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FY 1991 Enforcement Accomplishments Report _^_
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Table of Contents
I. Message from Administrator William K. Reilly and Herbert H. Tate, Jr.,
Assistant Administrator of the Office of Enforcement
II. Institutionalizing a Cross-Program/Multi-Media Enforcement Perspective
A context setting narrative that describes the Agency's cross-program/multi-media enforcement
initiatives and its progress implementing them.
III. Environmental Enforcement Activity
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 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.
Subsections on local enforcement, Federal facilities, cooperative work with environmental groups,
relationships with other Federal agencies and international issues.
VI. Media Specific Enforcement Highlights and Regional Accomplishments
Brief summaries of each National program and each Region's FY 1991 highlights.
Appendix: Historical Enforcement Data
FY 1991 National Penalty Report
List of EPA Headquarters and Regional Enforcement Information
Contacts
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FY1991 Enforcement Accomplishments Report
A Message from the Administrator and Assistant Administrator
EPA's commitment to the vigorous enforcement of environmental law, and
the commitment of the Bush Administration, is reflected in the significant
expansion of the Agency's civil, criminal, and federal facility enforcement activities
since 1989. Overall, this Administration has assessed about 55 percent of all the civil
penalties and criminal fines assessed in EPA history -- $200 million for FY 1989-1991
compared with $166 million for FY 1972-1988. The Department of Justice under
Attorneys General Richard Thornburgh and William Barr has our gratitude
indeed, the .Department deserves the thanks of every American for its full support
and participation in this enterprise.
Over the past year, EPA enforcement again operated at record levels, setting all-
time highs for criminal referrals and civil penalties. EPA's enforcement record
shows that over the past three years the Agency:
Referred to the Department of Justice over 44 percent of all criminal
referrals in Agency history;
Obtained 50 percent of the Agency's total guilty verdicts or pleas,
resulting in sentences meting out more than 65 percent of all months
of incarceration ordered in Agency history; and
Assessed more than 67 percent of all criminal penalties assessed in
Agency history.
During FY 1991, EPA moved beyond its traditional enforcement of media-
specific laws to emphasize cross-program, multi-media enforcement. We now target
our inspection and enforcement efforts on the basis of the most significant health
and ecological risks across all environmental media.
We achieved these levels and took these steps even as we increased our use of
non-regulatory tools like voluntary pollution prevention, environmental
information and education, and market-based economic incentives to achieve our
goals. Indeed, some of the voluntary, direct action programs like "33/50" are
achieving results faster than our more traditional regulatory programs. Under this
program, more than 700 companies have committed to reduce - by 300 million
pounds - emissions of 17 high-priority toxics by 1995.
Nonetheless, enforcement remains one of the most important tools in EPA's
arsenal. Only because we are committed unequivocally to vigorous enforcement are
we able to expand our methods as we seek the most cost-effective approaches to
environmental protection.
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J99J Enforcement Accomplishments Report
The FY 1991 Enforcement Accomplishments Report provides a concise
summary of the Agency's enforcement efforts over the last year, including
explanations of EPA's Strategic Plan for Enforcement, highlights of significant
enforcement cases, and statistical information on EPA and state programs. Above
all, this report sends a clear message of deterrence to potential violators: this Agency
is committed to a vigorous and effective environmental enforcement program, now
and into the future.
William K. Reilly"
Administrator
Herbert H. Tate, Jr. /~ /
Assistant Administrate?-^
for Enforcement
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1991 Enforcement Accomplishments Report
II, FY1991: Institutionalizing a Cross-Program/Multi-Media
Enforcement Perspective
In retrospect, FY 1991 may well prove to be a turning point for environmental
enforcement. It was the year that the Environmental Protection Agency (EPA)
moved from policy development to implementation of its Enforcement Four-Year
Strategic Plan. During the past twelve months, the Agency has made major strides
in integrating a cross-program/multi-media approach to its inspection and
enforcement programs. By integrating a cross-program/multi-media perspective
into all stages of the enforcement planning and decision-making, the Agency
intends to achieve additional public health and environmental protection results,
deterrence, and efficiency which could not be achieved through the use of
traditional single-media approaches alone.
EPA's commitment to cross-program/multi-media enforcement is one
reflection of its greater emphasis on better integrating consideration of health and
ecological risks into inspection targeting and case selection. While these concepts
apply in single-medium cases as well, cross-program/multi-media enforcement is
intended to result in comprehensive identification and remediation of problems at
a facility. Cross-program/multi-media inspections also have the potential of better
focusing senior management in the regulated community on the broad range of
environmental compliance issues, better ensuring that they do not overlook
significant environmental problems.
Throughout its Regional Offices, EPA is experimenting with different
techniques for inspection targeting, case screening, and case coordination. The
Agency is carefully building the structures necessary to support cross-
program/multi-media enforcement, since frankly, this type of enforcement does not
come naturally to EPA's structure and culture. This building process, initially
viewed by many in the Agency with skepticism and concern, is now being
implemented with excitement and enthusiasm.
An example of how this approach is working nationally is the series of cross-
media enforcement actions, both civil judicial and and administrative, filed against
major sources of lead emissions. The actions were filed by EPA and the Department
of Justice on July 31,1991, against violators located in each of EPA's ten regions. EPA
coordinated across its compliance programs to file enforcement actions under six
environmental statutes to reduce a specific pollutant -- lead. Along with pollution
prevention, education, and training, enforcement was a major component of the
agency-wide strategy to significantly reduce lead exposures to the public - -
particularly the risk of high blood lead levels in children ~ and to the environment.
The Department of Justice filed twenty-four civil cases in Federal courts across the
country, and EPA initiated direct administrative enforcement actions against
fourteen facilities, assessing some $14 million in total penalties. The cases in the
initiative were filed under six different statutes: the Resource Conservation and
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1 FY1991 Enforcement Accomplishments Report
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Recovery Act (RCRA); the Comprehensive Environmental .Response,
Compensation, and Liability Act (CERCLA); the Clean Water Act (CWA); the Safe
Drinking Water Act (SDWA); the Clean Air Act (CAA); and the Emergency Planning
and Community Right-to-Know Act (EPCRA),
EPA has also focused geographically on the Chesapeake Bay and the Great
Lakes as cross-program/multi-media initiatives. In FY 1992, EPA plans to add
another pollutant-specific initiative, and industry-specific initiative, a company-.
specific initiative, other regional geographic-based initiatives, and an international
initiative focused on the Mexican border.
In order to have the capability to look at patterns of noricompliance within or
across environmental programs, EPA needs accurate, readily accessible data on
source compliance status. These data will.help targeting of specific geographic,
industry, company, facility, or pollutant-specific sources based on compliance status,
compliance history, and/or environmental risk profile. To provide that capability,
EPA has developed an automated capability which can link information from its
various mainframe computer systems. , This new capability, known as Integrated
Data for Enforcement Analysis (IDEA) utilizes EPA's powerful mainframe computer
capacity to allow EPA enforcement personnel to engage in an interactive analysis of
compliance and enforcement data that is contained in the various media program
data systems. This capability also provides access to corporate identification
information allowing users to structure their analyses based on corporate parentage
or structure, industrial sector, pollutants, and/or geographic sector. ,c
EPA is also developing cross-program/.multi-media training courses- for its
compliance inspectors and its technical and legal staffs; these courses will ;be:
available to State environmental program and legal personnel. , Courses will be
offered under the umbrella of the National Enforcement Training Institute (NETI),
created to provide training to EPA, State, and local personnel involved in
environmental enforcement. State representatives serve on the Institute's
Advisory Council and participate actively in curriculum development and program
design.
