt Disney Company for improper disposal of
spent solvents and other hazardous wastes. This
action resulted in a settlement that included a
civil penalty of $550,000, plus an environmental
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audit of all domestic facilities of the corporation,
and an environmental training program. The
penalty obtained as a result of this action is eight
times larger than any previous administrative
penalty collected by Region VIII under any
statute.
U.S. v. ILCO. et al.t On December 10,1990, more
than two years after the case went to trial, the
U.S. District Court for the Northern District of
Alabama issued its decision in United States v.
ILCO, et al. This action includes claims under the
Resource Conservation and Recovery Act (RCRA),
the Clean Water Act (CWA), and the
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA),
against ILCO (a.k.a. Interstate Lead Company) a
secondary lead smelter located in Leeds,
Alabama. The court found that ILCO had
violated numerous provisions of RCRA.
Significantly, the court found that the furnace
blast slag generated by ILCO is EP toxic for lead,
and therefore a hazardous waste under RCRA.
The court also found that the sampling method
employed by ILCO to test the slag is not
appropriate under the RCRA regulations.
The court also found that ILCO had
discharged pollutants in violation of its NPDES
permit on at least 340 occasions, and that ILCO
had discharged pollutants without a permit on at
least 194 occasions. Accordingly, the court found
ILCO, as well as its president Diego Maffei,
liable for civil penalties and injunctive relief.
However, the court has not yet ruled on the
penalties. The court also found ILCO and Maffei
liable under CERCLA for response costs incurred
by the United States in responding to an ILCO
disposal site.
U.S. v. Lacks. Industries, Inc.; A federal court in
Michigan ordered an electroplater to pay
$250,000 in civil penalties and implement a
closure plan under RCRA for the firm's seepage
lagoons. The June 22 decision by the U.S. District
Court for the Western District of Michigan
involved Lacks Industries, Inc., an electroplater
that plated plastic automobile parts at its
Saranac, Michigan, facility.
Judge Gibson found that Lacks disposed of
metal hydroxides rinse water in unlined seepage
lagoons throughout the 1970s and continuing
through February 1982. Lacks failed to notify
EPA as a hazardous waste handler in 1980 or
submit a Part A permit application for its
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FY1990 Enforcement Accomplishments Report
facility under the Resource Conservation and
Recovery Act. The firm never received interim
status, failed to comply with the ground water
monitoring and financial responsibility
requirements of RCRA, and did not submit a Part
B application. Finally, Lacks' discharges to the
seepage lagoon, violated the terms of its NPDES
permit, which prohibited discharge of rinse
water into ground water after February 1981.
U.S. v. LaClede Steel: In July, 1990, the
complaint was filed in this RCRA section 3008(a)
action. This action concerns the LaClede Steel
facility in Alton, Illinois which generates K061
electric arc furnace (baghouse) dust from its steel
production. Although this case is the third civil
judicial case seeking to enforce the land disposal
restrictions requirements, it is the first case to
involve primarily LDR violations. The alleged
LDR violations include failure to perform
adequate waste analysis, failure to, keep proper
records, and unlawful land disposal.
U.S. v. Marine Shale Processors; In June, 1990,
the United States filed a multimedia civil
judicial action against Marine Shale Processors,
Inc. (MSP) of St. Mary's Parish, Louisiana
pursuant to RCRA and the Clean Water Act. In
this action, the United States alleges that MSP
is a "sham recycler" that has been improperly
operating without a RCRA permit. In addition,
the United States alleges that MSP violated the
Land Disposal Restrictions requirements by
placing waste that exceeded treatment standards
on the ground at its facility in Louisiana. MSP,
the largest burner of hazardous waste in the
country, claims not to operate an incinerator but to
run an exempt recycling operation that burns
hazardous waste in order to recover the fuel
value in the waste and produce a product that it
claims to market as "aggregate" or fill material.
U.S. v. Master Metals. Inc.; A consent decree
requiring Master Metals, Inc. to close specified
treatment, storage, and disposal units was
entered in January 1990. EPA alleged that Master
Metals had lost its interim status (temporary
authority) to legally operate all units except for
certain container storage areas that were not
subject to loss-of-interim-status provisions. The
settlement also required Master Metals (which
emerged from bankruptcy in 1988) to pay a
$20,000 civil penalty, comply with RCRA
operating and management requirements, prepare
closure plans for the entire facility, maintain
financial assurance and obtain financial liability
coverage. The decree also required Master Metals
to stop using all operating hazardous waste units,
to remove all waste from the units and to close
them if proper financial liability coverage was
not obtained within 180 days.
On July 9, 1990, Master Metals filed a
motion requesting an additional six months to
comply, claiming it was impossible to obtain
coverage. On August 29,1990, EPA petitioned the
court to enforce the decree and hold Master
Metals in contempt. The Government supported
its motion with affidavits about . the
availability of liability coverage and
documentation of continuing violations of the
decree. Master Metals opposed the Government's.
motion on October 5,1990. Additional pleadings
were filed by both parties. Following a status
conference on February 4,1991, the Court agreed to
issue an order requiring the defendant to obtain
the required liability coverage or close.
Stipulated penalties for the consent decree
violations are still being evaluated.
In the matter of Fenberthy Electromelt
International. Inc.; On June 7,1990, EPA obtained
an administrative warrant for entry into the
Penberthy Electromelt International, Inc. facility
in Seattle, Washington, for the purpose of
determining the need for corrective action at the
facility. The owner/operator had submitted a
RCRA Part B permit application for the storage
and treatment of hazardous waste. The
treatment involved thermal treatment units that
use electric current to raise temperatures to the
desired level, with the purported effect of
destroying hazardous wastes. A warrant was
required because of the owner's refusal to allow
access to the building housing the thermal
treatment units during routine inspection.
U.S. v. Sanders Lead Company: On October 18,
1989, a complaint was filed against Sanders Lead
Company, a secondary lead smelter located in
Troy, Alabama. The Complaint seeks civil
penalties and injunctive relief for numerous
violations of RCRA, as well as corrective action.
The alleged violations include illegal operation
of at least seven land disposal units for up to two
years after the facility had lost interim status to
operate those units. Alleged violations also
include discharge of acidic waste into a surface
impoundment in violation of the RCRA land
disposal restrictions, and other miscellaneous
regulatory violations. The action also seeks
corrective action to address the release of lead
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FY1990 Enforcement Accomplishments Report
and other heavy metals into the environment
from the facility. The case is currently in
discovery, and is set for trial on September 3,
1991.
U.S.v. Solvents Recovery Service of New England
et al. (RCRA/CERCLA): In July, 1990, a civil
judicial action was filed against Solvents
Recovery Service of New England, Inc. (SRSNE)
for violations of SRSNE's hazardous waste
permits, for violations of RCRA's Land Disposal
Restrictions, and for cost recovery for EPA-funded
cleanup activities being performed under
CERCLA authority. At the same time, the
United States filed a motion to enforce a consent
decree entered between SRSNE and the United
States in 1983. SRSNE is a RCRA-permitted
hazardous waste treatment and storage facility
located in Southington, Connecticut. Since 1955, it
has accepted waste solvents from numerous
generators, at first distilling them and reselling
them to generators, later blending them into a
hazardous waste fuel for resale. The Complaint
seeks civil penalties for the RCRA violations;
$777,000 in past response costs under CERCLA;
the recovery of all future costs to be incurred in
cleaning up the site; the revocation of SRSNE's
authority to operate a hazardous waste
management facility; and the closure of the
facility in accordance with an approved closure
plan. The motion to enforce the consent decree
seeks penalties for violations of the decree and
the rebuilding of a groundwater recovery system
which SRSNE was required to build and operate.
Discovery is presently underway.
U. S. v. United Technologies Corporation: In
September, 1990, a civil judicial suit was filed
against United Technologies Corporation (UTC),
a major government contractor which
manufactures aircraft engines and parts. The suit
alleges over one hundred violations of RCRA at
six different UTC facilities in Connecticut. The
government is seeking injunctive relief and a civil
penalty. Despite numerous EPA administrative
actions in recent years, the government alleges
the company has failed to comply with RCRA's
requirements for storage and handling of
hazardous wastes. The case is notable in that it
combines RCRA violations at various facilities
into a single lawsuit. The environmental benefit
to be achieved by proceeding in this manner is
that, rather than simply curing isolated
violations at a particular plant, a major
corporation is being forced to improve its overall
environmental management practices across a
wider spectrum of its facilities. As part of any
settlement, the government will be seeking a
multi-facility, multi-media audit. The audit
would seek to detect any additional
environmental compliance problems and suggest
improvements in operating procedures to prevent
future compliance problems.
U.S. v. Vmeland Chemical Co.r Inc.; In the second
largest penalty award of its kind, a federal
district court in New Jersey April 30 ordered the
Vineland Chemical Co. and its owners to pay
$1,223,000 in civil penalties for violating federal
hazardous waste management laws. Criticizing
the bad faith of the defendants, Judge John F.
Gerry of the U.S. District Court for the District of
New Jersey ordered penalties of $1,000 per day
for each of the 1,233 days of violations of the Loss
of Interim Status provisions of the Resource
Conservation and Recovery Act.
Toxic Substances Control Act
(TSCA) Enforcement
TSCA enforcement responds to violations of
regulations for .both new (pre-manufacturing
notification) and existing chemicals. In FY 1990,
asbestos enforcement emphasized compliance
with the recently enacted Asbestos Hazardous
and Emergency Response Act (AHERA). PCB
enforcement centered upon violations involving
permitted disposal sites or intermediate
handlers and brokers. Significant attention also
was devoted to ensuring the proper cleanup of
PCB-contaminated natural gas pipelines (e.g.,
the landmark Texas Eastern case, see below).
U.S. v. Boliden Metech; A final decision of the
Administrator affirmed convincingly the Initial
Decision of the Administrative Law Judge that
Boliden had a duty to assure that material and
oil containing PCBs did not enter the
environment. Significant defenses raised by
Boliden were also rejected, including the
contention that government inspectors illegally
searched the perimeter of the Boliden property
in violation of the 29th Amendment to the
Constitution "right to privacy" and that EPA
needed to collect "statistically representative"
samples in order to prove violations of the PCB
storage and disposal violations. The final
decision holds that EPA evidence of
contamination in a number of scrap metal piles
was sufficient evidence to prove that illegal PCB
disposal had taken place. A $32,000 fine was
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FY1990 Enforcement Accomplishments Report
imposed.
To obtain full site decontamination, a
complaint was filed in Federal District Court.
The Region aggressively pursued settlement of
the judicial action against Boliden Metech during
FY 1990, and by the end of the fiscal year reached
a settlement in principle. This case is significant
because of its technical complexities concerning
shredder fluff and analytical methodologies.
Successful settlement of this complex case will
result in a comprehensive environmental cleanup
of PCB contamination at Boliden Metech's Rhode
Island site. The terms of the settlement raise a
complicated international export issue which
required coordination with foreign contacts and
the Agency's International Affairs Office.
In the Matter of Celotex Corp.: In a strong
precedent for increasing penalties for prior
knowledge of regulatory requirements and bad
attitude, Administrative Law Judge Yost April 12
fined Celotex Corp. $31,900 for PCB violations at
their Peoria, Illinois, facility. Region V
successfully presented a prirna facia case
concerning the failure of Celotex to maintain
annual inventory records, visual inspections of
transformers for: leaks and improper marking and
storage of PCBs. A total penalty of $45,550 was
proposed.
While Judge Yost rejected EPA's attempt to
use a prior PCB_settlement as evidence of a
"history of prior violations" to increase the
penalty by 50 percent, he did agree with Region
V to raise the fine by 10 percent because Celotex
had knowledge of the PCB regulations, failed to
provide certain documents the inspector requested
and failed to correct certain violations identified
by the inspector.
U.S. v. Chemical Waste Management; Region V
and Chemical Waste Management (CWM)
Chemical Services, Inc. signed a consent
agreement and consent order calling for payment
of a $3.75 million civil penalty for violating the
PCB disposal requirements of TSCA. The $3.75
Million penalty is the largest administrative
penalty ever imposed on a single facility in EPA's
history. The complaint was based on a review of
CWM's operating records, the company's own
internal investigation, and inspections by NEIC
and Region V. This case is significant because it
involves violations of the PCB disposal and
permit requirements of the regulations.
Violations of these requirements by commercial
storage or disposal operators are the highest
priority of the PCB enforcement program and
maximum penalties will be sought.
In the matter of DSM Resins. Inc.: Region II has
continued its active enforcement of TSCA Import
and PMN requirements. In September the Region
issued an administrative complaint to DSM
Resins, Inc., citing violations of §5 and §13, and
proposing a penalty of $2.3 million. DSM is a
subsidiary of a large Dutch-based chemical
conglomerate. After Region II inspected the
firm's import operations, the company "self-
confessed" to many violations including failure to
file pre-manufacturing notifications prior to
importation and failure to submit notices of
commencement of import immediately after
import. The complaint also cites instances of
failure to certify or improper certifications to the
Customs Service at the times of importation.
In the matter of General Electric; Regions III, V,
VI, and X issued five administrative complaints
against General Electric for violating the
disposal requirements for PCBs under TSCA. EPA
proposed to assess a total civil penalty of
$4,057,275 for operating a solvent distillation
system without a permit in the above regions.
These cases are significant because they involve
violations of the PCB disposal and permit
requirements of the regulations. Settlement
discussions and motions are pending. Violations
of these requirements by commercial storage or
disposal operators are the highest priority of the
PCB enforcement program and maximum
penalties will be sought.
In the Matter of General Industrial Insulation.
Inc. (AHERA): In July 1990, EPA and General
Industrial Insulation, Inc. (Gil), an asbestos
contractor in Benicia, California agreed on an
$8500 settlement of an enforcement action that
was brought against Gil under the Toxic
Substances Control Act's asbestos-in-schools rule,
the Asbestos Hazard Emergency Response Act
(AHERA). The complaint charged Gil with
failure to properly collect sufficient air clearance
samples after an asbestos removal project at a
school district. Under AHERA, asbestos
contractors are required to follow prescribed
abatement procedures designed to protect the
environment and the health and well-being of
school occupants and abatement workers.
In the matter of P. P. George:
This
administrative enforcement action was brought
pursuant to the Toxic Substances Control Act
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FY1990 Enforcement Accomplishments Report
CTSCA), 15 U.S.C. 260l£tS§a- In March of 1989,
EPA filed an administrative complaint against
the P. D. George Company. The Complaint stated
that EPA had reason to believe that PDG
violated TSCA by: manufacturing nine chemical
substances prior to submitting a premanufacture
notification (PMN) to EPA, and by failing to
properly report a Notice of Commencement
(NOC) for a chemical substance in accordance
with the applicable regulations.
TSCA §5 and regulations promulgated
thereunder require 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 §15(1)(B).
The Respondent has filed the appropriate
TSCA §5 notices (premanufacture notices (PMNs),
polymer exemption applications, etc.) for all 9
substances. All chemicals completed the TSCA
review without imposition of a §5(e) or 5(f) order.
Further, the Respondent has corrected all of the
notices of commencement for these 9 substances.
The March 16, 1989, administrative complaint
proposed a gravity based penalty of $1,909,000
for these violations. During the course of
negotiations PDG was able to demonstrate to
EPA's satisfaction that 8 of the 9 chemicals were
eligible for application of the polymer exemption
rule. Therefore, the proposed gravity-based
penalty was revised to equal $1,261,000.
On October 2, 1990 the Chief Judicial
Officer ratified a Consent Agreement that
requires P.D. George to: pay a $527,850 penalty;
recover and incinerate buried drums of paint
wastes and resins; and conduct a TSCA 5 and 8
Audit to identify and correct reporting violations
under these statutory provisions. P.D. George
intends to spend more than $200,000 to recover
and incinerate the buried drums of paint wastes
and resins, and an additional $210,000 to conduct
the TSCA §5 and §8 Audit. Stipulated penalties
will accrue for those violations identified,
reported, and corrected under the Audit.
In the matter of Hall-Kimbrell (AHERA): This
administrative complaint was filed for over $1
million. The company failed to properly conduct
inspections and write asbestos management plans
for Local Education Agencies. Since Hall-
Kimbrell is one of the largest companies in this
business, this action should send a clear message
to other contractors that EPA is serious about
enforcing the AHERA. Hall-Kimbrell has
offered the Region a proposed settlement which
would be on a global basis for all ten regions.
Region VIII is currently working with
headquarters and the other nine regions to reach
an agreement for a national settlement.
In the Matter of Halocarbon Products Co.; The
first TSCA administrative complaint has been
filed involving a known fatality from a chemical
release subject to the substantial risk reporting
provision of the statute. An administrative
complaint was filed seeking a penalty of $175,000
against Halocarbon Pro ducts Corporation of
Hackensack, NJ.
The complaint charges Halocarbon with
violating the substantial risk reporting provision
of §8(e) of TSCA. Halocarbon failed to submit
information to EPA regarding the human health
effects of a chemical mixture that killed one
employee and seriously injured another as the
result of an accidental release of the substance in
February 1989.
EPA read about the death and inspected
the company in March 1989 and discovered that
Halocarbon had never submitted the required
§8(e) substantial risk information on the
chemical mixture to the Agency. EPA is seeking
the statutory maximum of $25,000 per day for
each business day that Halocarbon failed to file
the §8(e) report.
In the matter of Monsanto: This administrative
enforcement action was brought pursuant to the
Toxic Substances Control Act (TSCA), 15 U.S.C.
2601 ej seq. On or about October 15, 1981,
Monsanto obtained a copy of a draft report of a
two-year chronic toxicity and carcinogenicity
study of Santogard PVI in the rat (hereinafter
referred to as the "study"). The information
contained in the draft study indicated a
dose-related increase in the number of female
rats with benign liver tumors. On July 1, 1986,
Monsanto submitted the final report of the study
to EPA as a "For Your Information" submission.
On August 4,1989, the Office of Compliance
Monitoring filed a $ 253,200 complaint against
the Monsanto Company alleging that Monsanto
had failed to report the study in a timely
manner. EPA alleged that the study was TSCA
8(e) toxicological data and the Respondent was
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required to have submitted the study within 15
working days of its receipt. On January 3, 1990
the Chief Judicial Officer approved a Consent
Agreement in which Monsanto was required to
pay $196,230 and conduct an extensive TSCA
§8(e) audit. Studies submitted under the audit
were subject to stipulated penalties. In August of
1990, Monsanto completed its TSCA 8(e) audit
and paid an additional $648,000 in stipulated
penalties.
In the Matter of Nippon Paint (America) Corp.
and PPG Industries, Inc.: EPA issued a civil
administrative Complaint charging Nippon
Paint (America) Corporation and PPG Industries
with import and/or domestic manufacture of
seventeen chemicals not on the TSCA inventory of
existing chemical substances. On July 24, 1990,
the Chief Judicial Officer approved a Consent
Agreement and Consent Order settling the TSCA
§5 and §13 administrative enforcement action
against Nippon Paint (America) Corporation and
PPG Industries. Under terms of the settlement,
Nippon and PPG are jointly and severally liable
for a civil penalty of $360,000 for import and
domestic manufacture of 17 chemical substances
before completion of the PMN review period or
without timely submission -of a notice of
commencement.
In the matter of Rollins: In 1988, Region II issued
an administrative complaint to Rollins
Environmental Services, Inc., for violation of the
regulations governing PCB disposal. The
complaint sought a penalty of $25,000 for Rollins'
failure to properly incinerate PCB-contaminated
rinsate. Rollins declined to settle, and in 1989 the
Region filed a motion for accelerated decision on
the issue of liability, which was granted by the
Administrative Law Judge (ALJ).
The parties were ordered to confer to
attempt a penalty settlement, but when this
proved unsuccessful, the ALJ took briefs and
heard oral argument on the penalty issue. In July
the ALJ issued a decision awarding no penalty,
finding the regulations and the penalty policy
ambiguous. The Region appealed this decision,
and the Agency's Judicial Officer ruled in
September essentially reversing the earlier ALJ
decision, and awarded a $20,000 penalty, which
he increased to $25,000 in light of Rollins'
history of past violations.
In the matter of Sherex Polymers. Inc.: On
January 5,1990, EPA filed a civil administrative
Complaint against Sherex Polymers, Inc.
(Sherex). The Complaint charged Sherex with
failing to submit a premanufacture notice (PMN)
to EPA at least 90 days prior to manufacturing, on
84 separate occasions, a new chemical substance,
as required by TSCA §5(a)(l)(A) and 40 CFR Part
720. EPA proposed, in the Complaint, a
Gravity-Based Penalty (GBP) of $840,000. On
January 30, 1990, the Chief Judicial Officer
signed the Consent Order assessing a civil
penalty of $252,000.
The GBP was adjusted downward by 50% to
reflect Sherex's prompt self-confession of the
violations to EPA. This resulted in an adjusted
proposed penalty of $420,000. For purposes of
settlement, consistent with other similar TSCA
§5 settlements, EPA further reduced the adjusted
proposed penalty by 15% for taking all steps
reasonably expected by EPA to mitigate the
violations. EPA reduced the civil penalty in this
case by an additional 5% ($42,000), to $252,000,
in consideration of Respondent implementing a
pollution prevention project at its Lakeland,
Florida facility. Respondent agreed to complete
all design and construction work within 12 months
of receipt of the executed Consent Agreement, and
that it would replace the existing filtration and
recycling system by the end of this period. The
pollution prevention project generally consists of
replacing an existing filter system on a dimer
fatty acid production unit at the Sherex Polymers
Lakeland, Florida facility. The project shall
result in waste reduction of at least 500,000
pounds of filter cake annually and increase the
recovery of reusable fatty acid material by over
250,000 pounds annually (based on current
production volumes and laboratory studies of the
equipment). Respondent stipulated that the
total cost of the pollution prevention project
would exceed $525,000. Respondent submitted to
EPA a written interim status report within six
months of its receipt of the executed Consent
Order. The latest cost estimate is that the project
would cost approximately $700,000. Respondent
shall submit a final status report within one
month of the commencement of active operations
of the new filtration system, that, is, no more than
13 months after receipt of the executed Consent
Order.
In the matter of Standard Scrap Metal. Inc.; A
recent decision involving Region V's case against
Standard Scrap Metal, Inc. strengthens EPA's
enforcement capability concerning PCB spills.
Prior to February 17, 1978, PCBs spills were
considered "in service,", and not regulated unless
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they were removed from the site. Based on this
interpretation, Region V lost its case against
Standard Scrap Metal, who claimed that PCBs
found in soil on its property were spilled prior to
1978. Region V appealed the case. On August 2,
1990, the Chief Judicial Officer ruled that the
prior interpretation of the regulations was
applicable solely to landfills or disposal sites,
and that a facility does not become a disposal
site or landfill merely because PCBs have been
spilled on it. Thus, the disposal site exemption
for PCB spills which occurred prior to 1978 was
not available to Standard Scrap Metal. Under
this ruling, respondents can no longer rely on the
occurrence date of PCB spills to avoid PCB
cleanup responsibility.
In the _matter... of Leonard Strandley, Purdyr
Washington: Administrative Law Judge Greene
issued an Order on October 31, 1989, which
assessed a penalty of $103,500 against the
respondent, Leonard Strandley. The Order
resulted from a Complaint dated November 15,
1984 — and amended January 19, 1988 — which
had been before the ALJ for several years. This
case alleged PCB disposal, storage, marking, and
recordkeeping violations associated with Mr.
Strandley's (now defunct) scrapping and oil
recycling operations at the Purdy, Washington
site. The Order acknowledged EPA's desire to
structure the penalty assessment to support the
cleanup of the Purdy, Washington site, which is
currently being cleaned up under CERCLA, and
permanently remitted all but $5,000 of the
assessed penalty on the condition that the
Respondent document that an amount equaling at
least the remitted amount had been expended
towards cleanup of the site.
In tfrg matter of 3—V Chemical Corporation; This
administrative enforcement action was brought
pursuant to the Toxic Substances Control Act
(TSCA), 15 U.S.C. 2601 ej seq. Beginning in
August of 1987, 3-V Chemical voluntarily
self-disclosed the violations which were the
subject of the complaint. The Respondent had
discovered that they had: on multiple occasions,
imported a chemical substance in violation of
TSCA §§5 and 13; failed to submit a letter of
intent to test a substance as required by two
separate §4 regulations; and failed to supply a
notice of export under TSCA §12(b) for an export
of a substance that was the subject of a TSCA §4
rule.
TSCA §5 and regulations promulgated
thereunder require a person intending to
manufacture (includes import) 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. EPA
alleged in its complaint that 3-V had failed to
submit a PMN in compliance with TSCA §5. The
failure to comply with these requirements is a
violation of TSCA §15(1)(B). Regulations
implementing TSCA §13 requires that importers
certify whether the imported substances are
subject to, and are in compliance with, TSCA or
that the imported substance is not subject to
TSCA. EPA alleged in its complaint that 3-V
had failed to properly certify the TSCA status of
its importations. The failure to comply with the
import certification requirements is a violation of
TSCA §15(3)(B).
After self-disclosing these violations to
EPA, the Respondent took all steps reasonably
expected to mitigate and correct the violations.
On July 21, 1989, EPA issued an administrative
complaint which calculated a gravity based
penalty of $150,000.
On August 7th the Chief Judicial Officer
approved a Consent Agreement in the Matter of
3-V Chemical Company. The Consent Agreement
requires the Respondent to pay a $30,000 penalty
and implement an environmentally beneficial
program. Although the enforcement action
against 3-V was for violations of TSCA §4,5, and
13, 3-V has agreed to purchase and install a
solvent recycling system that is intended to
reduce by more than 50 percent it's emissions of an
unregulated ozone depleting substance (1,1,1-
trichloroethane) and a probable human
carcinogen (dichloromethane). Emissions of these
substances are not prohibited or restricted by
current Federal law. Further, 3-V has agreed to
implement a leak and detection program for
fugitive emissions of these two solvents, and will
report annually on their pollution prevention
efforts.
U.S. v. Texas Eastern Transmission Corporation:
In October 1989, the District Court for the Eastern
District of Texas entered a Consent Decree in
settlement of a civil action by the United States
charging Texas Eastern with the illegal disposal
of PCBs and other hazardous wastes at 89 natural
gas pipeline compressor sites in 14 states. The
violations involve TSCA, CERCLA and RCRA. In
the settlement, Texas Eastern agreed to pay a
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civil penalty of $15,000,000 dollars. This is the
largest fine ever collected by the United States
for any environmental violation. In addition,
Texas Eastern agreed to decontaminate the
spilled PCBs and chemicals at a cost estimated to
exceed $500,000,000 dollars. Texas Eastern will
also pay EPA more than $18,000,000 for oversight
costs including the services of a contractor who
will work for EPA to supervise site operations and
and sampling data. The cleanup program is
expected to take more than 7 years.
Following entry of the Consent Decree, the
Commonwealth of Pennsylvania appealed the
settlement to the Fifth Circuit Court of Appeals,
charging that state interests in ensuring cleanup
were not adequately considered and that they
were entitled to intervene in the suit, as a matter
of right. This contention was rejected by the
Court on February 13,1991.
U.S. v. Transwestern Pipeline Co.: This company
operates a number of compressor stations on an
interstate pipeline. Region VI has successfully
negotiated with the company for the first
regional consent decree under TSCA to address
polychlorinated biphenyl (PCB) contamination
of a natural gas pipeline and associated
compressor stations. The consent decree was filed
June 13, 1990, in the U.S. District Court in New
Mexico. The consent decree provides for
assessment of the extent of the PCB
contamination and cleanup standards for soil and
equipment contamination. The cleanup costs are
estimated at $60 million. The consent decree
requires that the company provide an oversight
contractor for use by EPA to determine compliance
with the consent decree. Additionally, a penalty
of $375,000 was collected.
The consent decree was negotiated so that
the interests of the State of New Mexico were
protected. The New Mexico Environmental
Improvement Division, the U.S. Bureau of Land
Management, and the New Mexico State Land
Office were involved in the negotiations as much
as possible, and they were kept informed of all
progress toward the completion of the
negotiations. The Navajo and Laguna Indians
were informed of the results of the negotiations.
The consent decree reserves the rights of all other
environmental statutes so that if violations of
other laws are found during the cleanup, that
program may take any action necessary. This has
been important for the RCRA program, in that
RCRA constituents have been found in the ground
water at one of the sites. The TSCA program has
been keeping the RCRA program informed of all
information concerning the contamination.
Tn the Matter of Union Camp Corporation; On
December 5, 1989, EPA filed a civil
administrative Complaint against Union Camp
Corporation alleging violations of the TSCA §5
premanufacture notification (PMN) regulations
and proposing a penalty of $285,000. The case
was settled on May 29, 1990, by Consent
Agreement and Consent Order the terms of which
provided for payment of a $106,000 penalty,
submission of revised company policy and
procedures for PMN compliance, and development
and implementation of a five-year program of
annual day-long TSCA New Chemical
Compliance Meetings for employees having
responsibility for compliance with the PMN
requirements of TSCA.
In the matter of Union Electric Company; This
case is an example of how Region VII used
administrative enforcement under TSCA to obtain
environmentally beneficial expenditures to
dispose of PCBs. In 1983, EPA Region VII issued
an approval to the Union Electric Company (UE),
St. Louis, Missouri, to dispose of its own PCB oils
in a high efficiency boiler. In 1988. and 1989,
Region VII inspected the boiler facility and
discovered violations of the UE approval. Two
administrative complaints were issued. The
upfront civil penalty obtained was $79,500. In
the settlement, UE agrees to disposal of its 173
remaining askerol transformers containing 22,000
gallons of askerol oil by March 1992. UE
provided financial assurance for the closure of its
Labadie PCB burn facility in accordance with a
closure plan submitted.
In addition, the approval granted UE in
1983, which contained no expiration date was
modified to include, among other things, an
expiration date of March 1995. By the time the
approval expires, UE will have incinerated
750,000 gallons of PCB oil in addition to the
amounts already destroyed. This would include
oil from 25,000 PCB and PCB-contaminated
transformers at an estimated cost of $4.5 million.
The deferred portion of the penalty was $150,000.
In the matter of Upjohn; A complaint was issued
against the Upjohn Company of Kalamazoo,
Michigan on July 10, 1989, alleging one count of
submitting a chemical to the original TSCA
inventory, even though the company never
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FY1990 Enforcement Accomplishments Report
manufactured the chemical, and four counts of
manufacturing new chemical substances without
going through the PMN process. The proposed
penalty was $771,000. Upjohn voluntarily
disclosed the alleged violations in a meeting
held at Upjohn's request. EPA and Upjohn agreed
to settle the case with Upjohn paying a $400,000
penalty.
In the matter of Velsicol: EPA initiated an
administrative enforcement action against
Velsicol on July 17, 1990. EPA alleged that
Velsicol failed to maintain all of the records
required under 40 CFR Part 720.78 to support the
PMN that was submitted for one chemical,
manufactured another chemical on two separate
occasions prior to the end of the PMN review
period, and used and distributed the last
chemical on one occasion prior to the end of the
PMN review period. The complaint proposed
$51,000 and collected the full amount. Although
this company is headquartered in Region V,
Velsicol's corporate officials contacted EPA's
Headquarters directly in order to process their
concerns about the manufacture of the chemicals.
EPA's Headquarters conferred with the Regional
staff and jointly processed the case which
resulted in a collection of the full penalty.
In the matter of Worthen Industries. Inc.: On
December 10, 1986, an EPA/NEIC inspector
lawfully inspected Respondent's Nashua, New
Hampshire facility to review Respondent's
compliance with TSCA §5 and§ 8. On March 16,
1989, EPA filed a civil administrative complaint
against Worthen Industries, Inc. seeking a civil
penalty in the amount of $3,429,500 for failing to
properly submit PMNs and NOCs for the
chemical substances. Based upon records and
information submitted by Worthen subsequent to
the issuance of the Complaint, EPA concluded
that certain chemical substances were
manufactured, processed and distributed in
commerce as indirect food additives for the time
period alleged in the Complaint. Thus, these
chemical substances were not subject to the PMN
requirements of TSCA §5. The Agency amended
the complaint and reduced the total proposed
penalty to $175,000. During settlement
negotiations EPA agreed to reduce the proposed
civil penalty by 15% to $148,750. The 15%
reduction reflected the cooperation and good
faith demonstrated by Worthen in addressing the
alleged violations and in negotiating this
Consent Agreement, and Worthen's good faith
willingness to conduct an annual educational
program on the TSCA §5 and §8 requirements. On
May 14, 1990, the Chief Judicial Officer signed
the Consent Order assessing the $148,750 civil
penalty and providing for the TSCA educational
program.
Federal Facilities - TSCA
In the matter of U.S. Department of Energy,
Bonneville Power Administration; A
Memorandum of Agreement was signed on March
22, 1990, between EPA Region X and the U.S.
Department of Energy, Bonneville Power
Administration, Portland, Oregon, to address
extensive PCB contamination at four major
substations along the Pacific Northwest/Pacific
Southwest Electric Intertie in Oregon. All PCB
equipment at the substations will be disposed of
and PCB contamination at the substations will be
characterized and cleaned up. The Agreement
will result in the disposal of approximately one-
fourth of all PCB Capacitors in the BPA system.
In the matter of U.S. Navy. Naval Underwater
Warfare Engineering Station, Indian Island,
Washington; A Memorandum of Agreement
(MOA) was signed on December 1,1989, between
EPA Region X and the U.S. Department of the
Navy, Naval Sea Systems Command, to bring the
Navy into compliance at the Naval Undersea
Warfare Engineering Station, Indian Island,
Washington. The MOA arose from an enforcement
action against the Navy concerning the illegal
use of PCB-contaminated mine cable. (This cable
is used to tether undersea mines; however, such
use is not currently authorized under the PCB
Regulations and provides direct introduction of
PCBs into the environment.) The Agreement
provided for the elimination of all PCB-
contaminated mine cable at the Indian Island
facility and documentation of the disposal of the
mine cable. In addition, the Department of the
Navy agreed to enter into discussions with EPA
Headquarters to develop a program to identify
all PCB-contaminated mine cable presently in use
by the Navy throughout the world and to bring
the use of such cable into compliance with the
PCB Regulations.
In the matter of U.S. Pept. of Transportation,
Coast Guard Support Center. Kodiak. Alaska; A
Memorandum of Agreement (MOA) was signed on
November 27, 1989, between EPA Region X and
the U.S. Department of Transportation, United
States Coast Guard. The MOA resolved two
enforcement actions which alleged that the
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Coast Guard illegally distributed PCBs in
commerce and improperly disposed of PCBs by
allowing PCBs to leak from in-service equipment.
The Agreement provides for total remediation of
extensive PCB contamination throughout the U.S.
Coast Guard Support Center Kodiak in Kodiak,
Alaska. The contamination occurred primarily as
a result of equipment leakage in the electrical
distribution system at the Support Center. The
distribution system has been sold to the local
electrical utility, Kodiak Electric Association.
The Agreement provides for the proper disposal
of all electrical equipment regulated under TSCA.
Emergency Planning and Community
Right-to-Know Act (EPCRA)
Enforcement
Under EPCRA § 313 (Toxic Release
Inventory), subject manufacturing facilities must
provide EPA with annual data on total emissions
of toxic chemicals by environmental media. FY
1990 Enforcement efforts were taken against
nonreporters, as well as late and incorrect
reporters. Other provisions of EPCRA require the
reporting of accidental releases of toxic chemicals
to State and local emergency response offices.
In the Matter of All Regions Chemical Labs. Inc.;
The Administrative Law Judge's decision in this
case supports EPA's prompt enforcement for
violations of CERCLA §103 and EPCRA §304
reporting requirements. The case is significant
because it is the first time a penalty has been
assessed for failure to report a release of a
chemical under both CERCLA and EPCRA.
On December 1, 1989, Administrative Law
Judge Henry B. Frazier assessed the first
CERCLA §103 and EPCRA 304 penalty for failure
to report the accidental release of hazardous
substances into the environment. An Interlocutory
Order granting Complainant's Motion for Partial
Accelerated Decision was issued in this case on
May 3, 1989. The ALJ stated that the notification
requirements of CERCLA § 103 and EPCRA § 304,
while similar in their purpose to protect the
public and the environment in the event of
hazardous chemical releases, are separate and
independent requirements. Therefore, each
notification requirement must be met by the
responsible party.
The ALJ noted that the defendant had
failed to notify the National Response Center
immediately upon the release or the Local
Emergency Planning Committee and the State
Emergency Response Commission as soon as
practicable after the release and provide written
follow-up emergency notice.. The fact that the
local fire department was on the scene soon after
the release in no way diminished the requirement
that the person in charge at the site notify the
NRC. The ALJ assessed the defendant $20,000
under CERCLA §103 and $69,840 under EPCRA
§304. On July 2, 1990, Chief Judicial Officer
Ronald McCallum affirmed the decision of the
presiding officer assessing civil penalties of
$89,840 against All Regions Chemical Labs.
In the Matter of The Boeing Company. Seattle.
Washington; The Boeing Company Plant 2
facility in Seattle, Washington, was selected for
an EPCRA inspection based upon discrepancies in
Toxic Release Inventory reporting. The company
had reported to the local air pollution control
agency for releases of trichloroethylene but did
not apparently report that chemical to EPA. The
inspection revealed that the company had filed
a corrected Form R reporting for
trichloroethylene, but that the company had not
reported for five other chemicals. The records
which the company utilized in preparing the
reporting were not sufficient or comprehensive
enough to firmly establish that other chemicals
should have been reported. A Civil Complaint
proposing a penalty of $85,000 was issued to the
company on August 6,1990. The company did not
generally contest the facts of the complaint and
proposed as part of the settlement three projects
as Environmentally Beneficial Expenditures
(EBEs): solvent recovery, de-ionization and
decontamination of chromium wastewater, and
reduction of paint booth sludge and waste
disposal. The final assessed penalty was $72,250
with $29,750 of that amount to be suspended
conditional on successful completion of the EBEs.
In the Matter of BP Oil Company; In April 1990,
Region II completed a consent order with the BP
Oil company for release notification violations at
its Paulsboro, New Jersey facility. The agreement
provided for payment of $102,000 in penalties, a
record at that time.
In the Matter of Champion International
Corporation; Through a coordinated effort of the
Maine Department of Environmental Protection,
the Maine State Emergency Response
Commission, and Region I, an EPCRA
administrative complaint was issued against
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Champion International Corporation of
Bucksport, Maine for failing to make timely
notifications following a chlorine release.
Information provided by the Maine agencies was
used to establish the violations alleged in the
complaint. In settlement of the action, Champion
agreed to pay a $12,000 penalty and provide
$5,000 worth of computer hardware and software
enhancements to the Hancock County Emergency
Management Agency's computerized response and
contingency planning capabilities.
In the Matter of Citrus Hill Mfg. Co. Frost Proof,
EL: Region IV issued an administrative
complaint in response to a spill which was not
properly reported and exceeded the reportable
quantity (RQ) for ammonia. The case was part of
a headquarters initiative to emphasize the
importance of timely and accurate reporting under
§103 of CERCLA and §§304(a), (b) and (c) of the
Emergency Planning and Community Right to
Know Act (EPCRA). The RQ for ammonia is 100
Ibs. and the quantity reportedly spilled by Citrus
Hill was 300 Ibs. There was no known negative
impact to the offsite population or environment.
The parties have discussed a settlement
which considers numerous mitigating factors, e.g.,
Citrus Hill's demonstration of responsible
corporate involvement with its surrounding
community through educational seminars and
outreach programs. A penalty of $15,000 was
paid along with several environmentally
beneficial expenditures, (e.g., donation of a
chlorine repair kit to the local emergency
response team).
In the matter of Columbia Corrugated Boxr
Portland. Oregon: Columbia Corrugated Box is
the corporate parent of Packaging Resources, a
manufacturer of foam insulation and packaging
material. An analysis of information provided
by the company revealed that the facility failed
to file required Toxic Release Inventory reports
for Dichloromethane for reporting years 1987 and
1988 and for an isocyanate resin for 1987. A Civil
Complaint proposing a penalty of $51,000 was
issued to Columbia Corrugated on May 5, 1990.
Following receipt of the complaint, Columbia
Corrugated produced additional documentation
which was not available during the inspection.
This new information indicated that, contrary to
the information produced at the inspection, the
company did not meet the reporting thresholds
for two of the three counts listed in the
complaint. In mitigation of the penalty for the
remaining violation, the company proposed
Environmentally Beneficial Expenditures (EBEs)
in the form of equipment and process chemical
changes to avoid use of CFC materials. Further,
the company made another equipment change
which greatly reduced the amount of solvent used
in the manufacture of the foam packaging. A
settlement agreement was signed on August 22,
1990, providing an assessed penalty of $14,450 but
with a further reduction to $10,200 on completion
of the EBEs.
In the Matter of Eutectics Metals Co.; A fire at a
gold recovery facility located in Roanoke, Texas
necessitated the evacuation of nearby residents,
and triggered an investigation. It was found that
the facility had not given proper inventory
reports under EPCRA. The facility settled the
case for payments of a $30,000 penalty to EPA,
and payments of $4,000 each to the Denton
County and Tarrant County Local Emergency
Planning Committees and a payment of $2,000 to
a local fire department for use in local EPCRA
programs.
In the Matter of Hercules, Inc. Brunswick ,GA:
The complaint assesses a $15,000 penalty for
failure of the facility to properly report a spill
event in accordance with the requirements of
§103 of CERCLA. This case is part of a
headquarters initiative to bolster the importance
of timely and accurate reporting of spills. The
facility failed to timely and accurately report a
spill involving 1220 Ibs. of sodium hydroxide, a
"hazardous substance" as defined under Section
101 (14) of CERCLA.
In the Matter of Kemira. Inc. Savannah. GA..
(EPCRA/CWA/CAA): A complaint was filed
seeking to enforce against this facility's long
history of failure to submit material safety data
sheets (MSDSs) on propane and No. 2 fuel or to
include propane and No. 2 fuel on the list of
chemicals stored at the facility. In accordance
with EPCRA regulations, the facility should
have begun reporting in October 1987 and continue
submissions each March 1 for every year
thereafter. The facility's first MSDS report was
submitted in March 1990.
An investigation also revealed other
violations under EPCRA §304 and were combined
with previous CERCLA §103 violations,
resulting in one of the highest penalties
($355,000) assessed by Region IV to any single
facility. The complaint will cite Clean Water
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and Air violations and represents another
example of the Region's multi-media enforcement
initiative.
In the Matter of Seekonk Lace: Seekonk Lace was
the Region I's first EPCRA settlement providing
for environmentally beneficial expenditures by a
company. As part of the $15,000 settlement of
this $25,000 § 313 case, the respondent agreed to
spend approximately $95,000 to convert an
acetone-based solvent system used in lace
production at its Rhode Island facility to a
mechanical system which used no solvents. The
use of the toxic chemical acetone was completely
eliminated.
In the Matter of Wyman-Gordon Company, Inc.;
On September 28, 1990, Region I initiated one of
the largest enforcement actions brought to date
under EPCRA. This action, which combined for
the first time in the Region both the §313 and
302-312 components of the program, proposed
total penalties of $478,000 against the Wyman-
Gordon Company of North Grafton,
Massachusetts. The Region coordinated
inspections between the two EPCRA programs,
resulting in the development of a joint complaint
which comprehensively addressed all violations
of EPCRA at this facility, including failure to
file Toxic Release Inventory forms and failure to
submit chemical inventory information to local
and state authorities.
Federal Insecticide, Fungicide, &
Rodenticide Act (FIFRA) Enforcement
FIFRA establishes a federal registration
program for new and existing pesticides and gives
the States enforcement primacy for violations
involving pesticide misuse. FY 1990 enforcement
efforts centered upon violations of
suspension/cancellation requirements; product
mislabeling; sale of unregistered pesticides; and
violations of import-export requirements. The
pesticide program also took enforcement action
against significant violations involving pesticide
misuse upon referral from States.
In the Matter of Gotham Chemical: Region I
issued a major administrative complaint in FY
1990 against Gotham Chemical of Stamford,
Connecticut for sale and distribution of
disinfectants which were misbranded and
adulterated and about which the company made
claims that substantially differed from those
accepted as part of the pesticides' registration.
This case was referred to the Region from the
State of Connecticut. Proposed penalties in this
action are $45,400.
In the Matter of Safer, Inc.: Region I successfully
settled its case against Safer, Inc. of Wellesley,
MA in FY 1990. For several years, Safer has
made safety claims for its products in violation of
the FIFRA regulations, despite a notice of
warning issued by EPA Headquarters. The final
assessed penalty was $10,000. The settlement
included an environmentally beneficial
expenditure of $70,000 for production and
distribution of a pamphlet about the safe use of
pesticides by homeowners.
Pesticide Export Enforcement Initiative: EPA
issued complaints charging nine companies with
unlawful export of pesticides. The charges
included export of pesticides labeled only in
English to foreign countries in which English is
not an official language, failure to obtain a
statement from the foreign purchaser
acknowledging that the pesticide was not
registered for use in the United States, and
failure to label pesticides "Not Registered for
Use in the United States of America".