The emphasis on cross-program/multi-media enforcement raises questions
about EPA's working relationships with the States. In response to requests from
States for clarification, on August 9, 1991, EPA issued a proposed Addendum on
Multi-Media Enforcement to the Policy Framework on State/EPA Enforcement
Agreements. As the proposed addendum makes clear, a cross-program/multi-
media approach is not intended to change the current structure under which State
and local governments have the primary enforcement responsibility, nor current
ground rules for determining which level of government should assume the lead
for enforcement response. However, implementation of a cross-program/multi-
media approach will require even closer Federal/State working relationships, EPA
is committed to working cooperatively with States to forge those relationships. \
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FY1991 Enforcement Accomplishments Report
m)
III. Envkonmental Enforcement Activity
Federal Judicial and Administrative Enforcement Activity
Judicial Enforcement Civil
During FY 1991, the EPA made a concerted effort to approach its enforcement activity
with a cross-program/multi-media perspective, and where appropriate, to bring cross-
program/mulH-media and multi-facility enforcement actions against violating facilities to
bring about comprehensive solutions to complex interrelated environmental problems.
With this cross-program/multi-media perspective, the Agency intends to achieve additional
public health and environmental protection results, deterrence, and efficiency which might
not be achieved through use of traditional single-media approaches alonel
An Agency-wide workgroup analyzed operational modifications that would facilitate
greater use of cross-program/multi-media approaches, and recommended modifications to
the counting methodology that had been used in the past to track and account for civil
referral activity. These adjustments are, intended to more accurately reflect the greater
magnitude of cross-program/multi-media actions and the .variety of violations being
addressed, and to remove any accounting-related disincentives to bringing these cases.
j *
Through this transition period, EPA maintained an aggressive civil judicial
enforcement program by referring 393 cases to the Department of Justice (DOJ), While the
393 cases are the highest total ever referred in one year, EPA has not claimed a record year
since under the old counting method, the Agency would have had 366 referrals, slightly
below-the previous referral record of 375 in FY 1990. (With the new counting! approach/we
estimate that the 375 civil cases referred to DOJ in FY 1990 would have] totaled 406).
EPA Civil Referrals to DOJ
FY 1977 to FY 1991
400 T
350 . .
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89 FY90 FY91
TOXICS/
PESTICIDES
Q WATER
DRCRA
Q SUPERFUND
DAIR
t
Illustration 1
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FY1991 Enforcement Accomplishments Report
Since FY 1989,1,132 civil judicial cases have been referred to DOJ, nearly thirty percent
of all civil cases referred in the 20 years 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 1991 with 164 civil judicial cases referred to DOJ (a number not
influenced by the new counting procedure).
Monitoring Judicial Consent Decrees
At the end of FY 1991, the Agency reported that 686 judicial consent decrees were in
place and being monitored to ensure compliance with the provisions of the decrees, an .
increase of 40 over last year and three and a half times the number of six 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 actions against, more than 100 violating
facilities during the year including the referral of 14 cases to DOJ for enforcement of the
consent decree with the court.
Judicial Enforcement - Criminal
In FY 1991, EPA's criminal program established records for most categories of criminal
enforcement activity. New records included referring 81 cases to DOJ (the previous record
was 65 in FY 1990), bringing charges against 104 defendants (the previous record was 100 in FY
1990), and the number of months of jail time to which defendants were sentenced with 963
months (the previous record was 745 months in FY 1990). Forty-eight criminal cases
concluded during the year, and 82 defendants were convicted. In addition, 28 of the
defendants convicted were sentenced to incarceration.
EPA Criminal Enforcement Program
FY 1982 to FY 1991
FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89 FY90 FY91
E3 Referrals to DOJ H Cases successfully 0 Defendants Defendants
prosecuted charged convicted
Illustration 2
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FY1991 Enforcement Accomplishments Report
FY 1991 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
previous illustration indicates, case referrals and the number of defendants charged and
convicted have increased since 1982. Evidence of the strong recent growth of the criminal
program is that 53% of all referrals, 65% of all months sentenced, and 68% of all penalties
assessed have occurred during the last three years.
Imposition of incarceration and probation is an extremely effective part of the criminal
program, and serves as a strong deterrent. Probation is very effective 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 the prison
sentence that was suspended in lieu of probation. Since 1982, individuals have received
prison sentences for committing environmental crimes totaling 261 years, and 785 years of
probation have been imposed.
Administrative Enforcement
EPA posted its second highest annual total for administrative enforcement activities
in FY 1991 with 3,925 actions. The Agency record of 4,136 was set in FY 1989. The totals for
FY 1991 demonstrate that although judicial actions (both civil and criminal) are crucial to
EPA's overall success, and are 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 1991 figures indicate that EPA programs continue to make widespread use of these
effective and less resource intensive tools.
EPA Administrative Actions: FY 1977 to FY 1991
FY77 FY78 FY79 FY8Q FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89 FY90 FY91
TSCA
RCRA
EPCRA Q FIFRA D CERCLA
CWA/SDWA Q] CAA
Illustration 3
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FY1991 Enforcement Accomplishments Report
Federal Penalty Assessments '
Delaying or foregoing capital investment in pollution controls, as well as failure to'
provide resources for annual pollution control operating expenditures, can allow
undeserved economic benefits to accrue to a regulated entity. As part of the effort to deter
noncompliance, BPA'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),
; In FY 1991, $73.1' million in civil penalties were assessed, an all-time record ($41.2
million in civil judicial penalties and $31.9 million in administrative penalties, both all-time
records). This represents a 21 percent increase over FY 1990 and in FY 1991 alone, 23 percent
of all civil penalty dollars in EPA's history were obtained. Overall, 53% of all civil penalty
dollars in EPA's history were assessed in the last three years. Since its creation, EPA has
imposed $321.3 million in civil penalties ($209 million with civil judicial actions and $113
million'with administrative actions). '
Criminal fines totaled $14.1 million in FY 1991 (before deducting suspended
sentences), which represents a two and a half fold increase from FY 1990 and is the highest
amount ever assessed by EPA for criminal cases. In the five years EPA's criminal
enforcement program has been tracking penalty data, $43.8 million in criminal fines have
been imposed before deduction of suspended sentences. One third of all criminal fines in
EPA's history, were assessed in FY 1991.
' Overall, in the last three years, EPA has assessed 55% of all civil penalties and criminal
fines combined (see chart below).
Total Criminal Fines and Civil Penalties Assessed
250,000,000 j.
200,000,000 ..
150,000,000
100,000,000 ..
50,000,000 - -
0
$200.7 million
$166.1 million
FY 1972-1988
FY 1989-1991
In FY 1991, $9.7 million in Clean Air Act civil penalties were assessed ($7.3 million for
stationary source violations and $2.3 million for mobile source violations); $26.6 million in
Clean Water Act penalties were assessed ($23.1 million in civil judicial penalties and $3.5
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FY1991 Enforcement Accomplishments Report
(j8p
*c., ._*$.