The companies charged in these complaints
are Pow Chemical Company, Shield-Brite
Corporation, Mobay Corporation, Exxon
Chemical Americas, Rohm and Haas Bayport,
Inc., Chevron Chemical Company, NL Industries,
Inc., Sandoz Crop Protection, and Monsanto
Chemical Corporation. Following is the outcome
for 5 of the 9 cases:
In the Matter of Chevron Chemical Company: On
July 16,1990, a Consent Agreement and Consent
Order was issued settling the pesticide export
case against Chevron. Based on evidence
presented by EPA of violations not alleged in the
civil administrative Complaint, Chevron paid a
penalty of $72,000, representing 100% of the
proposed penalty for the original counts, in
addition to counts discovered after the filing of
the Complaint. Chevron also revised its internal
operating procedures for pesticide exports after
review by its Label Task Force formed as a result
of this case.
In the Matter of Dow Chemical Company: On
May 15,1990, a Consent Agreement and Consent
Order was issued by which Dow agreed to pay
100% of the proposed penalty of $22,400.
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In the Matter of Exxon Chemical Americas: On
May 14,1990, a Consent Agreement and Consent
Order was issued by which Exxon agreed to pay
100% of the proposed penalty of $36,400.
In the Matter of Mobay Corporation: On July 25,
1990, a Consent Agreement and Consent Order was
issued settling the pesticide export case filed
against Mobay Corporation. Mobay paid a civil
administrative penalty of $97,840 to settle the
case,
In the Matter of Rohm & Haas Company: On
September 11, 1990, the Chief Judicial Officer
issued a Consent order settling the civil
administrative proceeding filed against Rohm &
Haas for violations of the pesticide export
regulations. Both Rohm & Haas Company and
BASF Corporation were parties to the settlement
agreement as a result of the contractual
arrangement between the companies. BASF was
the exporter of record for most of the shipments
noted in the complaint, and so, took an active role
in the settlement negotiations. The companies
agreed to pay $19,200 in settlement.
Criminal Enforcement - All Statutes
U.S. v. Auten (CWA): The owner of a Florida
used tire business was sentenced July 25 to a three
year period of probation for unlawfully dumping
thousands of tires into the West Palm Beach
Canal. John C. Auten of West Palm Beach,
Florida was also ordered to pay the South
Florida Water Management District restitution in
the amount of $16,829.88 for the cost of removing
tires from the canal. In addition, as a consequence
of Auten's conviction for violating the CWA,
Auten's business, Caroline Tires, Inc., is on the List
of Violating Facilities and is ineligible for
federally funded contracts, grants, or loans.
As further punishment, Auten was ordered
to perform 300 hours of environmentally-related
community service. As part of his community
service, the court ordered Auten to assist the'
Water Management District in removing the
illegally dumped tires from canal banks. This
was a joint FBI-EPA Criminal Investigation. The
Palm Beach County Sheriffs Department also
assisted in the investigation.
U. S. v. John Borowski and Borjohn Optical
Technology. Inc. (CWA): On May 23, 1990, a
federal jury convicted Borjohn Optical
Technology, Inc. and its president, John Borowski,
4-54
of illegally discharging toxic metals and
dangerous chemicals into the sewer system and
endangering company employees in the process.
At the sentencing on October 7,1990, Mr. Borowski
received 26 months in prison, to be followed by
two years of probation, and a $400,000 fine.
Borjohn Optical was fined $50,000 and was
ordered to make a lump sum payment of $15,500
for medical bills for two employees. As a
consequence of the conviction, Borjohn Optical is
on the List of Violating Facilities* and is
ineligible for federally funded contracts, grants,
or loans. This is the first time that an individual
or a corporation has been convicted of knowing
endangerment under the Clean Water Act. The
defendants ordered workers to discharge nickel
plating and nitric acid solutions containing
illegal concentrations of nickel and illegally low
pH into the sewer system in Burlington,
Massachusetts which is tied into the
Massachusetts Water Resource Authority's
treatment plant, which in turn discharges into
Boston Harbor.
During the illegal disposals, the
employees were exposed to toxic levels of nickel,
nitric acid, and nitrogen dioxide. Exposure to
nitric acid and its fumes may result in serious
burns and life-threatening respiratory tract
damage. Exposure to nickel may result in severe
skin disease, asthma, and an increased risk of
cancer. The illegal discharges stemmed from
Borjohn's metal finishing operation, in which the
company plated various metals, including nickel,
onto Bradley Fighting Vehicle elevation mirrors,
M-l tank mirrors, and Cruise Missile folding
mirrors.
U.S. v. Robert Coble and Raymond Brittain
(CWA): A former water pollution plant
supervisor was sentenced March 27, 1990 to a
5-year term of imprisonment, with all but 4
months suspended, and was placed on 5 years
probation. Robert Coble pled guilty on January 24
to one felony false statement count for filing false
discharge monitoring reports and one
misdemeanor count under the Water Act for
discharges in violation of a National Pollutant
Discharge Elimination System permit.
Coble, former Water Pollution Control
Plant Supervisor of the City of Enid, Oklahoma,
and Raymond T. Brittain, former Superintendent
of Public Utilities (and Coble's supervisor) were
charged on December 12, 1989, by a 48-count
indictment with falsifying discharge monitoring
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FY1990 Enforcement Accomplishments Report
reports and illegal bypassing of the sewage
treatment plant. Brittain was convicted by a jury
on 18 counts of false statements and two counts of
CWA violations. He was sentenced on March 31,
1990 to one year imprisonment on each of the 20
counts, to be served concurrently, and ordered to
pay a special assessment on each count totaling
$950. -
The violations occurred before amendments
to the Clean Water Act made these violations
felonies, and prior to the applicability of the
Federal Sentencing Guidelines for individuals.
U.S. v. Thomas Capozziello (CAA): On December
15, 1989, following a two-week trial, the jury
returned guilty verdicts against Capozziello and
his company, Bridgeport Wrecking, for violating
federal NESHAPs standards relating to the
removal and handling of asbestos from buildings
that are being demolished. The case stemmed
from a citizen's complaint in connection with the
fall 1986 demolition of the Knudsen Dairy in
North Haven, Connecticut.
On March 16, 1990, Thomas Capozziello,
president of Bridgeport Wrecking Company, Inc.,
was sentenced to one year in prison, all but three
months suspended, three years probation, and a
$10,000 fine. His company was sentenced to pay a
$40,000 fine. The three months to be served by
Capozziello represented the longest prison term
in New England for a violation of the Clean Air
Act. As a consequence of the conviction,
Bridgeport Wrecking Company of Bridgeport,
Connecticut, is on the List of Violating Facilities
and is ineligible for federally funded contracts,
grants, or loans.
U.S. v. Chemical Commodities, Inc. (RCRA); On
January 5, 1990, Chemical Commodities, Inc.
(CCI), a Kansas corporation which is in the
chemical brokering business, entered a plea of
guilty to unlawfully disposing of a hazardous
waste in violation of VI U.S.C. S 6928(d)(2)(A)
(RCRA). On May 18,1990, the U.S. District Court
for the District of Kansas imposed a sentence of
five years probation and special conditions,
including liquidation, cessation of business except
to the extent necessary to liquidate, and
completion of clean-up operations at three CCI
locations in compliance with an approved closure
plan. Clean-up of the sites, including disposal of
all hazardous and radioactive wastes, is to be
performed under the direction and supervision of
an independent supervising contractor to be
selected by EPA. The company also was sentenced
to pay a $500,000 fine, which was suspended upon
condition that the company fulfills its
obligations under the sentencing order.
The conviction of the company was a result
of.a criminal investigation which revealed that
in the fall of 1988, Jerald Gershon, President and
owner of Chemical Commodities, Inc., ordered
several employees to destroy 40,000 ampules of
methyl bromide. The employees destroyed the
ampules by grinding them in a small peanut
grinder. The liquid methyl bromide volatilized
into gas and escaped into the air and the crushed
glass ampules were placed in a local landfill.
U.S. v. Crittenden Conversion Corporation
(RCRA): On March 20,1990, an information and a
plea agreement was filed in U.S. District Court,
Seattle, Washington, charging the Crittenden
Conversion Corporation with a one-count RCRA
felony violation (transporting hazardous waste
without a manifest). As part of the plea
agreement, Crittenden agreed to enter a guilty
plea to the charge and pay a fine of $25,000, plus
full restitution to the Washington State
Department of Ecology for the clean-iip, storage,
and disposal of 21 drums of material that had
been abandoned by the company in a wooded area
of Preston, Washington. This cost is estimated to
be approximately $18,000. On March 20, 1990,
Crittenden pled guilty to the one count and was
sentenced on May 3, 1990 to the agreed penalties
under the plea agreement.
U.S. v. Fisher RFM Electric Motors, Inc. and
Rodney R. Fisher (CWA); On February 8,1990, in
Portland, Oregon, Rodney R. Fisher was sentenced
to 3 months of imprisonment, 3 years probation
and fined $2,500 by U.S. District Court Judge
Malcolm F. March. Fisher pled guilty on
December 4, 1989, to one count of unlawful
disposal of motor cleaning solvents into an
adjacent stream, a misdemeanor under the Clean
Water Act. This plea was the result of a plea
bargain agreement which stipulated that all
remaining felony counts against Rodney R. Fisher
and Fisher RPM would be dismissed after
sentencing. As a consequence of the conviction,
Fisher RPM Electric Motors, Inc., of Portland,
Oregon, is on the List of Violating Facilities and
is ineligible for federally funded contracts,
grants, or loans.
U.S. v. J&J Investments (SDWA): In the first
criminal case brought under the underground
injection well provisions of the Safe Drinking
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FY1990 Enforcement Accomplishments Report
Water Act, a federal court Aug. 27, 1990,
sentenced a Michigan partnership to pay a fine of
$13,429. J & J Investments pled guilty to one count
of submitting false information to the
government.
U.S. v. Tnman & Associates (TSCA): U.S. District
Court Judge Hayden W. Head, in the Southern
District of Texas, fined a South Carolina firm and
a former employee for failure to report a spill of
polychlorinated biphenyls and illegal disposal.
Inman & Associates, Inc., a South Carolina firm,
was sentenced to three years probation and fined
$80,000 for failure to report the spill, caused by
its former employee, John McMichen. McMichen,
the former Inman employee, received a $5,000
fine.
The court suspended $40,000 of the fine
against the company, but said that the firm's
failure to make any of three installment
payments could be grounds for revocation of
probation and execution of the entire fine. Inman
& Associates pleaded guilty January 25,1990 to a
violation of the Comprehensive Environmental
Response, Compensation, and Liability Act for its
failure to notify the appropriate U.S. agency of
the spill. On the same date, McMichen also
pleaded guilty to the 1987 disposal of PCBs at
the Corpus Christ! Naval Air Station in
violation of the Toxics Substances Control Act.
The sentencing guidelines were inapplicable as
the violation occurred prior to November 1,1987.
U.S. v. Stephen L. Johnson and Country Estates
Investment. Inc. (CWA): In December 1988, the
Federal Grand Jury impaneled for the United
States District Court for the Western District of
Missouri indicted Stephen L. Johnson, a local
Springfield, Missouri, developer, and Johnson's
companies, Country Estates Investment, Inc. doing
business as Colony Cove Mobile Home Park for
one felony count violation of the Clean Water
Act. Johnson was charged with the knowing
discharge of pollutants from a point source into
navigable waters of the United States in
violation of the National Pollution Discharge
Elimination System as a result of a November 2,
1988, incident in which the mobile home park
built and operated by Johnson and his companies
had a spill from the mobile home park's sewage
lagoon, located in southeast Springfield,
Missouri. The spill, consisting of an estimated
750,000 gallons of effluent from the sewage
lagoon, resulted when Johnson used a bulldozer to
cut a beam holding the lagoon and allowing the
sewage to flow into a stream leading into Lake
Springfield.
On April 11, 1989, following the January 3
entry of a plea of guilty to the felony charge, a
United States Magistrate applied the Sentencing
Guidelines for the first time to a conviction under
the Clean Water Act, and sentenced Stephen L.
Johnson to serve five months in prison and to pay
a fine of $2,500; the corporation was sentenced to
pay a fine of $35,000. Johnson subsequently
appealed his conviction and sentence under
application of the Guidelines. The United States
Circuit Court of Appeals for the Eighth Circuit
entered its order September 21, 1990, rejecting
Johnson's appeal and sustaining the sentence of
the United States District Court. In November,
1991, Johnson began serving his sentence of
confinement at the Fort Scott, Kansas, Southeast
Regional Correction Center.
U.S. v. Tones (CWA): A Wall Street trader
pleaded guilty on May 25, 1990 to violating the
CWA and was sentenced to pay $2 million, the
largest monetary penalty ever assessed against
an individual in an environmental case. Paul
Tudor Jones II was charged by a one-count
information with negligent discharge of
pollutants in a case that involved the illegal
filling of 86 acres of wetlands on the Eastern
Shore of the Chesapeake Bay. William B. Ellin,
Jones's project manager for development of the
site, also was charged with six counts of
knowingly violating the CWA, and one count of
violating the Rivers and Harbors Act. Mr. Ellin
was convicted on January 5, 1991, of five felony
charges (4 counts of filling without a permit and
one count of violating the Rivers and Harbors
Act). He will be sentenced on April 15,1991.
The size of the filled wetlands makes this
the largest area ever involved in a Federal
criminal environmental enforcement case. Jones
was sentenced to 18 months probation, to pay a
$1,000,000 fine, to pay $1,000,000 in restitution, to
completely restore the damage to his property,
and to record a conservation easement to protect
2,500 acres of his property from future
development. As a consequence of the conviction,
Tudor Investment Corporation of New York, NY, is
on the List of 'Violating Facilities and is
ineligible for federally funded contracts, grants,
or loans.
The case is also notable because the
Department of Justice agreed with Mr. Jones to
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FY1990 Efforcement Accomplishments Report
the payment of the $1 million for restitution to be
held in trust by the National Fish and Wildlife
Foundation, to be used in the acquisition,
restoration, and management of neighboring
wetlands and endangered species habitat in the
nearby Blackwater National Wildlife Refuge.
The National Fish and Wildlife Foundation is a
private conservation organization established by
Congress in 1984 to benefit the programs of the
U.S. Fish and Wildlife Service. . -'' -
U.S. v. Konstandt Labs (FIFRA); On April 10,
1990, Konstandt Laboratories, Inc., and its owner,
Felix Konstandt, were sentenced for knowingly
providing false and fictitious test results to
Sigma Coatings, Inc., which had been required by
EPA to provide data about its marine coating
products. The lab falsified 19 separate results-of-
analysis reports. The company was fined
$100,000 under the Alternative Fines Act, for a
violation of 18 U.S.C. § 1001. Felix Konstadt was
fined $1,000, sentenced to one year probation, and
given a 30-day prison term, to be served under
house arrest or in a "halfway house," for
violation of FIFRA.
In 1987, EPA issued a "data call-in" to
Sigma Coatings, Inc., manufacturer of marine
coating products containing anti-foulants, which
are pesticides registered by EPA under FIFRA.
Sigma entered into a contract with Konstandt
Labs to perform the studies required by the data
call-in. During September 1987, Konstandt Labs
and its owner knowingly provided false and
fictitious test results to Sigma, which in turn
provided the false information to EPA.
U.S. v. John Meighan and U.S. v. David Cohen
(RCRA): Two former owners of a Baltimore
precious metal recycler were sentenced February
28, 1990 to prison terms of three years and 33
months, respectively, for violating the Resource
Conservation and Recovery Act. The site also has
been subject to a Superfund cleanup financed by a
potentially responsible party.
John Meighan, who received a three-year
sentence, was former owner of Capitol Assay
Laboratories, and pled guilty on December 11,
1989, to one count of illegal treatment, storage,
and disposal of hazardous waste. David Cohen
was sentenced to 33 months for an identical
charge, to which he had pled guilty on December
14, 1989. Cohen had owned the facility prior to
selling it to Meighan. Neither defendant was
sentenced under the Sentencing Guidelines, as the
violations to which they pled guilty occurred
prior to November 1,1987.
U.S. v. Angelo Paccione and Anthony Vulpis
(RCRA): On Oct. 3, 1990 two owners of private
carting companies were sentenced in the Southern
District of New York to 12 years and seven months
in prison for dumping thousands of tons of medical
waste, asbestos and other hazardous materials in
an illegal landfill on Staten Island. Judge
Constance Baker Motley, called the case "one of
the largest and most serious frauds ever
prosecuted in the United States involving
environmental damage."
The defendants, Angelo Paccione and
Anthony Vulpis, were convicted on June 8,1989,
after a three-month trial, of RICO violations for
running an illegal landfill on more than 70 acres.
Evidence at the trial showed that the land was
used as a dump for 500,000 tons of waste materials
that included garbage, asbestos and medical and
infectious waste. The land fill bordered housing
and wetlands, including a state-designated
white heron rookery. Cleanup has been
estimated at $15 million.
Judge Motley said she increased the
sentences because of the size of the fraud and
because Mr. Paccione and Mr. Vulpis had not
fulfilled an agreement to pay $22 million in fines,
forfeitures and penalties within 90 days of their
convictions. A third defendant, John McDonald,
who was convicted with Mr. Paccione of having
unlawfully collected, transported and stored
infectious medical waste, was sentenced to one
year in prison. These convictions resulted from a
joint investigation of the New York Office of
Criminal Investigations, New York Department
of Sanitation, and the FBI.
U.S. v. Martha C. Rose Chemicals Co.
(TSCA/CWA): In October of 1989, five corporate
officers and/or employees of the now defunct
Martha C. Rose Chemicals Co. in Holden,
Missouri, entered pleas of guilty to conspiracy to
defraud the EPA and other charges. They were
sentenced in the District of Missouri in the spring
of 1990. Sentencing ranged from probation to two
years imprisonment and a $10,000 fine for this
pre-sentencing guidelines case.
These five defendants joined a sixth
defendant who had previously pled guilty to
conspiracy and to falsifying records. The six
defendants were indicted after a lengthy
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FY1990 Enforcement Accomplishments Report
investigation into the treatment, transportation,
handling and storage of PCBs at the Martha C.
Rose Chemicals Co. The defendants were
indicted for conspiracy to defraud the EPA,
falsifying records required by TSCA, falsifying
NPDES records and improper storage of PCB
transformers. The Martha C. Rose Chemicals Co.
went bankrupt and abandoned the site, requiring
a $20 to $30 million Superfund cleanup. These
convictions were a result of an exhaustive EPA
and FBI criminal investigation.
U.S. v. Sherman Smith (R&HAfc On January 2,
1990, Sherman Smith was sentenced to 30 days
imprisonment, one year probation and a $2,000
fine as a consequence of his August 18,1989 guilty
pica to one misdemeanor count for violating the
Rivers and Harbor Act. Smith is the owner of
Seawall Construction Company of Seattle. The
case arose out of Smith's practice of engaging in
the unpermitted pumping of oil contaminated
wastewaters into Puget Sound from the tow
tugboats and barges operated by his company.
Smith had been issued repeated warnings and
citations by the U.S. Coast Guard and State of
Washington Department of Ecology concerning
this unlawful activity. Smith's refusal to comply
prompted the U.S. Attorneys Office to file a
complaint and to obtain an arrest warrant, in lieu
of proceeding by way of a summons for Smith,
when he repeated the wrongdoing on March 31,
1989.
U.S. v. Speach (RCRA): On September 27,1990
the former president of a California company
that operated mobile wastewater treatment units
was convicted by a federal jury in Los Angeles of
four counts of illegal transportation of a
hazardous waste and eleven counts of illegal
storage of hazardous wastes. Michael Robert
Speach had been president of ENV, Inc., at
Rancho Dominguez, California from 1973 to 1988.
He operated mobile wastewater treatment units
which generated F006 sludges at electroplating
shops in Southern California. In 1986, Speach
entered into an agreement with the operators of
Monarch Milling, an incomplete silver smelter at
Austin, Nevada to recover chromium from the
wastes.
The defendant began shipping drums of
F006 waste and corrosive waste to Monarch
Milling in September 1986, thereby saving
himself the costs of disposal while violating
RCRA.
Speach and his vice president for
operations, Charles E. Welch, were indicted on
June 21,1990. Welch pleaded guilty in July 1990
to one RCRA count of illegal storage and one
RCRA count of illegal transportation. Welch was
sentenced on October 15, 1990 to three years
probation and a $15,000 fine; Speach was
sentenced on December 3, 1990 to 6 months
imprisonment, 3 years probation, a $28,000 fine,
and 300 hours of community service.
U.S. v. Wells Metal Finishing. Inc. (CWA): The
owner of a Lowell, MA, metal-finishing firm was
sentenced to 15 months in prison March 22, 1990
for dumping cyanide and zinc into Lowell's sewer
system. It was the longest jail term ever handed
out in for a pretreatment violation. John Wells, of
Dunstable, the owner of Wells Metal Finishing,
Inc., was found guilty in December 1989 of 19
counts of violating the CWA, dumping wastes
between 1987 and February of 1989. The city of
Lowell reportedly spent $60,000 on cleanup. Judge
David Nelson of the U.S. District Court for the
District of Massachusetts fined Wells $60,000,
saying: "This is not just another white-collar
crime, but rather this is an extremely serious case
which could have had. devastating
environmental consequences." Assistant U.S.
Attorney Richard Welch tried the case. As a
consequence of the conviction, Wells Metal
Finishing, Inc., of Lowell, MA, was placed on the
List of Violating Facilities and is ineligible for
federally funded contracts, grants, or loans.
U.S. v. Bert Michael Willard (CERCLA): On July
31,1990, Bert Willard entered a guilty plea to one
count of violating CERCLA notification
requirements (42 U.S.C. 9603(b)) as a result of an
investigation into the dumping of hazardous
waste, asbestos, and electrical devises
(capacitors) containing polychlorinated
biphenyls (PCBs), at a site in Maple Valley,
Washington. The dump site along a dirt road was
discovered on May 18, 1990 by an off-duty police
officer. Among the items found at the site were a
number of large capacitors containing PCBs,
numerous bottles of flammable or corrosive
chemicals, and what has been estimated to be
over one thousand pounds of asbestos including
pipe wrappings, ropes, gaskets, and paper-like
sheets. On January 16, 1991, Mr. Willard was
sentenced to 5 years probation, 6 months of "home
detention," 200 hours community service, and
$15,000 in restitution.
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FY 1990 Enforcement Accomplishments Report
say
•
Contractor Listing
Under the Clean Air Act (CAA) 306 and
the Clean Water Act (CWA) 508, EPA has
authority to prevent facilities that violate
Federal water pollution and air pollution
standards from receiving Federally funded
contracts, grants or loans, by placing the facility
on the List of Violating Facilities. Facilities
owned or operated by persons who are convicted
of violating air standards under CAA 113(c) or
water standards under CWA 309(c) (and involved
in the violations) are "automatically" listed,
effective the date of the conviction (referred to as
mandatory listing). Facilities which are
mandatorily listed remain on the List until EPA
determines that they have corrected the
conditions which led to the violations.