*[ (Ntd**1
million in administrative penalties); over $10.6 million in Toxic Substances Control Act
administrative penalties were assessed; and $17.7 million in Resource Conservation and
Recovery Act penalties were assessed ($10.0 million in civil judicial penalties and $7.6
million in administrative penalties). The Federal Insecticide, Fungicide, and Rodenticide Act
and Safe Drinking Water Act programs are largely delegated to the States; however, EPA
assessed over $932,000 and $2.0 million respectively, under these statutes. The Toxic Release
Inventory program assessed nearly $3.9 million. Over $889,700 in Emergency Planning and
Community Right-to-Know Act (EPCRA) §3Q2-§312 and CERCLA §104 penalties were
assessed. The Wetlands program assessed $504,200 and the Marine and Estuarine Protection
program assessed $264,000. The FY 1991 total includes a civil judicial penalty for $220,000
assessed under the Lead Control Contamination Act (a 1988 amendment to the Safe Drinking
Water Act). This penalty reflects the first case brought by the Agency under this Act
Federal Judicial and Administrative
Penalties Assessed FY 1977 to FY 1991
80,000,000
FYT7 FV78 FY7S JY80 FWJ FY«2 FY83 FW* TOS FYM FVi7 FYM FYW FY90 FY91
I Administrative Qjudicial
Illustration 4
For further information on EPA penalty practices, see the National Penalty Report in the
Appendix.
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 1991, the States referred 544 civil cases to State Attorneys
General and issued 9,607 administrative actions to violating facilities.
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FY1991 Enforcement Accomplishments Report
State Judicial Referrals; FY 1985 to FY 1991
FY91
FY90
FY89
FY88
FY87
FY86
FY85
1^ p=
100 200
300
400
500 600
700
800
900
1000
[RCRA ClAIR m WATER
State Administrative Actions: FY 1985 to FY 1991
14000
Illustrations 5&6
EPA Contractor Listing
In FY 1991, a near record number of facilities were added to EPA's List of Violating
Facilities (List) under the authorities provided to EPA by Clean Air Act § 306 and Clean Water
Act § 508, to bar facilities that violate clean air or clean water standards from receiving
Federally funded contracts, grants or loans. Federal agencies are prohibited by statutory
mandate from entering into contracts, grants or loans (including subcontracts, subgrants or
sibilance) to be performed at facilities owned or operated by persons who are convicted of
violating air standards under CAA §ll3(c) or water standards under CWA §309(c) (and
involved in the violations), effective automatically on the date of the conviction. Facilities
which are mandatorily listed remain on the List until EPA determines that they have
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FY1991 Enforcement Accomplishments Report
corrected the conditions giving rise to the violations. Nineteen facilities were listed in FY
1991 based on criminal convictions one short of the record set in FY 1990. Ten facilities
were removed from the List in FY 1991. Since FY 1986, 74 facilities have been placed on the
mandatory list. Fifty-two facilities remained on the List as of the end of FY 1991.
Facilities with records of civil violations may also be listed, at the discretion of the
Assistant Administrator for Enforcement, 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 discretionary listing if there are continuing or recurring violations
of the CAA or CWA after one or more enforcement actions have been brought against the
facility by EPA or a state enforcement agency. Facilities recommended for discretionary listing
have a right to an informal administrative proceeding. Facilities listed under discretionary
listing are automatically removed from the List 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 for Enforcement
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. In FY 1991, BPA proposed to list one
facility under its discretionary listing authority. Seven pending discretionary listing actions
were withdrawn by EPA after consent agreements were entered into in the underlying civil
enforcement cases.
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FY1991 Enforcement Accomplishments Report
IV. Major Enforcement Litigation
and Key Legal Precedents -
Protecting Public Health and
the Environment through
Enforcement
This chapter provides highlights of major
FY 1991 litigation which support media
enforcement priorities and demonstrate
innovative approaches in the enforcement
process, FY 1991 was an exciting and challenging
year for EPA's enforcement effort. The Agency
began implementation of a new approach,
described in the Enforcement Four-Year Strategic
Plan and the Enforcement in the 1990's Project, by
which Federal and State governments could
better promote compliance with, and effective
deterrence against violations of, environmental
laws. Cases are listed alphabetically and not in
order of importance
Clean Air Act Enforcement
In FY 1991, this program's activities
centered upon implementation of the Clean Air
Act Amendments of 1990. 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
(NAAQS) for the criteria pollutants involved
violations of regulations for volatile organic
compounds (VOCs), sulfur dioxide and
particulates.
Stationary Source Program
U.S. v. American CyflnaiUJd' The largest penalty
to date for violations of §165 of the Clean Air Act
and the regulations regarding Prevention of
Significant Deterioration (PSD) was obtained
from American Cyanamid on September 5, 1991.
The company agreed to pay a civil penalty of
$625,000 for construction of a facility in the Pearl
River, New York, without first obtaining a
necessary PSD permit and without giving the
state or EPA the notification of construction
required by the New Source Performance
Standards. EPA's enforcement efforts forced
American Cyanamid to halt construction
immediately on the facility until it obtained the
proper PSD permit, which the company received
in May 1990.
U.S. v.
Fructose
V AL' Region IV
negotiated a judicial consent decree with this
facility for violations of the federal New Source
Performance Standards under the Clean Air Act.
EPA charged the facility with failure to timely
conduct certain testing and to notify EPA of
activities required by those standards. Under the
consent decree, the company agreed to pay a civil
penalty of $145,000.
Bakery Enforcement Initiative
Large, commercial bakeries are significant
sources of VOC emissions (which come primarily
from the biological action of yeast), Region H
issued Notices of Violations citing VOC
violations at six major baking plants, including
such industry giants as Nabisco Biscuit; SB
Thomas, Inc. and Continental Baking. Other
bakeries cited include Harrison Baking,
Marathon Bakery, and Automatic Rolls.
Continental Baking was the subject of a FY 1990
pre-referral negotiation (PRN), referral and in
FY 1991 reached a settlement with EPA pursuant
to which it 'will pay a civil penalty of over
$328,000. Continental has also spent over
$500,000 on an afterburner to control its VOC
emissions.
U.S. v. Bethlehem Steel. (N.D. IN*. In May 1991,
the United States settled its action for
Bethlehem Steel's State Implementation Plan
(SIP) violations under the Clean Air Act at two
coke oven batteries known to be leaking
carcinogenic emissions into the atmosphere from
more than ten percent of their doors, Bethlehem
of Burns Harbor, IN, had also violated a site
specific SIP provision which prohibited visible
emissions of more than 20 percent opacity on a two
hour average basis from a battery combustion
stack. The consent decree requires Bethlehem to
achieve and maintain compliance, improve
operation and maintenance practices, self-monitor
emissions for the life of the consent decree, and
pay a penalty of $600,000.
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FY1991 Enforcement Accomplishments Report
CFC Importer Cases
In FY 1991, EPA settled five cases against
companies that imported chlorofluorocarbons
(CFCs) without first obtaining required
consumption allowances. Such imports violate
the Rule to Protect the Stratospheric Ozone, 40
C.F.R, Part 82, which limits the amount of
identified stratospheric ozone-depleting
chemicals (ODCs) that can either be
manufactured in the United States or imported
from other countries. By limiting the amount of
consumption allowances that are available in a
given year, the United States limits the amount
of ODCs that can enter the country in that year,
and fulfills its international commitment not to
use more than its share of these chemicals as the
world phases out their production. Companies
found to have imported ODCs without
allowances can ensure that the United States
remains within its ceiling by purchasing
unexpended allowances after the fact, by
exporting ODCs to countries that are below their
ceilings, or by transforming the ODCs into ozone-
benign substances.
U.S. v. Coors Brewing Company; An
administrative order under §167 of the Clean Air
Act was issued to Coors Brewing, Elkton, VA, on
April 25, 1991, requiring cessation of construction
of a major source without a valid permit. Coors
obtained a prevention of significant deterioration
(PSD) permit from EPA on March 19,1981, for the
construction of a 10 million barrel per year
brewery facility in the Elkton area of
Rockingham County, Virginia. Coors did not
commence construction of the brewery during the
required time period, so the company requested
and obtained extensions to the permit. Each of
these extensions was permissible because every
extension required Coors to perform a new best
available control technology (BACT) and
modeling analysis prior to the start of any
construction related to the brewery. The company
has not yet constructed anything that was
provided for in the permit. Subject to certain
conditions, the latest extension gives Coors until
April 15, 1992, to initiate construction of the
brewery.
Subsequently, Virginia was delegated authority
to administer the PSD program on behalf of EPA.
Coors violated the PSD regulations when it
constructed, without receiving an appropriate
permit modification from the Commonwealth,
one of two planned natural gas-fired (NG) boilers,
not contemplated by the original PSD permit, to
serve as back-up units for the coal-fired boilers
that were permitted. In addition, a six-inch NG
line, metering, and pressure reducing station;
outside overhead pipe gallery; and power house
building for the NG boilers have also been
constructed at the planned Coors brewery site. The
continued construction of the facility without a
valid PSD permit would violate §165(a) of the
Clean Air Act, PL 101-549,42 U.S.C.' 7475(a), and
the Commonwealth's State Implementation Plan.
U.S. v. Ethyl Corporation (M.D. Louisiana]: An
eight-year old, heavily contested, precedent-
setting Clean Air Act case concerning violations of
the federal regulations limiting emissions of
vinyl chloride into the air, was settled on March
25,1991. A civil enforcement case was filed in the
U.S. District Court for the Middle District of
Louisiana in February 1983, against Ethyl
Corporation regarding its plastics plant in Baton
Rouge, Louisiana. The complaint alleged that
Ethyl discharged vinyl chloride to the
atmosphere on at least 81 occasions, between 1976
and 1981. Ethyl moved to dismiss the complaint
on the grounds that the vinyl chloride regulations
established work practices, not emission
standards, with the result that the regulations
would not be valid. The District Court Judge
accepted Ethyl's argument and dismissed the
complaint. EPA appealed this ruling and the
U.S. Court of Appeals for the Fifth Circuit
reversed the decision, holding that the
regulations were emissions standards, and
remanded the case to District Court for trial.
Ethyl filed a Petition for a Writ of Certiorari
with the U.S. Supreme Court on August 30, 1985,
but the Supreme Court declined to hear the case.
After extensive discovery proceedings and then
settlement meetings in which the District Court
Judge participated, EPA and Ethyl agreed on a
resolution of the case. A consent decree was filed
on March 25, 1991, ordering Ethyl to pay a civil
penalty of $320,000.
U.S. v. Formosa Plastics (M.D. Louisiana): A six-
year old Clean Air Act case against Formosa
Plastics Corp., Baton Rouge, Louisiana, in the
U.S. District Court for the Middle District of
Louisiana was settled on November 5, 1990. The
Formosa Plastics case was filed in January 1984,
alleging violations of the federal Clean Air Act
regulations limiting emissions of vinyl chloride
into 'the air from Formosa Plastics' ethylene
dichloride and vinyl chloride manufacturing
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F7 7997 Enforcement Accomplishments Report
facility. In mid-1985, a District Court Judge in the
Middle District of Louisiana had placed a stay on
proceedings in all cases alleging violations of the
Clean Air Act requirements regarding vinyl
chloride emissions. The Judge had ruled in a
similar case against Ethyl Corporation that the
vinyl chloride regulations established work
practices, not emissions standards, and so were not
valid. The U.S. Court of Appeals for the Fifth
Circuit reversed the District Court Judge in the
Ethyl case, and the U.S. Supreme Court was
asked to consider the case. The Supreme Court
declined to consider the Ethyl case, and the Fifth
Circuit ruling was final. Subsequently, the stay
was lifted on the Formosa Plastics case and
negotiations resumed, A consent decree for
penalties only was entered on November 5, 1990,
and a civil penalty of $65,000 was paid on
November 8,1990, which closed the case.
U.S. v. Gates Energy Products (W.D. Mo.): As part
of the National Multi-Media Lead Enforcement
Initiative, a complaint and consent decree were
filed simultaneously on July 31,1991, under which
Gates agreed to pay $200,000 for New Source
Performance Standards (NSPS) violations and
violations of the SIP requirement to obtain
operating permits at Gates' lead-acid battery
manufacturing plant in Warrensburg, Missouri and
four other facilities. Gates further consented to
three supplemental environmental projects. The
first requires a multi-media environmental
compliance and management audit of the Missouri
and Florida plants. The second is a pollution
prevention project reducing the use of 1,1,1,
trichloroethane (a solvent and degreaser used at
the plant). The third is a pollution reduction
project designed to minimize lead oxide waste,
U.S. v. General DynamicsJMJ3. Texas): General
Dynamics (GD) is the operator of Air Force Plant
No. 4 in Fort Worth, Texas, the only facility at
which the F16 fighter plane is made. A case
filed in 1987 alleged that GD violated the EPA-
approved Texas air pollution standards governing
emissions to the air of volatile organic compounds
at three coating operations at the facility. In a
landmark decision in FY 1990, a court for the first
time ruled that the contractor at a Government
Owned, Contractor Operated (GOCO) facility is
considered the operator as a matter of law. This
held significance for cases involving GOCO
facilities where the contractor claimed that it is
the alter ego of the United States government,
exercising no independent judgment or authority.
An Agreed Order was issued by the U.S. District
Court for the Northern District of Texas on
January 2, 1991, granting EPA's request for
summary judgment on whether GD had violated
the Texas standards. The court further ruled that
GD must come into compliance with the
applicable standards within three years or cease
operations. The order also included a penalty
amount of $350^000, that was offset by CD's
claims against the Ai r Force.
U.S. v. General Motors Corp., (N.D, QHfc A
consent decree was entered on April 11, 1991,
resolving the Government's action under the
Clean Air Act (CAA) against General Motors
Corp. (GM) for violations at its Lordstown, Ohio,
automobile assembly plant. As a result, GM
installed a coating system that reduces volatile
organic compounds (VOC) from its paint shop
operations from approximately 3,400 tons per year
to 750-800 tons per year. GM paid a civil penalty
of $1,539,326.
George Fox College. (Newberg, OR) and Elliott-
Jorhimsen Construction: The complaint in this
case alleged that when the college renovated the
college library, asbestos was not identified and
work practice standards were not followed,
resulting in asbestos contamination throughout
much of the library. Subsequent to EPA and
Oregon Department of Environmental
Conservation inspection and identification of
asbestos, the college decontaminated the library
books and other items within the library. This is
the first asbestos case EPA has brought in Oregon
in many years, and resulted in a penalty of
$131,250.
U.S. v. JM.. Huber Corp; Pursuant to a settlement
with both the United States and the State of
Maine, J. M. Huber Corp, paid a $328,000 civil
penalty and installed costly control equipment to
ensure future compliance with the Clean Air Act.
The federal and state governments had
concurrently filed actions against the company for
excess particulate matter emissions from its
waferboard facility in Easton, Maine. From July
1988 to December 1990, J.M. Huber Corp.'s
particulate emissions exceeded the standard in
Maine's federally-approved state implemen-
tation plan. As part of the settlement, the
company agreed to comply with a particulate
emission limit which is even stricter than the
regulatory limit. The consent decree was entered
by the U.S. District Court for the District of
Maine in July 1991.