Facilities may also be listed, at the
discretion of the Assistant Administrator (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
the Clean Water Act after one or more
enforcement actions have been brought against
the facility by EPA or a state enforcement agency.
Facilities recommended for discretionary listing
have a right to an informal administrative
proceeding. Facilities listed under discretionary
listing may be removed from the List
automatically after one year, unless the basis for
listing was a criminal conviction in a state court
or a court order in a civil enforcement action.
They may be removed from the List at any time if
the Assistant Administrator determines that the
facility has corrected the conditions which gave
rise to the listing or that the facility is on a plan
that will result in compliance.
Two significant Contractor Listing cases in
FY 1990 were Valmont Industries Inc. and Big
Apple Wrecking Corporation. The Assistant
Administrator's decision in the Valmont removal
case established the principle that the
company's poor attitude toward compliance with
environmental standards can be the condition
which led to a criminal conviction and therefore
the condition which needs to be corrected before a
facility will be removed from the List. Big
Apple Wrecking Corporation was the first
discretionary listing action brought against a
construction and demolition company. In this case
the Agency applied its interpretation of the
4-59
definition of "facility", ie. that the facility of a
construction company is the business address of
the company — not the building or demolition
site where the violation occurred.
Big Apple Wrecking Corporation: In a
discretionary listing action against Big Apple
Wrecking Corporation of Bronx, New York, Big
Apple filed a motion in the United States
District Court (D.Conn.) to enjoin the EPA from
introducing evidence in the listing proceeding of
alleged violations of the Asbestos NESHAP by
Big Apple at Naugatuck, Connecticut in 1986.
The same violations had been alleged in a civil
complaint filed in the District Court and the
civil action had been settled by a consent decree
entered by Judge Burns.
Big Apple argued that the consent decree
prohibits EPA from using the circumstances of the
Naugatuck demolition project as evidence of a
record of continuing or recurring noncompliance in
the subsequent listing proceeding. Judge Burns
denied Big Apple's motion on two grounds: (1)
She found that Big Apple had failed to establish
that introduction of evidence of the Naugatuck
violations in the listing proceeding would cause
irreparable harm or that Big Apple did not have
an adequate remedy at law for the alleged harm
that would occur if the case examiner were to rule
against Big Apple in the listing proceeding. U.S.
v. Big Apple Wrecking Corp.. Civ.No.
N-86218EBB, slip opinion at 4 (D.Conn., Oct. 20,
1989). (2) Judge Burns further found that "Even if
Big Apple could demonstrate irreparable harm,
it has not demonstrated a likelihood of success on
the merits." Ibid. She agreed with the findings
and logic of the case examiner's ruling on Big
Apple's motion to dismiss, finding that the new
violations, alleged to have occurred in New York
following the lodging of the consent decree in the
District Court for Connecticut, gave EPA cause to
initiate a listing proceeding and that the alleged
violations underlying the earlier consent decree
are admissible in the listing proceeding. Slip
opinion at 6. Following a hearing on October 24 -
25, 1989, the case examiner issued a decision on
January 1, 1990, that Big Apple should be listed.
Big Apple has appealed this decision to the EPA
General Counsel.
Valmnnt Industries. Inc.: When EPA did not issue
a determination on Valmont's request to remove it
from the EPA List of Violating Facilities within
the forty-five day period prescribed by the
regulations, the company filed suit against EPA
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FY1990 Enforcement Accomplishments Report
in the U.S. District Court for Nebraska, seeking a
temporary restraining order, a preliminary
injunction and a permanent injunction. On January
9,1990, the District Court ordered EPA to remove
Valmont from the List immediately, pending
further order of the court following the
completion of the removal proceeding and EPA's
final order. The Agency issued the Assistant
Administrator's initial decision in this matter on
January 12, 1990. The Assistant Administrator
determined that the condition requiring
correction was both the company's noncompliance
with permit requirements and the "corporate
attitude, culture and organization" which
supported concealment of violations. He further
determined that Valmont had not demonstrated
that it had corrected the corporate attitude and
therefore denied its removal request.
The case examiner's decision, issued on June
5, 1990, adopted the principles set forth in the
Assistant Administrator's determination, as
follows:
"(T]ha condition giving rise to the conviction in this
matter was Valmont's attitude toward its
environmental obligations, which elevated the
importance of the appearance of compliance over the
importance of accurate and truthful environmental
monitoring and reporting.... Valmont intentionally
tampered with pollutant monitoring methods... and
knowingly made a material false statement in at least
one Discharge Monitoring Report... These were
crimes of deception.. Valmont's corporate attitude led
to the tampering and falsification, and was the
condition giving rise to the conviction."
Case Examiner's Decision, at 15-16. Thus, this
case established the principle that the corporate
attitude toward environmental obligations may
be all or part of the condition which led to
violations and therefore the condition which
needs to be corrected. Nevertheless, the case
examiner concluded, on the facts in this case, that
the condition had been corrected — that Valmont
had demonstrated by the preponderance of
evidence introduced at the removal hearing that,
since its criminal conviction, Valmont had
changed its corporate attitude toward its
environmental obligations.
Update
An update is necessary to Page 30 of the EPA
Enforcement Accomplishments Report: FY 1989,
which references the settlement of a civil
judicial enforcement action filed in May 1989,
under the Resource Conservation and Recovery
Act against Envirite Corporation of Thomaston,
CT. In a Magistrate's recommended ruling, sent
to the U.S. District Court for the District of
Connecticut on April 4,1991, the Magistrate
recommended vacating the consent decree
between the United States and Envirite, ordering
the United States to reimburse the penalty
assessed under the agreement, and further
recommended directing EPA to correct the FY
1989 Accomplishments Report. At press time,
the Agency is planning to file objections to this
ruling.
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FY1990 Enforcement Accomplishments Report
V Building and Maintaining a Strong National Enforcement Program
Program Development
National Enforcement Training Institute
On February 26,1990, Senate Bill 2176, the Pollution Prosecution Act of 1990, was introduced in
Congress. Section 204 of the Act mandates that the Administrator shall, as soon as practicable but no
later than September 30, 1991, establish within the Office of Enforcement the National Enforcement
Training Institute to train Federal, State, and local personnel in the enforcement of the Nation's
environmental laws. The Act was signed into law by President Bush on November 16,1990, as Title II of
H.R.3338.
The Program Development and Training Branch (PDTB) in the Office of Enforcement has begun
work to comply with the Act, and to that end has been working with the National Enforcement
Investigations Center (NEIC) concerning major aspects of the Institute including: curriculum
development; the relationship of this training to employees' career paths; the development of State and
local government training delivery systems; funding; faculty; and management. (For further information
contact the Office of Enforcement's Office of Compliance Analysis and Program Operations)
Inspector Training and Development
The Agency evaluated progress and developed two reports on implementation of the inspector
training requirements under EPA Order 3500.1. This assessment came midway in the phased, three-year
(FY 1989 to FY 1991) implementation plan for the Order. The next deadline for training experienced
inspectors (those hired prior to June 1988) is October 1,1991. The first report, Building the Enforcement
Infrastructure: Compliance Inspector Training, analyzed accomplishments from the perspective of the
Compliance Programs. A second report, Report on Regional Status of Compliance Inspector Training,
analyzed the data from a Regional perspective. The reports revealed important accomplishments such
as the one-year national effort (4/89-4/90) by the Regions to deliver Basic Inspector Training to hundreds
of inspectors and supervisors. (For further information contact OCAPO)
Basic Negotiations Skills Training
During FY 1990, the Basic Negotiations Skills course became mandatory for all new attorneys
within one year of their arrival at EPA. Because of the new requirement, and a large number of new
program enforcement personnel, the course was offered 12 times and approximately 390 students were
trained. Negotiations training was also provided to the States of Oregon and Montana and will be
offered in early 1991 in Alaska and Connecticut. In an effort to expand the instructor base, the Program
Development and Training Branch (PDTB) developed and presented a "train the trainers" course which
will be offered at least once each year. (For further information contact OCAPO)
Penalty Calculation Model Training (BEN and ABEL)
The Program Development and Training Branch (PDTB) presented training on the BEN and
ABEL computer model for calculating penalties to six Regions and the State of Connecticut. The seven
courses trained a total of 204 enforcement personnel from EPA, the Department of Justice (DOJ), and 14
States. In addition to training, PDTB responded to over 600 inquiries regarding the BEN and ABEL
models and penalty issues. Inquiries were received from enforcement personnel at EPA, DOJ, other
Federal agencies, 20 States, and the United Kingdom. (For further information contact OCAPO)
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FY1990 Enforcement Accomplishments Report
National Reports on FY 1990 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 target 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 1990 will be available in March 1991.
Management improvements planned for each of the programs and new legislative authorities
(fijg., the Clean Air Act Amendments of 1990) should help the programs make further gains this year and
next. (For further information contact OCAPO)
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 for each program and
compares annual performance with historical trends. The FY 1990 report will be available in March
1991. (For further information contact OCAPO)
Summary of State-by-State Enforcement Activity for EPA and the States
Each year, EPA assembles an end-of-year report which summarizes quantitative indicators of
EPA and State enforcement activities on a State-by-state basis. The FY 1990 report is scheduled for
publication in March 1991. (For further information contact OCAPO)
Enforcement Effectiveness Case Studies
The Office of Enforcement, working with the Surface Water and Air Mobile Sources Programs,
developed a summary report of the health and environmental benefits of EPA and State enforcement
strategies over a 2-4 year period for: 1) the Mobile Source Lead Phasedown Program - a program to
reduce lead in gasoline; and 2) the National Municipal Policy (NMP) - an enforcement initiative to
improve compliance by publicly-owned wastewater treatment plants. The NMP report reveals that a
strong enforcement program achieved significant environmental benefits, and the Lead Phasedown Study
suggests that a strong enforcement program created deterrence, reflected by a sharp decline in the
frequency of new violations, after EPA began carefully auditing company records.
The Lead Phasedown study included as a measure of results the quantification of health effects
and monetary benefits associated with the reduction in lead levels resulting from the Agency's
enforcement actions. Estimated benefits include the removal of 150 million grams of lead from gasoline
production in the form of lead rights retired by the end of 1987. This reduction represents $40 million
worth of direct health benefits (1983 dollars).
In the case of the National Municipal Policy, measures included estimates of the reduction in
toxic and conventional pollutant loadings associated with the shift of facilities in the NMP universe to
secondary and/or advanced wastewater treatment. Based on these shifts, EPA estimates removal of an
additional 2325 million Ibs/day of conventional pollutants and removal of an additional 15,000 Ibs/day
of toxic pollutants. (For further information contact OCAPO, the Office of Mobile Sources for Lead
Phasedown, and the Office of Water Enforcement and Permits for NMP)
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FY1990 Enforcement Accomplishments Report
Intergovernmental/International Enforcement Activities
Occupational Safety and Health Administration (OSHA) Memorandum of
Understanding (MOU)
During the last half of FY 1990, EPA and the Occupational Safety and Health Administration
(OSHA), negotiated a Memorandum of Understanding (MOU) which was formally signed by
Administrator William Reilly and former Labor Secretary Elizabeth Dole on November 23, 1990. The
purpose of the MOU was to enhance the protection of the public, workers, and the environment from
violations at facilities subject to both EPA and OSHA jurisdiction. The MOU provides for coordinated
action in three areas: detecting violations, exchanging compliance information, and enforcement training.
EPA and OSHA will develop an annual workplan to implement the MOU and to identify specific areas
of coordinated activity for each fiscal year.
First, OSHA and EPA inspectors will cross-refer potential violations discovered during the
course of routine compliance inspections. The two agencies will also look for opportunities to target for
joint inspections in mutual priority categories of facilities, such as petrochemical plants or secondary
lead smelters, which may be in violation of both workplace and environmental standards. Any resulting
enforcement actions may incorporate both EPA and OSHA counts.
Second, EPA will provide OSHA with information from its national compliance/enforcement
data bases (e.g., past violations, enforcement actions, penalty assessments) and the Toxic Release
Inventory (TRI) which may help OSHA with its own compliance targeting strategies. In return, OSHA
will provide EPA with compliance and worker exposure data from its data base in support of specific EPA
enforcement actions or targeting strategies.
Third, EPA and OSHA inspectors and other compliance personnel will be given the opportunity
to participate in relevant components of each Agency's enforcement training program. The personnel from
both agencies will benefit from receiving a general understanding of, and familiarity with, each others'
programs and also receive training in specific areas of mutual enforcement activity. (For further
information contact OCAPO)
Securities and Exchange Commission (SECVEPA Cooperative Arrangement
The Securities and Exchange Commission (SEC) and EPA have enhanced cooperative efforts to
ensure accurate company disclosure of environmental liabilities to investors. In FY 1990, EPA expanded
the information exchanged and began to implement a system of quarterly reports to the SEC. The
quarterly reports now include: Potentially Responsible Parties at Superfund sites; pending and concluded
cases for RCRA and CERCLA enforcement; enforcement penalties from civil judicial cases; concluded
criminal cases; and companies barred under contractor listing. The SEC has been using the data for
targeting their reviews. In addition, based upon this information as well as selected cooperative
reviews of disclosure statements with EPA, the SEC has sent comment.letters to companies requesting
that filings be amended. (For further information contact OCAPO)
The First International Enforcement Workshop on the Environment
On May 8-10, 1990 the first International Enforcement Workshop was held in Utrecht, the
Netherlands, jointly sponsored by the U.S. Environmental Protection Agency and the Netherlands
Ministry of Housing, Physical Planning and Environment. It has heralded a new era of international
cooperation in environmental enforcement. The Workshop participants, which included senior
government environmental policy and enforcement officials from fourteen nations and two international
organizations, uniformly recommended that there be a follow up conference with broader sponsorship
and participation. Further, these leaders, coming from each region of the globe came away with a
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FY1990 Enforcement Accomplishments Report
commitment to strengthen local resolve to improve domestic and international enforcement programs in
regional as well as global exchanges.
The Workshop was designed to share experiences in environmental enforcement, to gain new
insights into how current programs can be improved, to create an international network of experts who
can continue to share and learn from each other's experiences, to raise the level of interest in
environmental enforcement, both within and among nations, and to explore ways to enhance
international cooperation in enforcement.
It addressed four themes: 1) domestic enforcement strategies and management systems, 2)
intergovernmental relationships, 3) international transboundary enforcement concerns related to import
and export of hazardous wastes and pesticides, and 4) implementation of international accords such as
the Montreal Protocol and Ocean Dumping Conventions.
j1 %
Published Workshop Proceedings include papers from over thirty distinguished authors, from
over ten nations on the elements of a successful enforcement program, both on domestic and international
issues. Copies of the Proceedings were widely disseminated throughout the U.S. to State and local
environmental and law enforcement officials and also to other nations. (For further information contact
OCAPO)
Clean Air Act
Clarification of EPA NESHAP Policy - Nonfriable ACM
On February 23,1990, OE-Air, and the Stationary Source Compliance Division (SSCD) issued a
reference memorandum clarifying the requirements of the Asbestos NESHAP regarding nonfriable
asbestos containing material (ACM), such as floor tile, roofing materials, packing and gaskets. The
memorandum states that these normally nonfriable ACM should be removed before demolition only if
they are in poor condition and are friable. If these materials are subjected to sanding, grinding, or
abrading as part of demolition or renovation, then they must be handled in accordance with NESHAP.
If a building is demolished by burning, all ACM must be removed prior to demolition. (For further
information contact the Office of Air and Radiation's Stationary Source Compliance Division (SSCD))
A Guide To the Asbestos NESHAP As Revised October 1990
Revisions to the Asbestos NESHAP were promulgated in October 1990. This document
incorporates the revisions to the existing Asbestos NESHAP in an easy to read format which promotes
understanding of the regulation by the States and the regulated community. (For further information
contact SSCD)
Field Guide: Reporting And Recording Requirements For Waste Disposal
This is a guide to help the regulated community comply with the new reporting and
recordkeeping requirements of the asbestos National Emission Standards for Hazardous Air Pollutants
(NESHAP). The specific responsibilities of waste generators, transporters and waste disposal site
operators are addressed, as well as detailed explanations of how to complete the new forms accurately
and efficiently. (For further information contact SSCD)
Stratospheric Ozone Protection Program. Compliance Actions
The first enforcement actions for violations of the Stratospheric Ozone Rule were taken during
1990. The Stratospheric Ozone Rule implements the provisions of the Montreal Protocol on Substances
that Deplete the Stratospheric Ozone Layer. Enforcement actions were completed in five cases involving
firms which imported chlorofluorocarbons without the required allowances. In addition to paying
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FY1990 Erf or cement Accomplishments Report
penalties for the violations, all violators obtained allowances that they should have had prior to
making their illegal importations. (For further information, contact SSCD)
Asbestos NESHAP Compilation
In September 1990, a compilation of all effective NESHAP applicability determinations was
completed by SSCD. The draft "blue book" has been sent to all EPA Regional NESHAP coordinators for
their use in planning and enforcing the asbestos regulations at demolition and renovation sites. The final
computer diskettes containing the contents of each blue book is also being transmitted to each Regional
office, and will be used to update the compilation on a quarterly basis. (For further information contact
SSCD)
Compliance Monitoring Strategy for Radionuclide NESHAPs
On July 31,1990, SSCD issued this document which designed to introduce the Regional Offices to
these new NESHAPs, and to establish the roles of Headquarters and the Regions in implementing and
monitoring compliance with these standards. The strategy also outlines the Agency's targets for
inspection. (For further information contact SSCD)
Compliance Monitoring Strategy
SSCD issued this guidance on March 31, 1988. Based on Regional and State concerns, the
Compliance Monitoring Strategy (CMS) is being revised in FY 1990-1991 for implementation in FY 1992.
The revised CMS provides at once a more flexible and systematic approach for determining State
inspection commitments. This strategy recommends the development of a comprehensive inspection plan
that identifies all sources committed to be inspected by the State agency during their fiscal year, and
the subsequent evaluation of the commitments by the Regional Office at the end of the year.
The first year of CMS implementation has demonstrated that a closer coordination and exchange
between the Region and State is possible by encouraging flexibility in determining the Inspection Plan
for the following year. This and other lessons learned from the implementation of CMS have been used
to revise and subsequently strengthen the Strategy. This coordination and open negotiation is encouraged
and strengthened under the revised CMS.
The revised CMS will require additional reporting activities and responsibilities. However it is
justified in the interest of developing the most environmentally effective inspection program in a given
State, and as a basis for more open and informal planning and negotiation between the State and EPA.
This will in turn build a stronger State-Federal partnership. (For further information contact SSCD)
Air Toxic Initiative Status Report
Administrator Reilly's meeting with the CEOs from nine companies in August 1989, marked the
beginning of the Air Toxic Initiative in which EPA worked with companies to reduce emissions from toxic
air sources. On one level EPA has worked in cooperation with CEO companies to develop individual
voluntary emission reduction plans on which they will submit annual progress reports to EPA. In October
1990, the companies submitted their first annual progress report on the voluntary reduction plans to
OAQPS.
On another level of the Air Toxic Initiative, EPA contacted companies, other than CEO
companies to update their toxic emissions information. From these additional companies, two facilities
were visited by the National Enforcement Investigation Center for a multi-media investigation.
Modeled after the National Air Toxic Initiative with CEO companies, Region II and Region VI
have begun air toxic reduction programs. The Regional program targeted facilities other than those
addressed by the National Initiative. Region VI, in cooperation with the Texas Air Control Board, and
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FY1990 Enforcement Accomplishments Report
the Texas Water Commission is working with five Texas facilities to develop voluntary toxic reduction
plans for their particular facilities. In addition, the Region is working with the Louisiana Department
of Environmental Quality to develop voluntary toxic reduction plans for two companies in Louisiana.
(For further information contact SSCD)
CFC Enforcement Initiative
On June 28 and 29, 1990, the United States filed five civil judicial enforcement actions under the
authority of the Rule to Protect the Stratospheric Ozone, 40 CF.R. Part 82 (the Rule). These actions, the
first to enforce provisions of the Rule, which went into effect on July 1,1989, all alleged importation of
chlorofluorocarbons (CFCs) by persons who did not hold the consumption allowances the Rule requires
importers to obtain prior to importing specified ozone-depleting chemicals. All five defendants were
able to obtain unexpended consumption allowances before June 30,1990, thereby averting any damage to
the stratospheric ozone layer that could have resulted from their actions, and insuring that the United
States complied with its national annual CFC consumption limit as established by an international
agreement, the Montreal Protocol on Substances that Deplete the Ozone Layer. (For further information
contact SSCD)
Guidance on Non-friable Asbestos
EPA's air enforcement and policy offices issued a guidance in February 1990 which clarified an
issue that had been dividing the regulated community and the enforcement staff across the nation. The
decision stated that asbestos fibers in four types of non-friable asbestos, floor tile, roofing felt, packings
and gaskets, are so well bound in the vinyl, bituminous or asphaltic binder, that, under normal conditions,
they need not be removed from buildings before demolition or renovation operations. This is not the case
with friable (crumbly) and other forms of non-friable asbestos that readily become friable during
demolition, like cement-asbestos. The policy further stated that occasionally these four types of
asbestos must be handled in accordance with the asbestos NESHAP regulations when the floor tile or
other material has become friable due to age or weathering, or when these materials are sanded, ground,
burned or otherwise abraded during removal. It is asserted that these removal techniques will
definitely render friable the materials and will cause dangerous levels of asbestos fibers to become
airborne. (For further information contact SSCD)
Guidance on Inclusion of CERCLA §103(a) Counts in Asbestos NESHAP Cases
On June 5,1990, the Air Enforcement Division and the Superfund Enforcement Division jointly issued
guidance on adding CERCLA counts to asbestos NESHAP cases. Regions are encouraged to scrutinize cases
alleging violations of the NESHAP disposal requirements for determination of whether CERCLA
reporting violations also exist. The guidance underscores the growing commitment to cross-media
enforcement. (For further information contact SSCD)
Stratospheric Ozone Civil Penalty Policy
On November 24,1989, the Air Enforcement Division (AED) issued Appendix VIII to the Clean
Air Act Stationary Source Civil Penalty Policy, the Stratospheric Ozone Penally Policy. AED amended
this policy on April 2, 1990, to insure the assessment of a significant penalty even against defendants
who manufacture or import small amounts in violation.
Unique aspects of the Rule to Protect the Stratospheric Ozone, 40 C.F.R. Part 82 (the Rule),
prompted AED to adopt a unique approach to assessing penalties. The Rule allocated annual production
and consumption allowances to persons who manufactured or imported chlorofluorocarbons (CFCs) in 1986
in amounts equal to the kilograms of their activities in that year. Allowance holders are free to trade
their allowances to other persons, but such transfers are valid only if authorized by EPA. The
manufacture of each kilogram of CFC requires the expenditure of one kilogram of production allowances
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FY1990 Enforcement Accomplishments Report
and one kilogram of consumption allowances that the manufacturer must possess at the time of
manufacture. The importation of each kilogram of CFC requires the expenditure of one kilogram of
consumption allowances that the importer must have in his possession at the time of importation.