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FY1991 Enforcement Accomplishments Report
Ketchikan Pulp Corporation: Region X issued a
compliance order to Ketchikan Pulp Corporation
(KPC) during FY 1991 for failure to install sulfur
dioxide emission control equipment on an oil-fired
power boiler. It is estimated that KPC's failure
to .install this equipment resulted in an extra
burden of approximately 910 tons per year to the
Ketchikan, Alaska, airshed. KPC shut down the
boiler in response to the order.
U.S. v. MPM Contractors, fog, (D. Kan.fc In this
case involving violations of the asbestos
regulations, the court provided a clear statement
that the government may establish violations of
the asbestos .work practice standards without
proving visible emissions of asbestos. The U.S.
District Court for the District of Kansas ruled on
October 2, 1990, that visible emissions of asbestos
are not an element of proof in establishing
violations of the asbestos work practice standards
under §112 of the Clean Air Act. The court held
that the defendant is liable for penalties for
violations of the asbestos regulations and the
Clean Air Act, and granted the United States
motion for summary judgment on liability. The
case was originally filed on August 22, 1989, for
violations of the asbestos regulations, including
violations of the work practice standards for
asbestos at three facilities where asbestos
removal was conducted.
On April 18, 1991 the court also issued a
preliminary injunction against MPM, its owner,
Michael McGill, and Asbestos Removal Company,
Inc., a company which had been purchased by
McGill, prohibiting McGill from dispersing any
assets pending assessment of a penalty for.the
asbestos violations.
U.S. v. Nevada Power Company EPA signed a
consent decree with Nevada Power on August 20,
1991, requiring the company to pay a civil
penalty of $400,000 for by-passing the pollution
control equipment at its Reid-Gardner fossil-fuel
fired electrical generating station in Moapa,
Nevada, violating opacity and partkulate
matter standards, failing to properly operate
continuous emission monitors ("CEM") and failing
to record and report CEM data in violation of §111
of the Act and the NSPS for opacity and
particulate matter.
The case was generated as part of a Region IX
initiative targeting "good pollution control
practices" and related violations at electric
power generating stations. This settlement also
authorizes EPA to determine compliance with
particulate and opacity standards on the basis of
data generated by the CEM.
U.S. v. Hprthern Aroostook Regional Incinerator
Facility, et. al.: The three Maine municipalities ,
(Madawaska, Fort Kent and Frenchville), which
own the Northern Aroostook Regional Incinerator
Facility located in Frenchville, Maine, agreed to
pay a civil penalty of $125,000 for particulate
violations at the incinerator. The defendants had
violated the New Source Performance Standard
for Incinerators, 40 C.F.R. Part 60, Subpart E, and
the applicable particulate emissions standard in
the Maine SIP. The defendants have agreed to
shut down the incinerator and switch to a new
solid waste disposal program involving a
combination of recycling and landfill disposal.
US. v. Sjflnson Wrecking Co. and Williams
Richardson Co:. (E.D. MI): On June 28, 1991, Judge
George Woods, Eastern District, Michigan,
entered an order in U.S. v. Stanson Wrecking Co.
and Williams and Richardson Co. requiring the
defendants to pay a civil penalty of $60,000. The
order requires the defendants to comply with the
asbestos NESHAP regulations under the Clean
Air Act and contains specific requirements with
regard to notice, inspector training, and asbestos
abatement worker training. Fines of $20,000, were
assessed against each defendant for NESHAP
violations. Additionally, Stanson, of Detroit,
was assessed $10,000 for failing to respond to a
§114 information request and $10,000 for violating
an administrative order issued by EPA under §113
of the CAA.
U.S. v. State of Hawaii, Department of
Transportation: Illustrating the unusual locations
with the potential for asbestos-related air
pollution, EPA obtained a penalty of $20,000 from
the State of Hawaii, Department of
Transportation (HDOT) for violations of the
asbestos NESHAP, during a demolition of
asbestos-lined concrete planters at the Honolulu
International Airport. The complaint alleged
that HDOT violated the NESHAP by its failure
to notify EPA of the demolition, its failure to
remove the asbestos prior to demolition, its
failure to keep the asbestos wet during demolition
and its failure to properly store the asbestos
debris. The consent decree was signed by EPA on
August 22, 1991.
U.S. v. Unitank Terminal Service, et al; A consent
decree entered on April 30, 1991 resolved -a
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FY1991 Enforcement Accomplishments Report
k \
mj
Of*
significant Clean Air Act civil action' against
Unitahk Terminal Service, Unitank, Inc., and DRT
Industries, Inc. for past violations of the
NESHAP for equipment leaks of benzene at a bulk
liquid storage terminal (petroleum and chemical
products) in Philadelphia, PA. After prevailing
on certain issues via summary judgment and
obtaining a precedent-setting opinion, the U.S.
obtained the defendants' agreement to pay civil
penalties in the amount of $135,000, despite the
fact that the defendants had previously sold the
facility on March 7,1990.
U.S. v. USX Corporation (Clairton, PA) (W,p.
PAJ:r A Clean Air Act civil complaint against
USX Corporation for violations of the CAA and
the' Pennsylvania/Allegheny County State
Implementation Plan at various sources (coke oven
battery, bleeder stacks, and quench towers) at
USX's coke plant in Clairton, PA, was filed on
February 25, 1991, in the U.S. District Court for
Western Pennsylvania. The violations involve
the venting of raw coke oven gas at the bleeder
stacks and the use of contaminated water to cool
hot coke at the quench towers. The violations are
alleged to have occurred on several occasions since
1987. The complaint seeks to have USX install
new equipment- and take other steps to prevent
any additional violations and payment of a civil
penalty of $25,000 for each violation.
ILSrv. Wards Cove Packing Company; Wards
Cove paid a civil penalty of $60,000 for
violations of the asbestos NESHAP during the
renovation of two retorts (sterilization vessels) at
the company's packing plant at Excursion Inlet,
Alaska. Signed by EPA on May 20, 1991, the
decree 'further provides that defendants will
comply with the asbestos NESHAP in the future
and will institute an asbestos control program to
ensure such compliance.
U.S. V. Weyerhaeuser Company. Weyerhaeuser
agreed to pay a penalty of $500,000 for failing to
comply with PM and NOx emission limitations in
a minor source permit issued by EPA.
Weyerhaeuser also agreed to install additional
control equipment on their Marshfield, Wisconsin,
facility and undergo Prevention of Significant
Deterioration review if it ever again exceeds the
permit emission restrictions.
U.S. v. Wick ConstructiQnP et al.f: In this case the
Port of Seattle and its contractors (Gordon Brown,
Ballard 'Construction and Toro Construction) paid
$80,000 for asbestos NESHAP violations during
renovations at Sea-Tac Airport. In addition to
payment of the civil penalty, the consent decree in
this case requires the Port of Seattle and Wick to
implement an extensive internal asbestos control
program which includes inspection and sampling
of all facilities being renovated or demolished,
designation of asbestos program managers and site
coordinators, and complete specified asbestos
training.
U.S. v. Zjimmer Paper Products,, Inc. JS.D. IN): The
defendant agreed to pay a $250,000 civil penalty
and to comply with the Indiana State
Implementation Plan. To reduce volatile organic
compound emissions from its paper coating line,
Zimmer, of Indianapolis, IN, must either use low
solvent technology, install an incinerator and
capture system, or cease operation of the
violating line by July 1992,15 months after entry
of the consent decree.
U.S. an.d Commonwealth of PA. v. USX
Corporation (Fairless Hills, PA): A consent decree
resolving a significant Clean Air Act civil action
against USX Corporation (USS Division) for
violations of the Pennsylvania State
Implementation Plan at various sources (sinter
plant, open hearth furnaces, and blast furnaces)
at USX's steel plant in Fairless Hills, PA, was
successfully completed during FY 1991. The terms
of the settlement include the payment by USX of
civil penalties in the amount of $700,000, and
agreement to provisions requiring compliance
with all applicable CAA requirements upon any
future resumption of operation of the previously
operating noncomplying sources. Operation of the
relevant sources was suspended by USX on January
31, 1991. The consent decree was executed during
FY 1991 and was lodged on October 4,1991.
U.S. and State of Maryland v. Bethlehem Steel
Corporqflon (D. MD): A Clean Air Act civil
complaint against Bethlehem Steel Corporation
for violations of the Maryland SIP at various
emission points {charging operations, door areas,
offtake piping, combustion stacks, and pushing
and hot coke transfer operations) at three coke
oven batteries at Bethlehem Steel's plant in
Sparrows Point, MD, was filed on April 25, 1991,
in the U.S. District Court, The violations involve
excess emission of paniculate matter. The
complaint seeks a court order to direct Bethlehem
Steel to comply with the CAA and payment of a
civil penalty.
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FY1991 Enforcement Accomplishments Report
State Air Enforcement Actions
Beginning with the FY 1991 Accomplishments
Report, EPA will be including significant state
enforcement actions submitted by the EPA
Regional offices. We anticipate that State
actions will play a greater role in future reports.
American Signature/Foote Pavies. Lincoln, NE
(CAA): A State consent decree was entered on
October 15, 1990, for the defendant's failure to
obtain a Prevention of Significant Deterioration
permit as required by the Nebraska
Implementation Plan. The defendant paid
$80,000 penalty and was required to obtained a
permit to comply with the SIP.
Gates Energy Froducfe, Inc.,Warrensburg. MQ A
State consent decree was entered on July 5, 1991,
for the defendant's failure to obtain new source
review permits under the Missouri
implementation plan. The Company paid a
$20,000 penalty for the violations which was the
statutory maximum for the violation under the
facts of the case. The source is a lead-acid
battery manufacturing plant. This case is a
companion case the Region's Clean Air Act
judicial case which was filed as part of the
Agency's lead initiative ( see page 4-3).
Slay Bulk Terminalsr Inc.. St. Louis, MQ A State
consent decree was entered on January 31, 1991 for
violation of the emission standards for benzene
under the EPA's National Emission Standards for
Hazardous Air Pollutants, The Company agreed
to pay a $28,000 penalty and was required to meet
a schedule to comply with the emission
standards,
State of Texas v. Dynagen. Inc.: Dynagen, Inc., a
subsidiary of General Tire Company, operates a
rubber plant located in Odessa, Texas. The Texas
Attorney General's office filed suit against
Dynagen, Inc. in December 1989, on behalf of the
Texas Air Control Board (TACB). The TACB had
reported more than 70 air emission violations
including styrene and. butadiene, known
carcinogens, against the company over the
preceding two-year period after receiving
numerous complaints from local residents. The
case was settled in September 1991, with the
company agreeing to a $1.4 million cash
settlement. In addition to the cash settlement,
the company agreed to spend more than $12
million to install state-of-the-art equipment to
rid the plant of faulty air emissions. This was
the largest settlement ever assessed under the
Texas Clean Air Act, making it a landmark,
settlement,
State of Texas, y. International Paper- Corp;
During 1987, International Paper Corporation
(IPC) at Nacogdoches, Texas, started production
of wafer board with a permit from the Texas Air
Control Board (TACB) that allowed 280 tons per
year (TPY) emissions of volatile organic
compounds (VOCs) from the resins used to .bond
the wafer board together. The VOCs were
methylene diphenylisocyanate. Via stack tests,
the TACB determined that the actual emission
rate was approximately 1,000 TPY, making IPC
subject to the Prevention of Significant
Deterioration (PSD) standards, requiring Best
Available Control Technology (BACT) for control
equipment. IPC entered into an order with TACB
in 1988; however, subsequently it was determined
that BACT (a wet electrostatic precipitator on
the veneer dryers) was not in use at the facility to
control VOCs. On March 6, 1991, EPA staff met
with the company to discuss their violations and ,
urged them to resolve the situation with TACB.
Subsequently, IPC entered into negotiations with
TACB and agreed to use the BACT and pay a
$350,000 administrative penalty. EPA reviewed
and concurred with TACB's enforcement penalty.-
Federal Facilities - Air
FederaL Facilities Asbestos Order: Region II
issued a compliance order to the U.S. General
Services Administration for asbestos NESHAPs;
violations in connection with- renovation-
operations at the federal office building in New
York City the second largest government office
building in the country. The order was issued in
response to a particular violation, but in deciding.
to issue the order Region II considered a lengthy
history of similar violations at this building and
at other GSA-managed buildings. EPA had been
attempting to reach a settlement with GSA
concerning these violations at the time the new
violations were documented. The order applies to
all buildings owned or operated by GSA in Region
II. The violations which gave rise to the order.
involve the removal of ceiling tiles which were
covered with asbestos dust (from asbestos-
insulation which had fallen onto them from
above). Region II determined that such asbestos-
covered tiles were subject to the requirements of
the revised asbestos NESHAPs rule. This
interpretation was confirmed by EPA
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FY1991 Enforcement Accomplishments Report
tso
Headquarters, In addition to GSA, EPA also
issued orders to its contractors performing the
renovation work. Although GSA disagrees with
EPA's interpretation and has elevated the
matter, it is cooperating in establishing a more
consistent approach to asbestos control at its
facilities, and states that it has suspended work
involving asbestos at its facilities-
General Services Administration *CPAE On May
6, 1991, EPA issued a Prevention of Significant
Deterioration (PSD) determination and New
Source Performance Standards (MSPS)
applicability determinations to the General
Services Administration (GSA), thereby removing
the principal barrier to permit issuance for
renovations to coal-fired boilers at the GSA
Central and West Heating Plants in Washington,
DC Concurrent with its PSD/NSPS
determinations, EPA drafted a proposed long-
term Federal Facilities Compliance Agreement
for the two heating plants. The Agreement was
signed by GSA and EPA.
In March, 1989, GSA notified EPA and the
District ot Columbia of its intent to renovate the
plants. In June, 1990, EPA, in reevaluating the
scope of the proposed projects, determined that
PSD and NSPS might be applicable, and advised
GSA of this. In July, 1990, EPA learned that work
had begun on West Unit # 4 in December, 1989,
without a permit. On July 20, 1990, EPA and the
District-of Columbia met with GSA, GSA was
advised to discontinue work on West # 4 until the
PSD/NSPS questions were resolved, EPA also
informed GSA that during its investigation of
PSD applicability, modeled violations of the
sulfur dioxide National Ambient Air Quality
Standards were found to occur during normal
operation of the heating plants. The violations
were caused by "downwash" effects resulting from
insufficient stack height.
GSA continued construction on West # 4 until
September 12, 1990, when the District of
Columbia issued a NOV requiring further
construction to be suspended. The NOV stated
that, District of Columbia permits "...cannot be
issued until it has been determined i( PSD or
NSPS applies..." An Interim Federal Facilities
Compliance Agreement with GSA was signed on
January 29, 1991 to provide conditions and
requirements for operation of West Heating plant
pending final determinations of PSD and MSPS
applicability.