Allowances left unexpended at the end of each twelve-month control period do not carry over to the next.
Each kilogram of CFC manufactured or imported in excess of allowances held is a separate violation,
exposing the violator to potential statutory maximum penalties of $25,000 for each kilogram.
AED established a flexible economic benefit rule of thumb which the Agency linked to the
actual cost of an allowance on the open market. The gravity component reflects AED's desire both to
protect the integrity of the Rule and to encourage violators to act quickly to remove the potential
environmental harm resulting from their violations. (For further information contact OE-Air or SSCD)
Documenting Penalty Calculations and Justifications in EPA Settlement Agreements
On August 9, 1990, Assistant Administrator for Enforcement James M. Strock issued a
memorandum initiating a uniform system for documenting penalty calculations and explaining how they
are consistent with the applicable penalty policy in all EPA enforcement actions. The memorandum
requires EPA attorneys to document how the proposed penalty is calculated and how it is consistent with
the applicable penalty policy in the document initiating the enforcement action, the memorandum
recommending EPA management concurrence in a proposed settlement, and any time during the course of
the enforcement action that the bottom line penalty changes due to new information or circumstances.
This required documentation must be kept in both the OE case file and the Office of Regional Counsel
case file. (For further information contact OE-Air)
Use of Stipulated Penalties in EPA Settlement Agreements
On January 24, 1990, Assistant Administrator for Enforcement James M. Strock issued a
memorandum on the use of stipulated penalties in EPA settlement agreements. The memorandum
discusses the types of consent agreement requirements which should have stipulated penalties, the
appropriate level of those stipulated penalties, and the enforcement and collection of stipulated
penalties provisions. Significant stipulated penalties helps to assure that companies meet the
important environmental obligations which they assume in settlement of EPA enforcement actions. (For
further information contact OE-Air)
Wood-Fired Boiler Initiative
During FY 1990, Region I completed a survey of wood-fired boilers used to generate electricity in
New Hampshire. In total, seven facilities were inspected. Each facility was found to be in violation of
its Temporary Permit issued by the State of New Hampshire for the purpose of limiting each facility to
minor source status. These violations led the Region to issue six Notices of Violation and a Notice of
Noncompliance. In addition, as a result of this effort, the Region initiated and settled in principle a
civil judicial referral against one of the facilities for a penalty of $99,999.
This effort raised awareness in two areas. One, both industry and the state agency will focus
more attention on emission limits contained in permits. A minor source permit will not be issued to a
facility unless it can truly comply with the permit limits. Second, each facility has increased its efforts
towards controlling air emissions. One source spent nearly $700,000 to modify its small boilers in order to
lower carbon monoxide emissions. (For further information contact Region I-Air)
Connecticut Rule Effectiveness Study
In FY 1990, Region I concluded its rule effectiveness study in the State of Connecticut on the
miscellaneous metal parts and products (MMP&P) source category. The study evaluated the present
compliance of sources subject to the MMP&P regulation, identified specific implementation problems
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FY1990 Enforcement Accomplishments Report
with the regulation, and addressed specific state agency program activities which affected how well
the MMP&P regulation was enforced.
The major features of the study included a preliminary review of 290 source files, the issuance of
235 EPA Section 114 Reporting Requirements, compliance inspections of 37 sources which revealed 22
violating sources, various EPA and state enforcement actions taken against the violators, and a post file
review.
Of the 22 sources found in violation, eight have been classified as "Significant Violators." EPA
issued NOVs to six of these "Significant Violators," while the State issued NOVs to the other two. Six
of the "Significant Violators" are now in compliance with the MMP&P regulation; the other two sources
are under review by the State for SIP Revisions. The State issued NOVs to most of the other violating
sources as well. In addition to the NOVs issued, EPA issued eight Administrative Orders to sources that
did not respond to EPA's Section 114 Reporting Requirements.
EPA conducted a post file review at the State. The post file review revealed that there was a
difference of interpretation between EPA and the State regarding applicability determinations. The
State's less stringent interpretation resulted in the State determining several sources not to be subject to
the MMP&P regulation which should have been. The post file review also indicated that the State
inspectors were not getting maximum coating usage data from many sources, but rather average coating
usage data which resulted in erroneous applicability determinations. Lastly, the post file review
revealed that the State did not inspect minor (Class B) sources frequently enough to update compliance
statuses and classification changes.
The adoption of a new MMP&P regulation by the State of Connecticut on November 1, 1989
corrected the applicability determination problems that the State was having. In addition, the State
promised to devise an inspection targeting program in FY 1991 to ensure frequent inspections of minor
(Class B) sources. These two corrective actions should improve the effectiveness of the MMP&P
regulation appreciatively. (For further information contact Region I-Air)
The Pine Ridge Indian Reservation Asbestos Cleanup Cooperative Effort
This effort involved a unique cooperative effort for remediation resulting from an innovative and
non-traditional approach to remediation problems on reservations where there are limited resources. In
a meeting at the Pine Ridge Reservation with EPA, BIA, and the tribe regarding the Red Shirt Table
asbestos site, it was decided that the tribe and BIA would put together a plan to collectively clean-up
the site. Actual BIA and tribal costs are well below standard contractor costs. BIA agreed to provide the
cleanup personnel, on-site training for these personnel, and equipment. The tribe agreed to provide
additional cleanup personnel and equipment. In addition, the tribal environmental program will
provide trained personnel to supervise the project. The Indian Health Service (IHS) will conduct
medical monitoring for the BIA and tribal cleanup personnel. (For further information contact Region
VIH-Air)
California South Coast Air Quality Management District Settlement
with Lockheed Aerospace
One of most newsworthy and significant state/local air enforcement actions was announced in
March 1990 by the South Coast Air Quality Management District. This concerned a settlement with
Lockheed Aerospace which involved a cash penalty of $1,000,000 plus a commitment from the
corporation to spend additional large sums to upgrade their air pollution control program in order to
resolve numerous VOC emissions and permitting violations and to meet District requirements. Lockheed
was one of several companies which had been included in the cooperative aerospace rule effectiveness
study conducted jointly by local air pollution control agencies, the California Air Resources Board, and by
Region IX. Most of the violations involved failures by the company to maintain required records as well
as utilize compliant coatings and solvents. The amount of the penalty, however, was not the only
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FY 1990 Enforcement Accomplishments Report
significant feature of the settlement. Lockheed also agreed to consolidate and centralize all coating and
solvent dispensing functions into state-of-the-art central dispensing stations at each of their affected
plants in the South Coast. Implementation of this agreement has resulted in a program to computerize
all recordkeeping functions, and to include bar-codes on each container of coating or solvents brought into
their facilities.
The Lockheed case provides a very visible example of progress being made in the assessment of
meaningful penalties by local agencies as a deterrent to violations as well as in the incorporation of
state-of-the-art requirements as settlement conditions. (For further information contact Region IX-Air)
Clean Air Act - Mobile Sources
Motor Vehicle Emissions Recalls
EPA's recall testing program continued effectively to enforce Federal emission requirements in FY
1990. Since the beginning of recall activity, a total of 40 million vehicles have been recalled. Thirty
million of those vehicles were recalled as a direct result of EPA investigations conducted at laboratories
in Springfield, VA, and Ann Arbor, MI. The motor vehicle emission recall program continues to play an
important role in EPA's enforcement efforts. During FY 1990, EPA investigations resulted in 12 recalls
involving four manufacturers and a total of 1.6 million recalled vehicles. In addition, 480,000 vehicles
were recalled voluntarily by manufacturers prior to EPA testing.
For the first time, EPA conducted motor vehicle enforcement testing in a high altitude area
(Denver, Colorado). This high-altitude program conducted by EPA, in coordination with the Colorado
Department of Health (CDH), was initiated to ensure vehicles in high altitude areas comply with
Federal emission standards. Under EPA's direction, CDH tested 22 engine families representing 3.6
million vehicles. The new testing program resulted in 1 of the above 12 recalls and we expect 5 more
recalls are expected as a result of this program. (For further information contact the Office of Mobile
Sources)
Mobile Source Selective Enforcement Auditing
EPA's Selective Enforcement Auditing (SEA) program consists of production-line emission testing
of new light-duty vehicles and heavy-duty engines. Less than 200 individual vehicle tests conducted
during SEA's induced manufacturers to voluntarily perform over 20,000 vehicle emission tests in order to
assure that their product conformed with standards and avoid enforcement sanctions.
EPA heavy-duty engine audits focused on engines that manufacturers claimed achieve family
emission limits (FELs) below the standard, and as a result emission credits for future use under tighter
standards were generated. Also as a result of these audits, the agency revoked a manufacturer's
certificate of conformity for an engine family because the engine configuration would not meet emission
standards. The certificate was re-issued when modifications to the engine were completed by the
manufacturer and the newly-configured engines demonstrated conformance with standards. The
manufacturer agreed to recall all previously-produced engines of the configuration that failed the audit.
(For further information contact the Office of Mobile Sources)
Mobile Source Imports Program
In FY 1990, EPA continued implementation and enforcement of the new Imports program under
title II of the Glean Air Act. This program, implemented on July 1, 1988, permits only independent
commercial importers that possess an appropriate certificate of conformity from EPA to import
nonconforming vehicles. The importers are responsible for meeting EPA emission requirements for all
nonconforming vehicles which are imported, and EPA's policy calls for will pursue civil penalties
against importers found in violation. (For further information contact the Office of Mobile Sources)
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Clean Water Act
NPDES Pretreatment Workshops
The Office of Water Enforcement and Permits (OWEP) developed and implemented two series of
workshops in FY 1990 for individuals responsible for enforcing the requirements related to the
wastewater Pretreatment Program. These workshops were designed to familiarize the pretreatment
personnel with existing statutory and regulatory requirements, as well as with current Agency policies
and guidance regarding the Pretreatment Program. They include the City Attorney's and Enforcement
Response Plan workshops. The City Attorney's workshop is designed to encourage and facilitate the
participation by the local municipal attorney in enforcing the requirements mandated by the federal
regulations and State or local laws, by outlining attorney's role in the process. In addition, attorneys are
briefed on effective enforcement strategies and given examples of actual administrative and judicial
proceedings. In FY 1990, City Attorney Workshops were conducted in Annapolis, MD, Mahwah, NJ,
Salem, MA, Madison, WI, Boulder, CO, and Park City UT, with over 200 participating city attorneys.
The Enforcement Response Plan workshop was designed to familiarize pretreatment personnel
with the requirements established in the Domestic Sewage Study regulation for developing an
enforcement response plan. During the workshop, the current regulatory requirements are explained and
the Agency's guidance is discussed in detail. In FY 1990, Enforcement Response Plan workshops were
conducted in Portland, ME, Salt Lake City, UT, San Jose, CA, Nashville, TN, Parsippany, NJ,
Philadelphia, PA, and Columbus, OH, with over 300 pretreatment officials participating. (For further
information contact OWEP)
Initiation of Municipal Water Pollution Prevention (MWPP) Program
EPA and the States are launching a new national program aimed at identifying potential
problems at POTWs and applying pollution prevention strategies. The program applies the Agency's
pollution prevention "hierarchy" to municipalities. Thus, the focus of the program is to provide an early
warning system to prompt activities to reduce flow and loadings, ensure environmentally sensitive
treatment and the beneficial reuse of sludge, and to expand facilities if necessary. The Office of Water
has involved EPA's Regional office and States in developing a fully cooperative program. (For further
information contact OWEP)
Coastal Texas Wetlands Initiative
On September 26,1990, the Department of Justice filed, on behalf of EPA Region VI, three suits
against (1) Marinus Van Leuzen and Ronald Neal Hornbeck of Galveston, Texas; (2) A. B. Charpiot and
David Charpiot of Crystal Beach, Texas, and (3) Charles Hanson, III of Port Arthur, Texas, for violating
Section 404 of the Clean Water Act (CWA). The suits, filed in the Southern and Eastern Districts of
Texas, allege that each of the individuals filled or instructed employees to fill federally protected
wetlands without receiving a permit from the Army Corps of Engineers (Corps) as required by the CWA.
In each case, the wetlands filled were coastal salt marsh wetlands which buffer coastlines during
Storms, are among the most valuable wetland systems (serving as spawning areas for variety of fish and
wildlife), and are located in an area in which the potential for filling is substantial. The filing of these
suit was announced by the Assistant Attorney General for the Environment and Natural Resources as
indicative of the major environmental priority the United States placed on the protection of wetlands in
coastal Texas and nationwide. (For further information contact OE-Water)
Publication of Final Rule for APA Administrative Penalties
On June 12,1990, EPA published in the Federal Register the final rule for assessing Class II
administrative penalties under the Clean Water Act. The final rule was developed in response to the
new administrative enforcement authorities under the 1987 Clean Water Act amendments. The CWA
amendments provided for Class I administrative penalties not to exceed $25,000 and Class II penalties
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FY1990 Enforcement Accomplishments Report
not to exceed $125,000. The Agency must follow the Administrative Procedures Act (APA) when assessing
Class II civil penalties. Promulgation of the final rule provides procedures to ensure effective use of
Regional resources for administrative hearings on proposed Class 'II administrative penalties. (For
further information contact OE-Water)
Chesapeake Bay Compliance and Enforcement Initiative
In December 1989 EPA Administrator Reilly assumed the Chair of the Chesapeake Executive
Council, a creation of the Chesapeake Bay agreement of 1987. Administrator Reilly announced two goals
on this occasion: 1) to reduce by half the number of Clean Water Act significant non-compliers that
discharge to the Bay watershed by the end of 1990 and 2) to completely eliminate non-compliance by
federal facilities that discharge in the Bay watershed.
To attain these goals, EPA launched the "Chesapeake Bay Compliance and Enforcement
Initiative". A major component of the Initiative has been increased enforcement against dischargers in
the Bay watershed. Through September 1990, the Bay States of Maryland, Pennsylvania, and Virginia
and EPA Region III had taken fifty enforcement actions as part of the Initiative. Two of those actions
were U.S. v. Bethlehem Steel Corporation. Sparrows Point, Maryland, and U.S. v. District of Columbia.
In the suit against Bethlehem Steel the United States alleges that Bethlehem discharged reportable
quantities of hazardous substances (sulfuric acid and ferric chloride) to the Patapsco River on three
occasions. In its enforcement action against D.C., the United States has alleged that the District
violated its NPDES permit on numerous occasions. These alleged violations include several instances of
discharges of untreated sewage to the Potomac River.
At the end of FY 1990, NPDES significant noncompliance was reduced from 8.3% at the start of
the initiative to 4.6%, and the number of federal facilities in noncompliance with at least one
environmental program was reduced from 37 to 13. (For further information contact Region Ill-Water)
Development of Oil Pollution Act Enforcement Provisions
The Water Division of the Office of Enforcement was closely involved with advising
congressional staff and other Agency offices oh the enforcement provisions of the Oil Pollution Act of
1990, which was signed into law on August 18,1990. The new bill revamps Section 311 of the Clean Water
Act — the oil spill provision — by dramatically increasing penalties, giving EPA new authority to assess
civil penalties administratively, and broadening the Agency's authority to issue and enforce clean-up
orders. Elsewhere the law establishes the government's right to seek damages for harm occurring to
natural resources, and significantly improves the United States' financial ability to clean up a spill
itself. The Office of Enforcement is heading an Agency workgroup that is developing enforcement
policies and procedures to implement the new law during FY 1991. (For further information contact OE-
Water)
Outreach on Clean Water Act Citizens Suits
The Office of Enforcement, together with the Department of Justice, began meeting with outside
attorneys involved in citizen enforcement suits under Section 505 of the Clean Water Act in an effort to
better communicate regarding our respective efforts against non-compliers. The CWA provides both EPA
and DOJ with a role in reviewing proposed citizen settlements, and the agencies have actively
participated in a number of citizen enforcement cases before the courts.
As a result of this interaction, a number of significant legal and policy issues have arisen between
the government and citizen litigants. As a means of improving communication and cooperation between
the agencies and the citizens suit bar, the Assistant Administrator for Enforcement and the Assistant
Attorney General for Environment and Natural Resources met with representatives of leading citizen
plaintiff groups, such as the New Jersey Public Interest Research Group and the Natural Resources
Defense Council, as well as defense counsel.
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EPA and the Department will continue to meet with the citizen suit bar in FY 1991 to advance the
goals of the Clean Water Act and other environmental laws, such as the Community-Right-To-Know Act
(EPCRA), which have important citizen suit provisions. (For further information contact OE-Water)
Administrative Order Tracking Guidance for UIC and PWSS Program
On August 23,1990, the Office of Drinking Water (ODW) and the Office of Enforcement (OE)
issued guidance entitled "Tracking Compliance with Administrative Orders in the PWSS and UIC
Programs." The Regional Drinking Water/Groundwater Protection Branches are responsible for tracking
compliance with all Federal administrative orders. The guidance is designed to supplement existing
PWSS and UIC guidance on administrative order tracking and follow up activities. Tracking active
orders, Regional response to violations of administrative orders, and closing out administrative orders
are the three issues addressed by the guidance. (For further information contact OE-Water)
Ocean Pollution Enforcement Conference
The Office of Enforcement and the National Association of Attorneys General (NAAG) co-
sponsored a National Coastal Pollution Enforcement Conference on October 16-18 in Newport, Rhode
Island. The conference brought together representatives from state environmental regulatory agencies,
twenty-nine attorneys general offices, EPA, the Department of Justice, the Coast Guard, the Federal
Bureau of Investigation, and the National Oceanographic and Atmospheric Administration.
As a result of the conference, three specific needs were identified and commitments made to
address those needs: 1) the publication and distribution of a directory of federal, state, and local coastal
enforcement officials, 2) the sharing of information (including decisions, briefs, complaints, etc.), and 3)
the development of generic manuals to assist attorneys general and their key staff and federal
prosecutors in preparing for and in responding to oil spill incidents in a coastal environment. Each of
these projects were completed during the fiscal year. (For further information contact OE-Water)
Boston Harbor Cleanup
EPA's six-year enforcement case effort to clean up Boston Harbor continued during FY 1990 with a
focus on the two major portions of the cleanup which remain to be fully addressed, long-term sludge
management and combined sewer overflows (CSOs). After a four- year process of facilities planning and
environmental review, in November, 1989, the Massachusetts Water Resources Authority (Authority)
sited the various sludge management facilities needed for the harbor cleanup. These facilities are
needed to ensure that the current environmentally damaging practice of dumping sludge into Boston
Harbor is ended. However, in the face of local opposition to the proposed residuals landfill, political
obstacles have been placed in the Authority's path in its attempts to acquire the landfill site. EPA has
sought the assistance of the federal court to help ensure that the Authority is able to acquire all sites
needed for its cleanup programs.
With respect to the CSOs, the Authority's final facilities plan was issued in September, 1990. It
adopts the approach of eliminating most CSO overflows by constructing extensive deep tunnel and near
surface storage systems. This plan will be a significant step in addressing the raw sewage discharges
now occurring whenever it rains in and around Boston Harbor. (For further information contact Region I-
Water)
South Essex Sewerage District
Local political efforts and leadership this past year avoided the need for a trial in EPA's Clean
Water Act enforcement case against the South Essex Sewerage District in Salem, Massachusetts. A state
law limiting fees and taxes was preventing the District from constructing a federally required secondary
treatment plant. Rather than try the issue whether the federal court could order treatment plant
construction notwithstanding the state law restrictions, local officials agreed to seek legislative
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overrides of the limitations. They were successful in doing so, and construction of the secondary
treatment plant now can move forward. The plant will help to address the longstanding serious
pollution problems in Salem Harbor. (For further information contact Region I-Water)
Casco Bay, Maine
EPA and the State of Maine began joint enforcement efforts to restore Casco Bay. The State and
Region I coordinated their resources and efforts to bring both state and federal action against
communities discharging pollutants from combined sewer overflows (CSOs) into Casco Bay. The State
took the lead against the City of Portland, while EPA filed a civil action against the City of South
Portland for discharging untreated contaminants from its CSO discharges. Increased significance was
added to these enforcement actions as the President this past spring designated Casco Bay to the
National Estuary Program because of the importance of this ecological resource. The South Portland case
was the first case ever brought by EPA against a community where the relief sought is primarily the
correction of combined sewer overflows. Portland and South Portland will be required to coordinate their
planning efforts to insure a geographic solution is recommended and implemented. The long term benefits
of these actions will be the restoration and preservation of Casco Bay. (For further information contact
Region I-Water)
Region II Enforcement Leveraging Initiative
Region II has initiated a pilot program to provide unidentified Categorical Users (CIUs) of
Publicly Owned Treatment Works (POTWs) having flows of less than 5 MGD, with a window of
opportunity to voluntarily report their noncompliance. The window closed on June 20,1990, after having
been open for 60 days. During the 60 day pilot period, many POTWs and industries contacted the Region
II office to determine whether they were subject to the leveraging mechanism. Of those, 20 previously
unregulated industrial facilities identified themselves as being (or potentially being) subject to
categorical standards. File reviews and inspections of these 20 facilities are now in process.
In return for their cooperation during the 60 day grace period, these newly identified CIUs will
be assessed only economic benefit penalties and a standard $2000 gravity penalty. In addition to paying
such penalties, they will also commit to Consent Decrees specifying schedules and reporting
requirements for reaching compliance with Categorical Standards. In addition, based on responses to the
letter informing POTWs of the pilot period, the Region is also issuing §308 letters to two POTWs
suspected of concealing the true status of the industries in their respective jurisdictions. (For further
information contact Region II-Water)
Region IX Innovative Pretreatment Performance Evaluation (PPEI)
The Region has developed an innovative and expanded Pretreatment Compliance Inspection
(PCI) evaluation which the Region Calls Pretreatment Performance Evaluation Inspection (PPEI) which
may be more effective in determining the compliance status of industrial users and POTWs, facilitating
enforcement action. The Region has already used the PPEI in the City of Los Angels, Burbank, Orange
County, San Diego, Phoenix, Livermore, Milbrae, Central Marin, Burlingame, Palo Alto, Sunnyvale,
Watonssville, Monterey, Serra, Encina, Aliso, and Yuma. This is a creative concept which may continue
to generate additional enforcement action from PPEIs conducted in FY 1990. (For further information
contact Region IX-Water)
Wetlands Enforcement
Region III Wetlands Program Interagency Agreements
To address concerns about the large number of wetlands violators in Region III, the Region
entered into Interagency Agreements (lAGs) with the Fish and Wildlife Service (FWS) field offices in
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State College, PA, Annapolis, MD and White Marsh, VA. EPA funds each FWS field office with a
$50,000 allotment to provide an increased level of technical staffing and case development support.
The staff assistance provided through the FWS lAGs has further enabled Region III to enter into
Held Level Memoranda of Agreement (FLMOAs) with the Philadelphia and Baltimore Districts of the
Army Corps of Engineers (COE). Under the FLMOAs, which are burden sharing agreements, EPA and the
COE agree that one of the two agencies will serve as the lead enforcement agency in certain specified
counties within their jointly administered jurisdictional areas. The procedural framework established
by the FLMOAs strengthens existing wetland enforcement capabilities by reducing each agency's
geographic coverage area and eliminating duplication of effort. (For further information contact Region
Ill-Water)
Region X Wetlands Cooperative Enforcement Procedures with the Corps of Engineers
In FY 1990, the Region X Wetlands Protection Program developed cooperative enforcement
procedures with all Corps of Engineer District Offices. These procedures center on quarterly enforcement
meetings with each District to review progress toward resolution of cases and to select the lead agency
for newly discovered cases. The Region has clearly communicated the types of cases for which EPA
would like to assume the lead, pursuant to the EPA/Army MOA on §404 Enforcement. The Districts have
been referring cases and sharing information on those cases. (For further information contact Region X-
Water)
Resource Conservation and Recovery Act
State Hazardous Waste Enforcement and Compliance Monitoring Requirements
OWPE is revising the enforcement and compliance monitoring requirements States must meet in
order to maintain or become authorized under RCRA. At the end of FY 1989 EPA met with state
representatives to obtain their input into the development of this rule. During FY 1990, OWPE
considered state comments received during those meetings and internal comments received during Red
Border review and completed the preamble and proposed regulatory language. OWPE expects publish
the proposed rule in the near future. (For further information contact the Office of Waste Programs
Enforcement - RCRA Enforcement Division (OWPE-RED))
RCRA 3008(h) Case Development Workshop
In February 1990, OWPE completed presentation of the RCRA 3008(h) Case Development
Workshop (Administrative Records Course) in all Regions. The workshop focused on the development of
the administrative record for consent and unilateral 3008(h) orders. This workshop will be presented
again upon request (For further information contact OWPE-RED)
Land Disposal Restrictions Third-Third Training
In the summer of 1990, OWPE sponsored enforcement training in the LDR Third-third
requirements to all Regions. This training initiative was a joint effort with the office of solid waste.
(For further information contact OWPE-RED)
Land Disposal Restrictions DOE Satellite Training
In July 1990, OWPE co-sponsored a Satellite Teleconference with DOE on the LDR requirements
and implementation. Over 1000 people attended the teleconference. (For further information contact
OWPE-RED)
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FY1990 Enforcement Accomplishments Report
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of the enforceability and implementability of new regulations during the development process. (For
further information contact OWPE-RED)
Revised Civil Penalty Policy
One of the primary recommendations in the RIS is to seek higher penalties in enforcement
actions. During FY 1990, OWPE in conjunction with OE drafted a revised civil penalty policy. In October
1990, OSWER/OE issued the revised civil penalty policy which establishes a multi-day penalty
requirement.
OWPE, in conjunction with OE, is developing a training course for the Regions on the revised
RCRA Civil Penalty Policy. The training courses will begin being offered to the Regions by the end of
January 1991. (For further information contact OWPE-RED or OE-RCRA)
RIP-Flex Initiatives
The RIP-Flex process was initiated in FY 1989. It is designed to allow trade-offs from the
national RCRA priorities in order to address Region and State-specific environmental priorities. During
FY 1990, Regions I, III, VI, IX and X participated in the RIP-Flex process. The types of Regional/State
investments and initiatives included a broad range of activities. Some of the major initiatives included
increased corrective action; enforcement at generators and non-notifiers; land ban enforcement; hazardous
waste exports; pollution prevention and inspections at closed or non-regulated facilities. The areas of
disinvestments primarily focused on deletion of inspections at environmentally non-significant TSDFs.
In general the RIP-Flex process has been successfully implemented by the Regions. Benefits have been
gained in the areas of compliance monitoring, enforcement and corrective. (For further information
contact OWPE-RED)
West Virginia Field Citations - RCRA
The Field Citation Program implemented by the West Virginia Department of Natural Resources
in cooperation with EPA Region III resulted in the collection of $58,872 from 28 companies in FY 1990.
The Field Citation Program stems from a 1989 Region HI Merit project which received seed money from
EPA Headquarters. The program is designed as follows: a RCRA inspector identifies a violation and
prepares a Notice of Violation which is forwarded to the State Assessment Officer who reviews it and
sends a penalty assessment based on a published penalty matrix to the alleged violator. The alleged
violator has 30 days to pay the fine or request an informal hearing. (For further information contact
Region m-RCRA)
Region III UST Leak Detection Enforcement Compliance Initiative
The Office of Underground Storage Tanks began a national initiative to build State enforcement
capabilities to provide state and EPA programs with increased enforcement activities and visibility
among the regulated community. Region III provided the District of Columbia UST program leak
detection enforcement compliance initiative. The District has completed enforcement of EPA's leak
detection requirements for the oldest tanks in D.C.'s regulated community. This initiative improved
D.C's UST enforcement process and provided EPA with enforcement referrals which were developed
into the first in the nation Federal lead actions under RCRA Section 9006. This initiative will be
expanded to all Region III states for phase-in of leak detection requirements over the next four years.
(For further information contact Region m)
Region III UST Corrective Action Pilot Project
In FY 1990, Region III initiated a project to improve the state LUST corrective action process.
Under this pilot project, the Region worked with Maryland and Delaware to understand their
procedures for evaluating and approving corrective action proposals and overseeing their
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FY1990 Enforcement Accomplishments Report
implementation. Based on the information collected, a number of process improvements were proposed
and implemented in each state. Examples of these projects include: file review to streamline the filing
process and accurately assess the status of sites in the enforcement and corrective action process, and
development of a Consultant's Day to provide all the state requirements for corrective action to
consultants working in their states. Because of the success of this pilot project, the Agency has decided to
implement corrective action improvement projects in at least one state in each Region and to encourage as
many states as possible to hold Consultant's Day during FY 1991. (For further information contact
Region HI)
Superfund
FY 1990 was a year of significant progress in the Superfund enforcement program. The Agency
built on the successes of previous years and the significant accomplishments of FY 1990 strengthened the
infrastructure of EPA's CERCLA enforcement program. EPA directed a strong enforcement effort by
maximizing private party response actions, targeting efforts through enforcement initiatives, clearly
articulating program goals, and developing enforcement policy.
Much of EPA's direction in Superfund enforcement came from EPA Administrator William K.
Reilly's review of the Superfund program. . The review, commonly referred to as the "90-Day Study"
emphasized an "enforcement first" strategy and makes 10 recommendations for Superfund enforcement.
The Superfund enforcement program has followed through on all recommendations and EPA's effort in
this program has produced a large number of quality documents designed to establish and implement
Agency policy for Superfund enforcement. These documents focus on streamlining the enforcement process
and promoting national consistency. The substantial output has resulted in a more effective, fair, and
efficient Superfund enforcement program.
Section 106 of CERCLA: SLategy, Model Orders, and Guidance
The 90-Day Study recommends that EPA increase its use of unilateral orders under §106 of
CERCLA. EPA has worked hard to implement this recommendation. On February 14,1990, EPA issued a
strategy for promoting the use of unilateral orders under §106 of CERCLA. The strategy encourages EPA's
Regional offices to use unilateral orders in the absence of a timely settlement. The strategy also
established the Agency's numerical and program goals for unilateral orders. The strategy promoted a
uniform and consistent use of unilateral orders and implemented the Administrators recommendation
that EPA encourage the timely, routine, and predictable use of unilateral orders. (For more information
contact OWPE CERCLA Enforcement Division (CED).)
V
On March 30,1990, EPA issued a model unilateral order for remedial design and remedial action
(RD/RA). The model assists EPA's Regional offices when they seek to compel private party response.
Unilateral administrative orders are a powerful enforcement tool available to EPA. When settlement
negotiations break down, a unilateral order to compel the response action can expedite private party
cleanup. The model order of March 30,1990 gives EPA's Regional office a standard order that encourages
swift response actions for RD/RA and promotes a uniform approach among the Regional offices. (For
more information contact OE Superfund or OWPE - CED)
On March 3,1990, EPA issued a guidance on the use of unilateral orders under §106 of CERCLA.
The guidance established EPA's policy on unilateral orders for RD/RA and encourages EPA's Regional
offices to issue UAOs in cases where EPA is unable to reach a timely settlement with PRPs. The guidance
answers many technical questions about compelling PRPs to perform RD/DA and promotes a nationally
consistent approach for securing private party cleanups. (For more information contact OE Superfund or
OWPE-CED.)
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Remedial Investigations and Feasibility Studies: Model Orders, Oversight Guidance,
and Program Evaluations
The 90-Day Study encourages the enforcement program to strengthen its efforts to effectively
oversee PRP-lead RI/FS. EPA has fully implemented this recommendation. In FY 1989 EPA issued the
Model Statement of Work for a Remedial Investigation and Feasibility Study and then followed
through on this document with the Model Administrative Order on Consent for Remedial Investigation
and Feasibility Study, issued on January 30, 1990. The model order assists the Regional offices in
reaching settlements with PRPs for this phase of the remedial process and promotes national consistency
in EPA's efforts to secure high quality, timely records of decision.
EPA also compared PRP-lead and Fund-lead remedial investigations and feasibility studies.
EPA presented the findings of the comparative analysis to Congress in June of 1990. EPA is in the process
of implementing several steps that will strengthen the RI/FS program. (For more information contact OE
Superfund or OWPE - CED.)
Searches for Potentially Responsible Parties, and Information Requests
The 90-Day Study emphasizes effective information collection and information exchange to
promote PRP participation in the CERCLA settlement process. EPA followed through on this
recommendation by training Regional personnel, contractor support staff and state enforcement personnel
in PRP search procedures.
To encourage PRPs to respond to EPA's information requests under §104(e) of CERCLA in a timely
and thorough manner, EPA issued the model consent decree for information requests under §104(e) and also
issued guidance on March 1,1990 on releasing information to PRPs. The model consent decree supports
EPA's §104(e) enforcement initiative and assists EPA's Regional offices in enforcing requests for
information under §104(e). The guidance encourages the Regional offices to share information with
PRPs, where the exchange of information would promote settlement. (For more information contact OE
Superfund or OWPE - CED.)
Specialized Categories of Potentially Responsible Parties
On December 12,1989, EPA published the 'Interim Municipal Settlement Policy." The policy
establishes EPA's enforcement approach in cases where a city may have obligations under CERCLA.
During the process of developing the policy, EPA held three large public meetings and solicited the
views of all interested groups. The policy recognizes the unique circumstances that cities often, face
while at the same time reinforcing the obligations of cities under Superfund. The policy exemplifies the
substantial benefits of full coordination and cooperation of all interested parties in the development of
Agency policy.
On December 20, 1989, EPA issued "Methodologies for Implementation of CERCLA Section
122(g)(l)(A) De-Minimis Waste Contributor Settlements/' This guidance explains how to develop and
evaluate deminimis settlement proposals and agreements. The guidance will assist the Agency as well
as private parties in developing settlements for persons who have made only a minimal contribution (by
amount and toxicity) of hazardous substances at a site. (For more information contact OE Superfund or
OWPE-CED.)
Program Integration
A major theme of the 90-Day Study is an aggressive, well planned and tightly coordinated
system for moving sites to completed remediation. The integrated timeline, issued on June 11, 1990,
identifies the key decision points in the cleanup process and EPA's goal for the amount of time required
for each phase of a cleanup. The integrated timeline identifies potential points in the cleanup process
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that are vulnerable to delays and encourages an aggressive use of .deadline management for speeding the
cleanup process.
On October 12, 1990, EPA issued the "Pre-Referral Negotiation Procedures for Superfund
Enforcement Cases." This guidance promotes a nationally consistent process for pre-referral settlement
negotiations under CERCLA. The purpose of the document is to quicken the pace of achieving settlements
and to establish a consistent settlement decision-making process. (For more information contact OE
Superfund.)
EPCRA/CERCLA §103 Enforcement Accomplishments
OSWER has responsibility for enforcing the Emergency Planning and Community Right-to-know
§Act (EPCRA), and section 103 of CERCLA. In FY1990, the CERCLA/EPCRA enforcement program made
many significant new strides. In early FY 1990, EPA held the first nationwide EPCRA enforcement
planning meeting in Denver. This meeting brought together staff from both the program offices' and their
attorney counterparts to discuss the direction of the enforcement program.
During FY 1990, the Regions issued 31 administrative complaints with proposed penalties in
excess of $2.7 million. The number of complaints issued in FY 1990 represents a 180% increase over the
output of the previous year. FY 1990 also saw the EPCRA/CERCLA 103 program conduct a nationwide
enforcement initiative in which every Region participated. Four Regions issued their first
administrative complaints during this initiative. During the June 25-28th initiative/EPA issued
administrative complaints against 23 companies for penalties totaling $1,974,880.
EPA finalized seven settlements under this program, including the first $100,000+ settlement and
another for $90,000. A number of other FY 1990 cases are settled in principle, but consent agreements and
final orders have not yet been issued. Of the $351,550 collected during FY1990, $137,000 was deposited
into the Superfund and $214,550 into the U.S. Treasury.
The EPCRA/CERCLA §103 enforcement program received a number of favorable decisions from
Administrative Law Judges (ALJ). In All Regions Labs, Inc. the ALJ levied a penalty of $89,840 for AH
Regions' failure to provide emergency notification as required under CERCLA §103 and EPCRA 304. The
company appealed to the U.S. District Court. This will be the program's first judicial action.
In FY 1990 EPA developed a number of enforcement support documents including model
enforcement pleadings, a penalty policy, inspection targeting data, and an enforcement reference manual.
(For further information contact OWPE - CED.)
Model Enforcement Pleadings
The Agency developed this set of documents to aid the Regional enforcement efforts by supplying
a model administrative complaint for violations of CERCLA §103 and EPCRA §§302-312. Other models
included in the package were a model consent agreement and final order, a model subpoena, and a model
transmittal letter. (For further information contact OE Superfund or OWPE - CED.)
Final Penalty Policy for §302,303,304,311, and 312 of the EPCRA and
§103 of the CERCLA
The policy governs penalty calculations in administrative enforcement actions for violations of
EPCRA §§302-312 and CERCLA §103. (For further information contact OE Superfund or OWPE - CED.)
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Enforcement Reference Manual for EPCRA §302-313 and CERCLA §103
This document provides a consolidated source of information and previously issued guidance
materials to assist Agency enforcement personnel in their efforts to enforce the provisions of EPCRA and
CERCLA 103. (For more information contact OE Superfund or OWPE - CED.)
Interim Municipal Settlement Policy
On December 6,1989, the Office of Solid Waste and Emergency Response issued this settlement
policy for municipalities or municipal wastes under §122 of CERCLA. The purpose of the policy is to
provide a consistent Agency-wide approach for addressing municipalities and municipal wastes in the
Superfund process. It also addresses how private parties and certain kinds of commercial, institutional,
or industrial wastes will be handled in the settlement process as well. (For more information contact OE
Superfund or OWPE - CED.)
Methodologies for Implementation of CERCLA §122(g)(l)(A)
De-Minimis Waste Contributor Settlements
This directive was finalized on December 20,1989 and is designed to provide practical assistance
m the evaluation and development of de minimis contributor settlements. The purpose of the directive is
to increase the use and effectiveness of such settlements. The document reviews the definition of a de
minimis waste contributor, eligibility and characteristics, the objectives of a settlement, and evaluation
of the proposals. (For further information contact OE Superfund or OWPE - CED)
Model Administrative Order on Consent
for Remedial Investigation/Feasibility Study
In January 1990, EPA developed this model order to improve the quality of the RI/FS conducted
by potentially responsible parties by laying out in detail what is expected during the RI/FS process. The
model is intended to promote consistency among EPA Regions and cut down on the time involved in
preparing for settlement negotiations. (For further information contact OE Superfund or OWPE - CED.)
Multi-Media Settlements of Enforcement Claims
On February 6, 1990, EPA distributed this guidance that supports EPA's policy disfavoring
judicial and administrative settlements of enforcement cases involving multi-media releases. The
guidance details the "diligent inquiry" which must be performed at the Regional level prior to a referral
of the proposed settlement to Headquarters. (For further information contact OE Superfund or OWPE -
CED.)
Releasing Information to PRPs at CERCLA Sites
On March 13,1990, EPA provided guidance on the release of information to PRPs at CERCLA
sites. The goal of the directive was to facilitate settlements between EPA and PRPs. For PRPs to coalesce
into a negotiating group and to participate in settlement negotiations, they must have information about
the site and other PRPs. This can help the agency achieve goals of expediting cleanups, encourage PRPs
to undertake or finance cleanups, and avoid unnecessary litigation. (For further information contact OE
Superfund or OWPE- CED.)
Guidance on CERCLA §106(a) Unilateral Administrative Orders
for Remedial Design/Remedial Actions
On March 7, 1990 EPA set out in a memorandum general principles governing the Agency's
unilateral administrative order authority for remedial designs and remedial actions under Section 106 of
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CERCLA. The guidance is a comprehensive document detailing among other things, the legal aspects of
an order, the potential recipients of an order, and the procedures for issuing an order. (For further
information contact OE Superfund or OWPE - CED.)
Integrated Timeline for Superfund Site Management
On June 11,1990, EPA developed a strategy to conduct an aggressive, well planned, and tightly
coordinated system for moving Superfund sites to completed remediation. The timeline identifies the
critical decision points and sets goals for the amount of time it should take to get from one step to the
next. This integrated site management framework should enhance EPA's ability to cleanup Superfund
sites. (For further information contact OE Superfund or OWPE - CED.)
Pre-Referral Negotiation Procedures for Superfund Enforcement Cases
On October 12,1990, EPA set forth procedures governing the pre-feferral settlement negotiation
process for CERCLA. The objectives of the developed procedures are to quicken the pace of achieving
settlements, improve the quality of settlements, and establish a regular settlement decision making
process nationwide. (For further information contact OE Superfund or OWPE - CED.)
Model Consent Decree for CERCLA §104(e)
Information Request Enforcement Actions
To further support EPA's §104 enforcement initiative the Agency developed this model consent
decree on August 29, 1990. The model should strengthen the Agency priority of obtaining information
from responsible parties and help to streamline the enforcement process. (For further information contact
OE Superfund or OWPE-CED.)
Superfund Federal Facilities Agreements
In FY 1990 the Superfund Federal Facilities program completed negotiations and signed
Interagency Agreements (lAGs) with the remainder of their federal facilities. Five lAGs were signed by
year's end. The facilities were Aberdeen Proving Ground, Tobyhanna Army Depot, Defense General
Supply Center, and Naval Air Development Center. Region HI is now the first Region in the nation to
have signed lAGs with all their federal facilities on the NPL. This represents a significant first step in
the NPL clean- up process. These facilities now have the formal mechanism in place to move through
the federal clean-up process. (For further information contact Region III-CERCLA)
Toxic Substances Control Act
Revised Enforcement Response Policy for the TSCA §6
Polychlorinated-Biphenyls (PCBs) Rule
In 198U, EPA issued interim guidance for determining penalties for violating the PCB rules. In the
10 years that the Agency operated under that guidance, numerous rules were issued, and amendments,
interpretations, and revisions to the original guidance were developed. Enforcement policies were
updated. On April 9, the Agency issued a new penalty policy which substantially revised the old one.
The new policy (1) raises the circumstance levels for certain types of violations based on environmental
risk, (2) reduces the threshold levels of PCBs in the extent matrix for disposal violations, (3) assesses
penalties for each violation of the 40 CFR part 761 instead of for the broader violation of its subparts,
and (4) defines "separate location" for purposes of determining separate violations. The new policy
generally increases penalties to deter violations, but also includes a reduction for voluntary disclosure.
(For further information contact the Office of Pesticides and Toxic Substances Office of Compliance
Monitoring (OCM))
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Compliance Monitoring Strategy for the TSCA §6 Hexavalent Chromium Rule
EPA issued a compliance monitoring strategy to ensure compliance with the TSCA S.6 rule
prohibiting the distribution and use of hexavalent chromium in comfort cooling towers. The rule also
specifies labeling and recordkeeping requirements for Cr+6-based water treatment chemicals. The
compliance monitoring strategy focuses EPA's enforcement efforts on identifying: 1) distribution
violations; 2) labeling violations; 3) reporting failures; 4) recordkeeping violations 5) use violations and
6) export notification violations. Additionally, the strategy instructs Regional Offices how to identify
potential non-reporters and distributors. (For further information contact OCM)
Enforcement Response Policy for Asbestos Abatement Projects
Worker Protection Rule
EPA issued an enforcement response policy to establish the enforcement procedures and civil
penalty schedules that EPA will use in response to violations of the Asbestos Abatement Projects Worker
Protection Rule by public employees subject to it. The policy addresses violations of the monitoring,
regulated areas, work practices, personal protection, communication of hazards, and notification
provisions of the Rule. In keeping with the Agency's increasing emphasis on risk-based approaches to
enforcement, the policy is structured to encourage early disclosure. (For further information contact
OCM)
TSCA §8(e) Initiative
In December, 1989, EPA launched the TSCA §8(e) Outreach and Enforcement Initiative consisting
of letters to individual companies emphasizing the importance EPA places on TSCA §8(e) substantial
risk information and urging the companies to review compliance with section 8(e)'s reporting provisions.
The Initiatives also involves field inspections and TSCA §11 subpoenas issued to targeted companies to
investigate section 8(e) compliance, the issuance of Notices of Noncompliance to companies for certain
first-time section 8(e) violations, and the filing of civil administrative complaints for late reporting and
failure of civil administrative complaints for late reporting and failure to report substantial risk
information under TSCA §8(e). Many of the activities and investigations involved in the Initiative are
Still ongoing and will continue throughout the next Fiscal Year. (For further information contact OCM)
Region VIII State Coordination on the Toxics Release Inventory
On September 27,1990, EPA awarded Colorado a grant for $96,620 for FY 1991 to improve the
quality of the Toxic Release Inventory database for Colorado. The State Health Department will
develop a multimedia workgroup to review TRI submissions by county. They will involve RCRA,
NPDES, UST and Emergency Planning permit writers and inspectors. The goal will be to identify
companies which failed to report under TRI, as well as additional chemicals omitted by companies
which did report. This information will be shared with EPA Region VIII and will be used to select
inspection targets from among these potential non-reporters. EPA and the State will determine what
followup actions are appropriate for the remaining potential non-reporters. (For further information
contact Region Vm Air and Toxics Division)
Federal Insecticide, Fungicide, and Rodenticide Act
Compliance Monitoring Strategies
EPA issued compliance monitoring strategies to ensure compliance with pesticide cancellations
and conditional registrations that became effective in FY 1990. These included strategies for the
cancellation of non-wood uses of inorganic arsenicals, aldicarb, mercury, and EBDC. In addition, EPA
also issued a compliance monitoring strategy to ensure compliance with pesticide cancellations due to the
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non-payment of fees. (For further information, contact OCM.)