ETA Region IV and PQE-Sayannah Rlvec On
June 21, 1991, the U.S. EPA, Region IV and the
U.S, Department of Energy, Savannah River Field
Office (DOE-SR), entered into the first interim
agreement between EPA and DOE, an Interim
Federal Facility Compliance Agreement and
negotiations for a Federal Facility Compliance
Agreement. This interim agreement was intended
to permit the parties to develop a final phase
plan to bring the DQE-SR into compliance and
maintain compliance with the Clean Air Act and
the National Emissions Standards for Hazardous
Air Pollutants (NESHAP). The interim
agreement required DOE-SR to immediately enter
into good faith negotiations on a Federal Facility
Compliance Agreement and to take certain
immediate corrective actions in order to bring
DOE-SR into full compliance with the NESHAP.
A final agreement is now in place.
Clean Air Act Enforcement
Mobile Source Program
Lead Phasedown
iLJLiJiuiient In this case, Dupant, the major
distributor of tetraethyl lead, was alleged to be
liable under the lead phasedown regulations as a
"refiner," since it participated in the blending of
exorbitant amounts of lead in excess of federal
limitations. EPA's determination of "refiner"
status was based on the fact that Dupont was a
major supplier of lead and Dupont oversaw the
blending operations of the lead. EPA issued a
Notice of Violation on November 24,1986 alleging
lead phasedown violations and citing Dupont as a
refiner along with Will Petroleum, Inc., A.
Ten-tome, Inc., and Triad, Inc. Since Dupont
denied responsibility and would not settle, a
complaint was filed in Federal District Court in
New Jersey on December 28, 1989 against E,I.
Dupont Nemours Company. The United States
pursued litigation of this case in order to make
the supplier of such a highly toxic substance
responsible for such a violation, This case was
settled for $875,000 pursuant to a court entered
Consent Decree filed on July 2,1991.
Western fteffetiflfc EPA alleged that during
numerous quarters Western Refining had exceeded
the lead standard, illegally banked and used
lead rights, and incorrectly reported usage of lead
to EPA. An excess of 4,640 million grams of lead
was introduced into the environment as a result of
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FY1991 Enforcement Accomplishments Report
these alleged violations. In addition to liability
being imposed against the corporate defendants,
liability was imposed against two individuals
that were discovered to be integrally involved in
the management and ownership of Western
Refining, This case was settled on April 24, 1991
for a total penalty of $300,000,
Fuel Volatility
*
Unocal Corporation^ On March 5, 1990, a
complaint was filed in District Court alleging
eight days of violations of gasoline volatility
regulations. During discovery in this case,
Unocal's counsel notified the United States that
he had determined that gasoline analysis reports
relied on by Unocal in presenting its defense had
been fraudulently altered to reflect complying
RVP test results. The United States and Unocal
subsequently entered into an Agreement in
Principal in September 1991, providing for
payment of a civil penalty of $80,000, certain
ongoing reporting requirements by Unocal, and
stipulated penalties for any future violations or
failure to comply with the reporting
requirements.
Aftermarket Catalytic Converter Policy Cases
Car Sound Exhaust System^ In a well publicized
action last year, EPA initiated enforcement
against Car Sound Exhaust Systems, a
manufacturer of aftermarket catalytic converters.
This case is significant because it expanded the
scope of EPA's aftermarket catalyst program
which had previously only focused on the
installers of these catalysts. This should further
insure the integrity of the program by addressing
the responsibilities of the catalyst manufacturers
as well. Car Sound Exhaust Systems was
manufacturing and selling catalytic converters
with insufficient internal catalyst material,
contrary to information it had previously
submitted to EPA, and was thus in violation of the
policy. This case was settled on January 14,1991.
The settlement included a penalty component of
$30,000 and a public education component of
$20,000.
Cole Muffler: EPA issued a Notice of Violation in
September, 1989 against Cole Muffler for 444
violations of EPA's aftermarket catalytic
converter policy at 27 separate Cole Muffler
Shops located in New York and Pennsylvania.
Mitigation efforts by Cole Muffler resulted in a
voluntary recall of all vehicles. However, the
company would not agree to an acceptable penalty
for these violations. A complaint was filed in
federal district court on May 16, 1991. EPA
subsequently determined that Cole Muffler had
committed additional violations of the
tampering prohibition, resulting in a total of 3,288
violations. The complaint was amended on
February 27, 1992 to reflect the additional
violations. This is the largest aftermarket
catalytic converter case handled by EPA.
U.S. v. Economy, Muffler and Tire Center EPA
received a very favorable decision in this case
which centered on EPA's aftermarket catalytic
converter policy. This case involves an
automobile repair shop that installed 51 two-
way catalytic converters on vehicles requiring the
installation of three-way catalytic converters,
and four aftermarket catalytic converters on
vehicles still subject to the vehicle
manufacturer's five year/fifty-thousand mile
warranty. A complaint was filed in the District
Court for Virginia after Economy refused to settle
with EPA. The court granted the government's
motion for summary judgment for liability, giving
"considerable deference" to EPA's consistent
interpretation that replacing a three-way
converter with a two-way converter was
tampering, and further stated that the
legislative history supported EPA's
interpretation.
Tampering Cases
CED'S d/b/a Products for Power: During FY 1991,
EPA resolved its longest running case against a
manufacturer of emission control defeat devices,
CED's d/b/a Products for Power. This case arose
from an investigation initiated in early 1980 of
this company and a number of others which
manufactured and distributed catalytic converter
replacement pipes, commonly referred to as "test
tubes," which were designed to be installed in
place of catalytic converters. EPA proceeded
with its investigation of manufacturers under the
theory that the manufacturer was causing
regulated parties (repair shops) to tamper with
emission controls in violation of § 203{a) of the
Clean Air Act Prior to the 1990 Clean Air Act
Amendments it was a violation of § 203(a) of the
Act to "cause" a regulated party to tamper with a
motor vehicle's emission control system. Effective
with the new Amendments, the manufacture or
sale of a "defeat device" such as a test tube, is
now explicitly a violation.
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FY1991 Enforcement Accomplishments Report
After extensive litigation involving the legality
of EPA's search warrant and following extensive
investigation, EPA cited CED's for causing
tampering on 42 vehicles. EPA and CED's signed
a Settlement Agreement in June 1987 which
required the company to terminate all operations
associated with test tubes within 120 days and to
pay $75,000 to the government over .the next 24
months. After EPA discovered that CED's had
neither terminated its sale of test tubes, nor begun
it's payment of the required civil penalties, the
matter was immediately referred to the
Department of Justice who filed for breach of the
agreement. The court agreed with the government
that CED's violated the agreement and that the
government assessment of the company's profits
realized as a result of the breach of the agreement
resulted in a penalty which includes the original
settlement agreement penalty plus these profits
and a punitive penalty amount. Under the decree,
CED's must terminate all manufacturing and sales
of illegal "test tubes," pay a civil penalty of
$292,000, insure EPA a right of entry for future
inspections, and permanently enjoins CED's from
engaging in the manufacturing, sale, or
distribution of these devices.
Cases Involving Manufacturers that Engage in
High Performance Modification of Vehicles
The Clean Air Act Amendments of 1990
established the prohibition against the
manufacture or sale of defeat devices.
§203(a)(3)(B) of the Act, prohibits any person
from manufacturing, selling, offering to sell, or
installing any part or component intended for use
with, or as part of, any motor vehicle, where a
principal effect of the part or component is to
bypass, defeat, or render inoperative any device
or element of design installed on or in a motor
vehicle in compliance with the regulations at 40
C.F.R. Part 86, and where the person knows or
should know that such part or component is being
offered for sale or installed for such use or put to
such use.