FIFRA Enforcement Response Policy
On July 24,1990, EPA published a notice of availability in the Federal Register (55 FR 30032) for
the revised Enforcement Response Policy for the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA ERP), which was issued on July 2, 1990. The FIFRA ERP supersedes the previous FIFRA Civil
Penalty Assessment Guidelines published in the Federal Register on July 31,1974 (39 FR 27711); the 1983
Level of Action Policy published as section 2 of Chapter 5 of the FIFRA Compliance/Enforcement
Guidance Manual; the June 8, 1981 Guidance for the Enforcement of the Child-Resistant Packaging
Regulation; the June 11, 1981 FIFRA Enforcement Policy - Interim Penalty Guidelines; and the civil
assessment matrix of the February 10, 1986 FIERA Section 7(c) Enforcement Response Policy (the rest of
this policy remains in effect). The FIFRA ERP sets forth the procedures and criteria that will be used to
determine the appropriate enforcement response for violations of FIFRA. It is designed to provide fair
and equitable treatment of the regulated community by ensuring that similar enforcement responses and
comparable penalty assessments will be made for comparable violations, and to provide for swift
resolution of environmental problems by deterring future violations of FIFRA by the respondent, as well
as other members of the regulated community. (For further information, contact OCM.)
FIFRA Compliance Program Policy Compendium
EPA issued two compliance program policies during FY 1990. FIFRA Compliance Program Policy
No. 12.6, entitled "Enclosed Cab Use for Pesticide Application", was issued on October 8, 1990, and the
expiration date for the FIFRA Compliance Program Policy No. 12.7, entitled "Interim Enforcement of the
Label Improvement Program for Pesticides Applied Through Irrigation Systems (Chemigation)", was
extended on 06/20/90. (For further information, contact OCM.)
Laboratory Data Integrity Program
During FY 1990, the Laboratory Data Integrity Assurance Division conducted 79 laboratory
inspections and 338 studies were audited for compliance with the EPA's Good Laboratory Practice
regulations under the Federal Insecticide, Fungicide and Rodenticide Act and Toxic Substances Control
Act. (For further information contact OCM)
FIFRA Export Enforcement Initiative
During FY 1990 EPA initiated a compliance monitoring program for the enforcement of the export
provisions of FIFRA and EPA's Export Policy. Twenty-six establishments were targeted for inspection to
determine their compliance with FIFRA and the Export Policy. The inspections revealed substantial
noncompliance with FIFRA and the Export Policy. As a result, EPA issued civil administrative
complaints against nine companies. The companies were charged with violating the provisions of
FIFRA, including the exportation of unregistered pesticides without first obtaining a statement from the
foreign purchaser acknowledging that the pesticide was not registered for use in the United States, lack
of the required bilingual labeling when exporting products to a country whose principal language does not
include English, and lack of the statement "Not Registered for Use in the United States of America" on
the labels. (For further information contact OCM)
Pollution Prevention Settlement Initiative
In recent years, the Agency has made a concerted effort to incorporate pollution prevention activities
into enforcement-related activities. After a civil administrative action (complaint) has been issued
against a company, a company may be able to mitigate the proposed penalty through the
implementation of pollution prevention projects, or "environmentally beneficial expenditures". For
example, a pollution prevention project could take one or more of the following forms: (1) an internal
environmental audit of the company's compliance status with TSCA, which includes finding and
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promptly correcting violations; (2) expenditures to reduce the emission of an EPCRA section 313 chemical
and (3) TSCA training courses for company employees and/or TSCA compliance seminars for customers.
Both Headquarters and the Regions believe that pollution prevention projects are an important
approach in settlement of cases. Companies are encouraged to explore and maximize innovative
pollution prevention projects with EPA and to identify and profit from opportunities for prevention. (For
further information contact OCM)
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YL Media Specific Enforcement Performance and
Regional Accomplishments
A. The Strategic Targeted Activities for Results System (STARS)
EPA uses the Strategic Targeted Activities for Results System (STARS), 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 categories of violations determined to be
the most environmentally significant (i.e.. SNC), and at the beginning of each fiscal year, EPA and the
States establish joint commitments to address the SNC's during the year. The following program
summaries indicate EPA and state progress in resolving SNC over the past several years.
Clean Air Act - 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 requirements. Beginning in FY 1990, the air enforcement program
implemented a new method of tracking SNC's which puts greater focus on Timely and Appropriate
enforcement response and on resolving SNC's discovered throughout the year.
At the start of FY1990, EPA and the States identified 458 violating facilities as SNC's, and
throughout the year an additional 537 SNCs were identified. At years end, 584 SNC's were either
brought into compliance, subject to an enforceable compliance schedule, or were subject to a formal
enforcement action.
Clean Air Act - Mobile Sources
The Office of Mobile Sources (OMS) enforces the fuels, anti-tampering, emissions warranty and
related provisions of Title II of the Clean Air Act. OMS also enforces the provisions of the Clean Air Act
related to new and in-use motor vehicles to assure conformity with Federal emission requirements. FY
1990 marked the implementation of innovative methods and equipment to streamline EPA's inspection
procedures for the fuel volatility program, further establishing EPA's enforcement presence in this area.
In addition, enforcement against lead Phasedown violations continued to require significant attention by
EPA.
EPA enforcement also focused in a new area of tampering — high performance modifications to
vehicles. EPA also concentrates its enforcement efforts on testing new motor vehicles and engines on the
production line, testing and recall of in-use motor vehicles, and monitoring the importation and
modification of nonconforming motor vehicles.
In FY 1990, EPA issued 276 Notices of Violation (NOV) with proposed penalties of over $21
million. Of these, the largest number of NOV's were issued for aftermarket catalytic converter cases
where 129 NOV's were issued involving proposed penalties of $1,584,000. The largest proposed
penalties were generated by the issuance of 13 NOV's for lead Phasedown cases that proposed penalties
of over $17 million. EPA issued 87 NOV's for fuel volatility violations with $653,712 in proposed
penalties. The fuel volatility program's impact is distributed across all gasoline-powered vehicles,
including the higher-emitting older vehicles. While all of the data from .the 1990 summer season have
not yet been analyzed, it is likely the program has effected a 14% reduction in the levels of VOC
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emissions from mobile sources, representing approximately 400,000 tons of hydrocarbons that would
otherwise have been emitted.
The motor vehicle emission recall program continues to play an important role in EPA's
enforcement efforts. During FY 1990, EPA investigations resulted in 12 recalls involving 4 manufacturers
and a total of 1.6 million recalled passenger cars and light-duty trucks. In addition, 480,000 vehicles
were recalled voluntarily by manufacturers prior to EPA testing. Also in FY 1990, in cooperation with the
state of Colorado, EPA initiated vehicle compliance testing at high altitudes. Approximately 200 tests
were conducted resulting in six engine families identified as recall candidates.
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 1990, 448 facilities were reported on the SNC exceptions list including 201 facilities
that were unaddressed from the previous year and 247 facilities that appeared on the list for the first
time during the year. Of the 448 facilities on the exceptions list, 256 returned to compliance by the end of
the year, 134 were subject to a formal enforcement action, and 58 facilities remained to be addressed
during the upcoming year.
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 1990,472 new SNCs were identified of which 173 returned
to compliance, 97 had enforcement actions taken against them, and 186 became new exceptions. Of these
new exceptions and the 411 carried over from FY 1989, Regions and States addressed a total of 251.
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.
Resource Conservation and Recovery Act Enforcement
SNC's identified during FY 1990 were those TSD facilities that were classified as High Priority
Violators according to the revised Enforcement Response Policy. In FY 1990, the program tracked a
"snapshot" of SNC's in STARS. This data may not be directly comparable to previous years when the
significant noncompliance measure tracked the number of SNCs pending at the end-of-year, the number
with initial action, those on acceptable schedules, and the number of SNC's returned to compliance. In
FY 1990, the program identified 817 TSDFs as SNCs, and at the end of the year 677 had been addressed
by a formal enforcement action.
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Superfund Enforcement
FY 1990 was an exceptional year for the Superfund enforcement program. The estimated work
value of the 283 settlements reached in FY 1990 for all types of response activities totaled $1.3 billion -
the largest dollar value of cleanup work in enforcement settlements since the passage of SARA in FY 1987
and more than double the value of settlements reached in FY 1988. Furthermore, more than 50% of
remedial response actions initiated in FY 1990 were conducted by PRPs. The Agency increased the level
of Superfund judicial enforcement activity in FY 1990 with 157 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 60 sites with a total value of $730.6 million
compared to 49 sites valued at $620.5 million in FY 1989. Under Section 107, the Agency referred 79 cases
seeking recovery of past costs valued at $184.5 million. In FY 1990, the program also substantially
increased the level .of administrative enforcement activity by issuing 270 administrative orders
including 44 Remedial Unilateral Administrative Orders with which PRPs have complied valued at
$357 million, compared to 23 such actions for a total of $181.6 million in FY 1989.
Value of PRP Response Settlements
(All Activities)
1400,
1200
1000
800
600
400
200
0
FY87
.FY88
FY89
FY90
D Other Response Settlements EH RD/RA Settlements
# 200 •
180 •
o 160 .
f 140 .
120 •
a 100 •
j 80 •
j 60 '
o 40
n 20 '
Superfund Program Accomplishments
(All Actions)
I
I
I
I
1
FY87 FY88 FY89 FY90 FY87 FY88 FY89 FY90 FY87 FY88 FY89 FY90 FY87 FY88 FY89 FY90
EPA Selected Remedy D Fund-Lead Response E3 PRP-Lead Response
Illustration 7 &8
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Toxic Substances Control Act Enforcement
Significant noncompliance under TSCA is defined as any administrative civil complaint (or
equivalent) with a proposed penalty of at least $25,000 (new for FY 1990). The TSCA violations include
PCB disposal, manufacturing, processing, distribution, storage, record-keeping or marking; Asbestos-in-
schools; AHERA; import certification and recordkeeping; testing and premanufacturing notification.
Of the 960 potentially SNC cases in the Beginning of Year (BOY) inventory, 768 were pending
issuance and 192 were open. Five hundred thirty-eight (70% of the 768 pending cases had enforcement
actions issued during the fiscal year, with 147 (27%) meeting the new SNC criteria. Of the 339 SNC
cases on the inventory, 155 (46%) were closed by the end of the year. (Note: The numbers in the BOY are
inflated in comparison to last year due to introduction of automated STARS reporting through the FITS
system. The information that can rule out non-SNC violations is not available at the BOY for most cases
that have not been issued. Therefore, we choose to collect all possible SNCs at the BOY. The reporting
method for FY 1991 will eliminate the BOY in favor of tracking all SNCs in current fiscal year and
previous fiscal year categories.)
During FY 1990, the Regions identified 90 and issued 73 new SNC violations for the subset of
TSCA violations targeted for issuance within 180 days of inspection (PCB, AHERA and Asbestos-in-
sehools violations). Of these, 64% were issued within the 180-day timeframe, against a 75% target.
For FY 1991 and beyond, all SNC administrative complaints, regardless of the inspection date
will be considered for the purposes of timeliness. Prior to FY 1991, only SNCs from current year
inspections were considered.
Federal Insecticide, Fungicide, and Rodenticide Act Enforcement
Significant noncompliance under FIFRA is defined to include pesticide misuse violations and
suspension/cancellation actions. Enforcement of pesticide use violations of FIFRA is delegated to 48
States. Sections 26 and 27 of FIFRA establish standard procedures for giving States primacy and
authorize the Administrator to override or rescind a grant of primacy in certain situations. Since EPA is
not in a position to monitor State responses to each allegation of pesticide misuse referred to the Agency,
the regional pesticides programs focus oversight activities on evaluating the overall success of State
pesticide enforcement actions. The programs track, on a case by case basis, only those allegations
involving the most serious violation of uses. These categories of significant violations are agreed to in
advance by the Region and State. Categories vary among the States, based on patterns of pesticide use
characteristic to the State.
Any allegation of misuse is formally referred to a State and tracked by the Region in two stages;
investigation and enforcement response. During investigation, the Region contacts the State regarding
planned enforcement action. The State has 30 days after completing the investigation, then, to taken an
appropriate response action. (This timeframe can be extended by the Region if circumstances warrant.)
In FY 1990, EPA and the States addressed 157 SNCs, while 19 SNCs awaited action at the end of the
year.
For FY 1991 and beyond, a new definition of SNC will be applied for FIFRA federal violations.
FIFRA federal SNCs will be any administrative complaint where a violation has an associated gravity
level of "1", according to the new FIFRA enforcement Response Policy. The above set of SNCs will also,
for the first time, be tracked for adherence to the 180-day case issuance standard applied to TSCA and
EPCRA SNC cases.
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Emergency Planning/Community Right to Know Act Enforcement
Significant noncompliance for EPCRA is defined as violations for non-reporting/failure to report
or falsified reporting. Of the 237 potentially SNC cases in the Beginning of Year inventory, 145 were
pending issuance and 92 were open. One hundred eleven (77%) of the 145 pending cases had enforcement
actions issued'during the fiscal year, with 104(94%) meeting the, SNC criteria. Of the 196 SNC cases
identified from the BOY, 80 (41%) were closed by the end of the year. [Note: In FY 1991, the reporting
based upon the BOY will be eliminated in favor of tracking all SNCs in current fiscal year and previous
fiscal year categories.] During FY 1990, the Regions identified 145 and issued 75 new SNC violations. O f
these, 47% were issued within 180 days of inspection.
For FY 1991, all SNC administrative complaints, regardless of the inspection date will be
considered for the purposes of timeliness. Prior to FY 1991, only SNCs from current year inspections were
considered.
Federal Facilities Enforcement
During FY 1990, the Federal Government continued to make a substantial commitment to the
environment. In April, 1990, EPA created the Office of Federal Facilities Enforcement (OFFE), a unique
multi-media enforcement office, to serve as the central agency point of contact for all Federal
environmental programs. Developed in response to increasingly complex conditions at Federal facilities
nationwide, OFFE provides a centralized point of focus for Federal facility compliance with all
environmental laws and requirements.
The Federal Government manages a vast array of industrial activities at its 27,000 installations.
At nearly 5,000 of these facilities, the Government has budgeted approximately $1.74 billion for
environmental programs. This record amount was 19% higher than the previous record in FY 1989 of
$1.46 billion. In FY 1990, this amount included plans for the following program areas; $156 million for
the Clean Air, $517 million for CERCLA, $195 million for Clean Water, $2 million for Endangered
Species Act, $ 1 million for FIFRA, $593 million for RCRA, $38 million for TSCA, and $234 million for
other projects. These amounts are an indication of the Government's ongoing commitment to
environmental compliance.
EPA has continued to encourage compliance at all Federal Facilities through a vigorous
enforcement and outreach program. Nationwide, over 930 inspections were conducted. In spite of
significant interaction between EPA and Federal agencies, overall compliance rates for unaddressed
significant violations remained somewhat constant at 65%. For Department of Defense (DOD) facilities,
overall compliance remained relatively constant at 50%, for DOE overall compliance also remained
constant at 80%. Within each media, the Government's compliance rate was: 90% for CAA, 41% RCRA,
91% for NPDES, 66% for TSCA, and 69% for multi-media inspections.
Nationwide, a record number of enforcement agreements were executed to respond to the complex
conditions at Government facilities. For violations under RCRA, EPA issued notices or entered into
Federal Facility Compliance Agreements at 46 facilities. Within each final agreement, provisions were
made for citizen enforceability. Considerable-efforts were also made in each environmental statute to
address instances of noncompliance with an enforceable agreement.
Beyond assuring compliance, EPA worked closely with other Federal agencies performing
environmental restoration at the 116 Federal facilities which are on the National Priorities List.
Working closely with state regulators a record 45 Interagency Agreements were developed to focus
Federal cleanup efforts at most significant threats through expedited response actions (ERA's) and
strategic targeting response priorities. .
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A common commitment at DOE's Hanford Facility, Washington, led to record funding of their
environmental restoration activities at $89 million. EPA also worked closely with DOE to identify ERA
opportunities. This culminated in the execution of an Agreement in Principle in October, 1990, to initiate
three ERA'S at an FY1991 cost of $10 million.
B. Regional Office Accomplishments
Region I - Boston
(Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont)
Region I's enforcement efforts during FY 1990 set several records and established new directions.
The Region issued an all-time record of 229 administrative orders to violators in New England during FY
1990 (not including actions taken at Superfund sites), and referred 32 civil and six criminal cases for
prosecution by the Department of Justice. By comparison, in FY 1989 the Region issued 177
administrative orders and referred 29 civil and eight criminal cases.
Region I piloted a new approach to enforcement through use of cross-media procedures designed
to facilitate decision-making about the potential for multi-media enforcement at violating facilities.
The Region made it standard practice to perform a multi-media compliance/enforcement status check for
a facility slated for enforcement action and to obtain a Toxics Release Inventory Report for the facility.
The results of the database searches for those facilities with some multi-media enforcement potential
were summarized on a Multi-Media Compliance Check form and discussed at managers' enforcement
meetings in the Office of Regional Counsel, with program representation as appropriate. Based on the
discussions at the enforcement meetings, decisions were made to develop some actions as multi-media
enforcement cases, to plan for further cross-media coordination, or to take other follow-up action.
The heightened emphasis in the Region on multi-media enforcement led the Region in FY 1990 to
make two major multi-media civil referrals and to coordinate issuance of administrative complaints
when developed against the same violating facility.
In another new direction for the enforcement program, the Region made increased efforts in FY
1990 to encourage innovative forms of relief in settling enforcement actions. As examples, the Region
began to consider the potential for pollution prevention projects and environmental audits as components
of settlements. In addition, during the latter part of the year, the Region made a major commitment to
developing a strategic plan for its enforcement program.
The overall objective of these program directions is to maximize the environmental benefit from
enforcement actions through effective case screening and targeting and creative use of the tools available
to the Region for case resolution. These initiatives begun in FY 1990 are certain to become cornerstones of
Region I's enforcement program in the future.
Region II - New York
(New Jersey, New York, Puerto Rico, Virgin Islands)
Region ITs record for FY 1990 displays a continued strong commitment to an aggressive, targeted
enforcement enforcement program.
Multi-Media Enforcement Pilot Project - A workgroup was created to identify candidates for
multi-media inspections, and plan a concerted enforcement response to documented violations. Two such
inspections were performed during FY 1990, and five or more are scheduled for FY 1991. Both FY 1990
inspections resulted in multi-media enforcement actions. The major case concerns Caribbean Petroleum, a
Puerto Rico oil refinery, against which four concurrent administrative actions were filed (under RCRA,
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CWA Section 311, EPCRA, and CWA Section 309) assessing total civil penalties in excess of $700,000. A
goal of the action is to secure respondent's agreement to institute a corporate environmental auditing
program and/or implement a suitable pollution prevention project.
Enforcement Leveraging - A pilot program to leverage the use of scarce enforcement resources was
implemented in April, focussing on Categorical Industrial Users (CIUs) in violation of pretreatment
rules. We invited such violators to voluntarily come forward and settle their penalty liability with
EPA. The "carrot" was that while such violators would have to pay the economic benefit portion of the
penalty specified in our penalty policy, we would reduce the gravity portion. The "stick" is that
violators who failed to come forward will, when identified, be subject to more severe sanctions. Twenty
facilities identified themselves, and two final orders were issued in FY 1990; We will also actively seek
to identify violators who did not come forward.
Superfund Enforcement - The total dollar value of all Region II CERCLA settlements and orders
complied with in FY 1990 was over $375 million. Notable settlements include the Occidental/S-Area
site, where RD/RA is valued at $117.5 million; the Lone Pine settlement, valued at $40 million; the York
Oil mixed funding settlement, in which a PRP was pre-authorized for reimbursement of 48% of its
RD/RA costs, among the highest yet approved by EPA; and the Mattiace and BFI. cases, in which
penalties and damages of $350,000 and $600,000, respectively, were obtained.
Consent Decree Enforcement - Region II initiated 10 consent decree enforcement actions during FY
1990, and over $1.3 million in stipulated penalties was collected for consent decree violations.
Tzavah Asbestos Case - The judgment in this case yielded a total civil penalty of $555,000, the
largest amount ever from a Clean Air Act NESHAPS for asbestos demolition/renovation.
Vineland Chemical LOIS Case - The court in this case awarded a civil penalty of $1.2 million,
the highest ever for a RCRA Loss of Interim Status case.
Waste Oil Enforcement - Civil actions were filed against 7 waste oil handlers for violation of
the RCRA used oil and other Subtitle C rules. Two administrative actions were also filed seeking
$125,000 in penalties from other violators.
Region III - Philadelphia
(Delaware, District of Columbia, Maryland, Pennsylvania, 'Virginia, West Virginia)
EPA's Philadelphia's office issued nearly 300 administrative enforcement actions, the highest
total ever for the Region.
The Region referred 48 civil cases to the Department of Justice, the third highest Regional total,
and the CERCLA program referred a record number of cases (29). The Region matched its previous high
of nine criminal referrals to the Department of Justice.
Based upon a review of several Region III case studies, it was clear that using a single-media
approach for addressing sites with multi-media problems is not appropriate in all cases. Events that
occurred at the Avtex Fibers plant in Front Royal, Virginia, demonstrate the need for a coordinated
approach to regulating releases from facilities to address all media. Avtex Fibers was the impetus for
Region III to examine and propose a cross-media enforcement project.
A cross-media work group was convened in October, 1989 to evaluate the need and potential for
implementation of cross-media enforcement. The work group selected nine facilities to target for cross-
media enforcement for the pilot project. These facilities were proposed after comparing Toxic Release
Inventory (TRI) data, significant noncompliance (SNC) history for each program, and the Kanawha
Valley Toxics Screening Study. The work group coordinated multi-media site evaluations, the filing of a
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FY1990 Enforcement Accomplishments Report
consent decree to settle CWA/RCRA violations at a pulp and paper mill (Penntech Papers, Johnsonburg,
PA), and the development of joint SD.WA/CERCLA orders to remedy drinking water threats near non-
NPL sites. In response to Administrator Reilly's goals for the Chesapeake Bay, the Region embarked on
a multi-media objective to reduce significant non-compliance (SNC). NPDES-SNC was reduced from
8.3% at the start of the initiative to 4.6%, and the number of federal facilities in non-compliance with at
least one environmental program was reduced from 37 to 13.
Review of the site assessments completed in FY 1990 by the RCRA contractor demonstrates the need
to address potentially significant risks posed by non-regulated and regulated releases. In FY 1991, the
work group will develop a strategy for each facility .and may include using a risk- based approach under
Superfund authorities or utilizing several different authorities in one enforcement action. The facilities
will be prioritized according to the risk they pose to human health and the environment. The work
group and EPA upper management will then evaluate the implementation of the cross-media enforcement
project and determine its applicability on a wider scale.
Negotiations were completed with federal facilities for the remaining Interagency Agreements
for Superfund clean-ups. Region III is the first Region to have signed lAG's with all their federal
facilities on the NPL.
The Region obtained a guilty plea in a criminal case involving illegal filling of wetlands that
resulted in the largest monetary penalty assessed against an individual in an environmental case - $1
million in fines and $1 million in restitution (US v. Paul Tudor Jones).
Several additional national/Regional firsts were also achieved:
1. first national RCRA ROD (IBM Manassas, VA);
2. first penalty assessed against another federal agency by EPA (Letterkenney Army Depot);
3. first national SDWA Section 1431 order against a private company for remediation of a
drinking water supply (Foote Mineral);
4. attained the highest penalty in a vinyl chloride NESHAP case and reached agreement for a
precedent-setting audit program to ensure compliance (Occidental Chemical Corp.).
Region IV - Atlanta
(Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee)
Region IV's programs achieved strong levels of performance and set national precedents in
several cases. In addition, as the Agency's lead region for enforcement in FY 1990, Region IV was
instrumental in setting an agenda for a more integrated, effective enforcement program in the 1990s.
Regional organizational changes were made in FY 1990 to facilitate enforcement efforts. Region
IV began a pilot reorganization of the Office of Regional Counsel to add a branch that exclusively
focuses on multi-media, and the Policy, Planning and Evaluation Branch designated staff to ensure that
four-year strategic enforcement themes, including multi-media enforcement, are institutionalized in
Region IV.
Region IV began coordinating with the National Enforcement Investigations Center (NEIC) to
identify multi-media noncompliers. This effort utilizes NEIC's Corporate Cross-Regional Identification
Program (CCRIP). Based upon retrieval criteria defined by Region IV's Air, NPDES, and RCRA
programs, a list is generated of facilities that have violations in at least two of the three programs. The
list also indicates whether the facility is on the National Priorities List, or if it reported emissions for
the Toxics Release Inventory. The list is updated on a quarterly basis. The multi-media noncomplier list
is useful for inspection targeting, identification of multi-media n9ncompliers, and case screening. Region
IV is also investigating the use of this list in enforcement negotiations.
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FY1990 Enforcement Accomplishments Report
A second product of NEICs Corporate Cross-Regional Identification Program is the corporate
profile retrieval. For each facility showing a violation in the Air, NPDES or RCRA programs, CCRIP
searches data bases in all EPA Regions to determine if the facility has corporate affiliates which also
have violations. This retrieval is an indication of corporate noncompliance patterns. It is primarily
useful for enforcement negotiations and case screening; however, it may have utility in targeting
corporate affiliates with compliance problems. Region IV led the nation in the number of criminal
referrals. In addition, this year the Region criminal enforcement program tops the nation in number of
defendants charged and the total number of cases in which charges were filed. These successes are
largely due to the Region's specific emphasis on criminal enforcement.
Traditional enforcement activities also continued to be a high .priority in FY 1990. EPA-lead
actions included 366 administrative orders and 35 civil referrals to DOJ. Region IV's Superfund Cost
Recovery program had the first and only treble damage award at the Naomi/Walker County site ($1
million) and was very successful in de minimis settlements, including a case with over 200 PRPs. In
RCRA, State penalty amounts increased from $3.1 million in FY 1989 to $6.1 million in FY 1990. The
Water Division emphasized Wetlands enforcement, resulting in 35 administrative actions. A highlight
for the Air, Pesticides and Toxics Division was Hoechst Celanese, who was found in violation of the
NESHAP for equipment leaks of benzene based on a review of Title 313 emissions release data. Region IV
responded with a civil referral.
Region V - Chicago
(Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin)
During Fiscal 1990, Region V entered into several multi-million dollar settlements with an
emphasis on multimedia enforcement and enforcement at Federal facilities. The filing of a consent
decree with USX Gary Works is one of the nation's major environmental accomplishments for the year.
Under terms of the decree, USX will undertake environmental improvements estimated at $32.5 million,
which includes a $7.5 million sediment characterization and remediation and a $1.6 million penalty for
Clean Water Act (CWA) violations.
Five criminal cases involving violations of the Safe Drinking Water Act or CWA were filed. A
significant settlement of one of those cases involved Menominee Paper Co., where the company pleaded
guilty to falsifying 11 discharge monitoring reports and was fined $100,000 in addition to a $2.1 million
civil penalty settlement. A notable part of the case was a judicial order that Menominee Paper take out a
full-page newspaper advertisement disclosing its offenses and the penalty.
Region V entered into an important consent agreement with the U.S. Department of Energy
(DOE) involving cleanup of the Feed Materials Production Center at Fernald, OH. The result was a $2
billion, five-year plan that, along with a similar facility at Hanford, WA, will serve as models for
cleanup of other government and privately owned nuclear sites. Contamination from the Fernald center
was affecting air, land, and water on site and in the community adjacent to the plant. Hazard studies
were scrutinized to assure DOE, the public, and the news media that cleanup would be carried out to
protect human health and the environment. Major impacts of this agreement are that it firmly
established EPA's authority to exercise its authority at facilities operated by other Federal agencies
and that it made the U.S. EPA Administrator the final arbiter of disputes, moving that function from the
Office of Management and Budget. Other Region V Federal facilities affected during the year were
DOE's Mound Plant in Miamisburg, OH, and Hicks Air Force Base at Minneapolis/St. Paul. The Mound
Plant cleanup is estimated at $800 million.
Under Superfund, enforcement was outstanding with Region V accounting for almost one quarter of
the national referrals to the Department of Justice and 29 Records of Decision signed. A consent decree at
the Liquid Disposal Inc. site in Utica, MI, requires 41 settling defendants to carry out a $22.4 million
cleanup. The Region also settled one of its oldest cases against Alvin Laskin and about 140 other
potentially responsible parties (PRPs). The PRPs agreed to pay $1.47 million of a $5 million cleanup, the
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FY1990 Enforcement Accomplishments Report
first $350,000 in oversight costs, and any future oversight costs exceeding a $1.75 million estimate.
Under RCRA, the Region set a precedent in the Master Metals, Inc. consent decree. The decree
required the company to close all its treatment, storage, and disposal units because of its loss of interim
status (LOIS). Only certain specified container storage areas not subject to LOIS were exempted. This
decree is the first settlement providing a compliance schedule for non-LOIS container storage units while
requiring closure of LOIS units at the same facility. Another important consent decree required Chemical
Waste Management, Inc. to pay a $750,000 penalty and close an enormous sludge pile at its Vickery, OH,
facility. Additionally, the Region resolved a six-count Toxic Substance and Control Act (TSCA) case
with Chemical Waste for operations at its Chicago incinerator. This action resulted in a $3.75 million
civil penalty, a record TSCA administrative settlement.
Region VI - Dallas
(Arkansas, Louisiana, New Mexico, Oklahoma, Texas)
The Region VI enforcement program's goal is to achieve compliance through fully considered,
decisive and effective enforcement. Enforcement efforts are directed, on a priority basis, at the most
serious threats to human health and the environment. Our enforcement program seeks these objectives:
1. Emphasis on environmentally significant and precedent-setting cases.
2. Greater penalties aimed at removing economic benefits of non-compliance and at deterrence;
3. Use of leading-edge enforcement techniques to complement traditional activities; and
4. Leveraging environmental protection capability through state enforcement and capacity
building.
During FY 1990, the Region developed an enforcement pilot project which focused on innovative
techniques such as targeting, risk-based decision making, and screening. It included meetings between the
Regional Administrator and senior executives of corporations that owned targeted facilities. The
meetings focused the attention of these senior executives on the serious interest of Regional management
in reducing toxic releases from their facilities.
The pilot project, the Toxic Release Reduction Project, is a two phased approach that will
attempt to obtain reduction of risk from toxic chemicals emitted from industrial sources. Phase I consists
of a review of selected sources with a recalculated individual risk of 10-2 or greater in the Air Toxic
Exposure and Risk Information System (ATERIS) data. The purposes are to explore the possibility of
reducing toxic emissions, to insure compliance with all regulatory provisions, and to conduct a complete
multi-media risk assessment. A key feature of this effort is meetings between the Regional
Administrator, State officials, and company executive officers, which have already occurred.
Enforcement actions will follow as appropriate.
Phase II consists of a multi-media compliance investigation and subsequent multi-media risk
assessment of selected sources in a target area to explore the potential for risk reduction. The target area
selected was the heavily industrialized area between New Orleans and Baton Rouge, Louisiana, on the
Mississippi River. Risk screenings were performed on facilities reporting under the Emergency Planning
and Community Right-to-Know Act Section 313 (Toxic Release Inventory, or TRI data) which considered
the relative toxicities of the chemical emissions as well as the quantity of emissions.
Both phases are focused on reductions of toxic emissions with demonstrable or predictable effects
on public health and the environment, and they will seek facility alterations through the following
mechanisms: (1) formal enforcement actions, (2) review of existing permits, (3) non-traditional methods,
such as discussions between the Regional Administrator and facility executives to obtain voluntary
plant-wide emission reductions, (4) environmental awards for facilities which are in compliance with
all regulations in an exemplary manner, (5) create incentives to encourage facilities to report and correct
violations.
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FY1990 Enforcement Accomplishments Report
Through the Region's awards program, members of the regulated community that achieve
exemplary compliance in all media are recognized by the Regional Administrator. This program has
been well received in the regulated community and recognized on a national level.
The Region collected over $1.3 million in administrative penalties for violations of the Clean
Water Act, more than any other Region, while issuing over 900 administrative orders. Under the
Resource Conservation and Recovery Act, the Region collected over $1.7 million in penalties. Under the
criminal enforcement program, about one third of the total national amount of sentenced jail time was
assessed against violators in Region VI. Finally, among the administrative enforcement actions, Region
VI realized a civil penalty of $375,000 and a commitment of some $60 million in cleanup cost outlays from
Transwestern Pipeline Company for remediation of PCB contaminated natural gas compressor stations in
New Mexico.
Region VI has worked closely with Mexico's Secretariat of Urban Development and Ecology
(SEDUE). EPA and SEDUE have institutionalized inspections of maquiladoras in Mexico and their sister
plants in the U.S.
Region VII - Kansas City
(Iowa, Kansas, Missouri, Nebraska)
Region VII's enforcement program goals for FY1990 included: working with the States to initiate
timely and aggressive enforcement actions for environmentally significant violations; increasing the use
of pollution prevention conditions and environmental audits in settlements; obtaining enforceable
agreements for compliance and remediation at Federal Facility sites; continuing to build and maintain a
coordinated team approach among all programs, the Office of Regional Counsel and the Office of
Criminal Investigations; and increase multi-media enforcement activities.
The following are highlights of the many enforcement accomplishments achieved by Region VII,
including its four states, in FY1990:
State Enforcement: The Region VII states issued 398 administrative orders and initiated 100
referrals to the State Attorney General Offices. The 57 referrals in the Water Program ranked
first among all regions nationally. The States (and the Region) achieved a substantial improvement in
the timeliness of the enforcement actions against high priority violators in the RCRA Program.
Federal Enforcement: Significant Increase in Administrative Penalties: The Region VII office
assessed over $1 million in administrative penalties, an increase of 70% over FY 1989. This includes a
222% increase in TSCA penalties, a 61% increase in FIFRA, a 50% increase in Water, and a 20% increase
in RCRA.
Major Judicial Settlement: The Region obtained a $1.5 million penalty settlement in a Clean
Water Act judicial action against Eagle-Picher, in addition to an agreement to conduct a multi-media
audit.
Increase in Superfund Enforcement: Superfund issued 27 administrative orders, including 8
unilateral orders. This represented an increase of 59% from FY 1989.
Aggressive Federal Facility Enforcement Programs: Of the $1 billion in PRP-lead clean-ups
obtained through Superfund enforcement agreements, $841 million is attributable to environmental
clean-ups to be completed by Federal Facilities under Section 106 Interagency Agreements. '
Pollution Prevention Settlements: The Region obtained agreement through TSCA settlements to
voluntary removal and proper disposal of PCB transformers, oil, capacitors and soil, with an estimated
cost of over $6.1 million.
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FY1990 Enforcement Accomplishments Report
Times Beach Settlement: The Region reached a settlement agreement with Syntex Agribusiness
and Syntex (USA) for clean-up a incineration of dioxin-contaminated soil and debris from 28 dioxin sites
in Eastern Missouri, with an estimated project cost of over $200 million.
Region VIII - Denver
(Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming)
In Region VIII, enforcement tools are used in appropriate and innovative ways to correct
environmental and health problems, to remove economic benefits accrued by polluters as a result of
noncompliance, to encourage environmental stewardship by all, and to help preserve the unique and
largely unspoiled environments in its States for future generations to enjoy. The States of Colorado,
Montana, North Dakota, South Dakota, Utah and Wyoming, and many county and local governments,
often have lead roles through delegated program responsibilities or their own individual environmental
program requirements.
During 1990, the Region added focus to its enforcement efforts by providing a forum for its
enforcement branch chiefs to work closely with the Deputy Regional Administrator to bring a cross-
program focus to environmental enforcement. A rotational position was established for enforcement
program branch chiefs to enhance their knowledge of both the individual enforcement programs and
national environmental enforcement directions, and to help assure that implementation of new agency
initiatives reflect the views of Regional enforcement staff. Important first steps were taken to formalize
institutional relationships needed to support these new initiatives.
During FY 1990, the Region emphasized its judicial enforcement program and increased the
numbers of new civil cases referred to DOJ to 24 (up from 11 in FY 1989). For this same period of time, the
number of administrative enforcement actions remained relatively stable at 230 actions (versus 228 in
1989). And, substantial resources were used for criminal investigations at the Department of Energy's
Rocky Flats Facility near metropolitan Denver.
Specific noteworthy accomplishments included:
The Region began implementing the national Enforcement 4-Year Strategic Plan with a
comprehensive participatory approach to enforcement planning, multi-media targeting, strategic value
case review, and enforcement communications. New activities during FY 1990 included a process for
screening and strategic value case review; active work groups for developing a regional enforcement
Strategic plan, for targeting and screening, and for communications; and a geographic enforcement
initiative.
Under the CWA 404 Program, the Region met its commitment for Class I penalty complaint
reviews by the Office of Wetlands Protection and the Office of Enforcement; thereby setting the stage for
assessment of penalties for wetlands enforcement. The Region is publicizing each enforcement action in a
planned and targeted manner to obtain the maximum deterrent value from each action. The UIC Program
settled the civil case against Pioneer Exploration, Inc. for the largest dollar penalty collected to date in
the UIC program nationally. The case resulted in substantial environmental benefit when the operator
agreed to properly plug and abandon several injection wells that had failed mechanical integrity tests.
Region VIII led the Nation in having all of its major permittees in compliance with secondary treatment
standards. A key case in this program was a civil judicial referral against Western Sugar which
resulted in the largest environmental penalty ever collected in the State of Montana.
Emphasis under the UST Program involved a leak detection enforcement initiative on Indian
lands. Several phases were completed including tank surveys, training of Indian environmental
coordinators, information request letters and follow-up enforcement. In FY 1990, this initiative resulted
in two actions against the Bureau of Indian Affairs.
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FY 1990 Enforcement Accomplishments Report
Region IX - San Francisco
Arizona, California, Hawaii, Nevada, Trust Territories )
Region IX's enforcement goals are to achieve and maintain compliance, enhance state capability,
establish deterrence, and prevent pollution. The Region's approach balances these five goals in
determining the most effective and efficient means to achieve high rates of compliance in all
environmental programs. Throughout the year, the Region emphasized risk reduction, toxic loadings
reduction, pollution prevention and habitat protection.
The Region prepared 38 new referrals during FY 1990, 21 of which were forwarded to the
Department of Justice during the year. Two criminal referrals were forwarded to DOJ for prosecution.
Sixteen referrals were concluded during the year, resulting in penalties of $2,733,000 and awarded cost
recoveries of $3,512,120. A total of 147 Administrative enforcement actions were issued.
Unilateral Administrative Orders (UAO) under CERCLA were utilized at seven NPL sites. The
UAO at Koppers requires $70 million in remediation work. The total estimated Remedial
Design/Remedial Action work being performed by potentially responsible parties is $133.2 million.
CERCLA Federal Facility Agreements* were successfully negotiated with the Army, Air Force, Navy and
Marine Corps, at 12 NPL sites.
An Enforcement Pilot Project was initiated in cooperation with the State of California Regional
Water Quality Control Board and the U.S. Army Corps of Engineers to address pretreatment, above
ground oil storage facilities and wetlands preservation in the San Francisco Bay area. The pilot has
resulted in both judicial and administrative enforcement cases and provided a focus for shared
environmental concerns in three regulatory areas that impact the vital resources of the bay.
Supporting State and local agency program development is a continuing priority. The South
Coast Air Quality Management District (SCAQMD) in California successfully negotiated a $1,000,000
cash penalty in addition to a schedule to achieve compliance by Lockheed Aerospace Corporation. The
case was identified as part of the cooperative EPA, State Air Resources Board, and SCAQMD aerospace
rule effectiveness study. '
Establishing significant legal precedent is also a part of the Region's enforcement agenda. With
the Shell Oil case, Region IX established Clean Water Act Spill Prevention, Control and
Countermeasure penalties on a PER DAY basis. Shell agreed to a $20 million settlement including
penalties and resource damage payments to the 16 federal, state and local agencies cooperating in this
enforcement action addressing a 1988 crude oil spill to San Francisco Bay.
Region X - Seattle
(Alaska, Idaho, Oregon, Washington)
Region X experienced several substantial changes during Fiscal Year 1990 which have
strengthened emphasis on enforcement issues. The new management team in Region X is working to
implement Administrator Reilly's emphasis on EPA's enforcement program. Key to maintaining this
emphasis has been the Deputy Regional Administrator's taking the lead in focusing Regional attention
on enforcement activities.
One specific area of attention is multi-media enforcement. Programs are now coordinating to
identify candidates for multi-media enforcement action; multi-media inspections have started and will
continue through FY91 as a step in this process.
Within Region X, waste emissions from pulp and paper mills are proving to be one of the most
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FY1990 Enforcement Accomplishments Report
difficult environment problems faced to date. There are 23 mills scattered throughout the Region;
however, 20 of the facilities are located in Washington and Oregon. Each of these plants represent a
potentially significant risk to the environment and human health. Unlike many of the industries EPA
regulates, pulp and paper mills tend to have emissions and industrial processes that cross several of
EPA's single media programs. Virtually all of the regulatory programs have an interest in this
particular industry.
Modeled after the multi-media inspections conducted at federal facilities over the past several
years, Region X will be conducting multi-media inspections at two pulp mills, focusing on toxic emissions.
The inspection team will consist of EPA and State inspectors, and level-of-effort (LOE) contractors. The
project will be closely coordinated with both the regional Pollution Prevention initiative focusing on
pulp mills as well as the headquarters initiative aimed at dioxin and toxic reductions at pulp mills.
A task force has been commissioned to strengthen enforcement and to identify ways to make the
enforcement process more efficient. Chaired by the Regional Counsel, the task force addresses:
1. improving the targeting process;
2. improving the discovery of violations, including improving the quality of evidence;
3. improving the interface between programs and the legal process; and
4. demonstrating senior management's commitment to enforcement.
Fiscal Year 1990 can be best described as a transition year for Region X. Change is also expected
to be the hallmark of Region X's enforcement programs over the next year as initiatives are implemented
under the direction of the new regional leadership.
6-14
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FY1990 Enforcement Accomplishments Report
Appendix
Historical Enforcement Data
List of Headquarters Enforcement Contacts
List of Regional Enforcement Information Contacts
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FF1990 Enforcement Accomplishments Report
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FY1990 Enforcement Accomplishments Report
EPA Headquarters Enforcement Offices
Office of Enforcement (OE)
Assistant Administrator
Deputy Assistant Administrator
Deputy Assistant Administrator-Federal Facilities
Director of Civil Enforcement
Associate Enforcement Counsel for Air Enforcement
Associate Enforcement Counsel for Water Enforcement
Associate Enforcement Counsel for Superfund Enforcement
Associate Enforcement Counsel for RCRA Enforcement
Associate Enforcement Counsel for Pesticides and Toxic Substances
Office of Criminal Enforcement
Office of Compliance Analysis and Program Operations (OCAPO)
Office of Federal Activities (OFA)
Office of Federal Facilities Enforcement
Contractor Listing Program
National Enforcement Investigations Center (NEIC - Denver)
Office of Air and Radiation (OAR)
Stationary Source Compliance Division (SSCD)
Field Operations and Support Division (FOSD)
Manufacturers Operations Division (MOD)
Office of Water (OW)
Office of Water Enforcement and Permits (OWEP)
Office of Drinking Water (ODW)
Office of Solid Waste and Emergency Response (OSWER)
Office of Waste Programs Enforcement (OWPE - CERCLA)
Office of Waste Programs Enforcement (OWPE - RCRA)
Office of Pesticides and Toxic Substances
Office of Compliance Monitoring (OCM)
202-382-4134
202-382-4137
202-382-4543
202-382-4140
202-382-2820
202-475-8180
202-382-3050
202-382-4326
202-475-8690
202-475-9660
202-382-4140
202-382-5053
202-475-9801
202-475-8777
303-236-5100
703-308-8672
202-382-2633
202-382-2479
202-475-8304
202-382-5543
703-382-4810
202-382-4808
202-382-7835
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FY1990 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
Boston, MA 02203
617-565-3424 FTS: 8-835-3417
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: 8-597-9370
Office of Public Affairs
345 Courtland Street, N.E.
Atlanta, GA 30365
404-347-3004 FTS: 8-257-3004
Office of Public Affairs
230 South Dearborn Street
Chicago, IL 60604
312-353-2072 FTS: 8-353-2072
Office of External Affairs
First Interstate Bank Tower at Fountain Place
1445 Ross Ave. 12th Hoor Suite 1200
Dallas TX 75202
214-655-2200 FTS: 8-255-2200
Office of Public Affairs
726 Minnesota Avenue
Kansas City,KS 66101
913-551-7003 FTS: 8-276-7003
Office of External Affairs
999 18th Street Suite 500
Denver, CO 80202-2405
303-293-1692 FTS: 8-330-1692
Office of External Affairs
75 Hawthorne Street
San Francisco, CA 94105
415-744-1020 FTS: 8-484-1585
Office of the Deputy Regional Administrator
1200 Sixth Avenue
Seattle, WA 98101
206-442-5810 FTS: 8-399-5810
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FY1990 Enforcement Accomplishments Report
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