The legislative history associated with
the prohibition against defeat devices cites "test
pipes" and programmable read-only memory
(PROM) chips as examples of such devices. All
the'known manufacturers of test pipes have
ceased such production. EPA is currently
investigating PROM chips manufactured by
three different 'companies. Samples of the
PROM chips have been sent to the EPA
laboratory in Ann Arbor, Michigan, to determine
whether they are defeat devices under the
Clean Air Act provisions.
Callaway Cars, Inc,i In this case, EPA alleged
that Callaway modified 111 1988 Chevrolet
Corvettes prior to sale and delivery to the
ultimate purchaser in violation of the Clean Air
Act. Records uncovered by EPA indicate that the
company was aware that these modified vehicles
would not meet federal emissions standards. This
action by EPA was well publicized and should
send a strong message to the industry regarding
EPA's efforts to control high performance
modifications that increase emissions. This case
was settled on August 15, 1991. The settlement
amount is contingent on the results of an EPA
conducted test of a vehicle modified by Callaway
Cars. If EPA concludes that the modified vehicle
satisfies federal emission standards, then
Callaway Cars will pay a penalty of $200,000,
otherwise, it will pay a penalty of $356,000.
Warranty-Cases
Chrysler Corporation: This action alleged that
Chrysler Corporation denied warranty coverage
as required by the Clean Air Act in 40 instances.
This is EPA's second case of this nature. The
emissions warranty covers defects in emissions
related parts or components in an automobile for
five years or 50,000 miles, whichever comes first.
This case was settled on January 25, 1991, with a
civil penalty of $80,000 and a public education
component of $80,000 to be paid to Colorado State
University. Furthermore, Chrysler agreed to
reimburse the owners of the vehicles at issue, as
well as those vehicle owners discovered through
a review of its records, for costs incurred because of
Chrysler's failure to honor the warranty.
Moreover, Chrysler agreed to make certain
changes to its warranty policy as a term of the
settlement with EPA. .
Nonconformance Penalty Program
General Mojors Cprporatjoni In FY 1991, pursuant
to the Nonconformance Penalty Program (NCP),
EPA performed a production compliance audit at
General Motors Corporation to determine the
emission levels emitted by certain heavy duty
engine families. Based on the audit, EPA
collected $386,902 in NCPs from General Motors
for the introduction into commerce of 4,153 heavy
duty engines not in compliance with federal
emission standards.
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FY1991 Enforcement Accomplishments Report
Manufacturers Investigations
In addition to the recall, SEA, and imports
enforcement programs, in FY 1991, MOD
continued to investigate whether manufacturers
are in compliance with Title II of the Clean Air
Act. These investigations focused on
manufacturers that introduced vehicles into
commerce without obtaining an EPA certificate of
conformity demonstrating compliance with
Federal emission requirements. FY 1991 efforts
yielded several full-scale investigations
resulting in substantial settlement payments to
EPA. In addition to these enforcement actions,
MOD is continuing eight manufacturer
investigations.
Cushmaiylnc.1 During FY 1991, EPA concluded its
investigation of Cushman, Inc. EPA determined
that Cushman introduced into commerce 1626
vehicles without an EPA certificate of conformity
certifying compliance with federal emission
requirements in violation of §203(a)(l) of the Act.
By settlement agreement, Cushman agreed to pay
civil penalties of $88,000 and to implement a
retrofit and incentive program to render the
vehicles excluded from the Clean Air Act
requirements. The retrofit and incentive program
required Cushman to provide free service parts to
all vehicle owners as an incentive to retrofit their
vehicles. The service part kit is valued at
$147.50. To date, Cushman has delivered 244
service part kits to vehicle owners for a total
value of $35,990.
Excalibur: MOD also took action against
Excalibur Automobile Corporation, Inc.,
(Excalibur), a manufacturer of neoclassic luxury
automobiles. Excalibur is currently in chapter 7
liquidation bankruptcy. EPA determined that
Excalibur sold 148 vehicles in the United States
without a certificate of conformity in violation of
§203(a)(l) of the Act. In February of FY 1991, EPA
referred the case to the U.S. Attorney's office.
The U.S. Attorney filed a proof of claim in
bankruptcy court against Excalibur seeking
$1,480,000 in civil penalties for the 148
violations.
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.
U.S. v. Aliens Manufacturing Co. fac; On May 21,
1991, the U.S. District Court for the District of
Rhode Island entered a consent decree requiring
that Aliens Manufacturing Co. Inc. of Providence,
RI pay a $210,000 civil penalty and comply with
federal and local pretreatment standards. Aliens
specializes in the production of belt and shoe
buckles and other metal stampings. As a result of
its metal plating operations, Aliens discharges
process wastewater containing heavy metals to
the Narragansett Bay Water Quality
Management District Commission publicly owned
treatment works. This discharge is governed by
EPA's pretreatment standards. As alleged in the
government's complaint, Aliens repeatedly
violated federal electroplating and metal
finishing pretreatment limitations as well as
local pretreatment limits. In addition, Aliens
violated various monitoring and reporting
requirements.
U.S. v. Alto-Tronics Corp; On April 22, 1991, the
U.S. District Court for the District of
Massachusetts entered stipulated amendments to
the government's dean Water Act consent decree
with Alto-Tronics Corp. of Burlington, MA. The
amendments contained a civil penalty of $300,000
for violations of the consent decree that required
compliance with national categorical
pretreatment requirements. Alto-Tronics, a
printed circuit board manufacturer, discharged
heavy metals into the sewer and sewage
treatment system operated by the Massachusetts
Water Resources Authority which, in turn,
discharges into Boston Harbor.
U.S. v. Ashland Oil. Inc. A Regional Presiding
Officer issued a decision on May 22,1991, granting
judgment against Ashland Oil, Inc., and assessing
Ashland a civil penalty of $51,000. The case was
brought administratively under §311(j) of the
Clean Water Act, and 40 CFR Part 114, and
alleged that Ashland did not have a legally
adequate Spill Prevention, Control and
Countermeasures Plan in effect at its Floreffe
facility near Pittsburgh, PA, during the period
immediately before, during and after the
disastrous spill of diesel oil on January 2, 1988. A
hearing was held in May of 1990, The Presiding
Officer rejected Ashland's defenses that its Plan
was adequate under the regulatory standard, that
it had no obligation to anticipate equipment
failure based on its past experience at that
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FY1991 Enforcement Accomplishments Report
facility and that increasing the size of a tank did
not require amendment to the Plan.
U.S. v. Ashland Ethanol et aL. (S.D. OHh On
November 28, 1990, the United States District
Court in Cincinnati entered a consent decree
settling a Clean Water Act (CWA) enforcement
case against defendants over past wastewater
violations at their South Point, Ohio facility.
The decree resolved a suit filed by the
Department of Justice (DOJ) on EPA's behalf
alleging that the plant had exceeded its
National Pollutant Discharge Elimination
System (NPDES) permit limits more than 900
times between July 1983 and September 1987. The
defendants agreed to pay a $627,000 civil penalty.
The case demonstrates that substantial penalties
will be imposed for past violations, particularly
when a company saves significant amounts of
money by failing to promptly correct violations.
y.S. v. Bg Oil. Inc; On December 14, 1990, a
consent decree was entered resolving an
enforcement action brought against BP Oil, Inc. for
Clean Water Act violations at the company's
Marcus Hook, PA, oil refinery. Under the decree,
BP was required to pay a $2,3 million penalty,
$2,191,000 to the United States and $109,000 to
the Commonwealth of Pennsylvania.
y.S. VjJCaribe Tuna (Puerto Rjco| On August 1,
1991 a complaint was filed in this action citing
defendant's violations of its Clean Water Act
NPDES permit for discharges into Ponce Bay,
Puerto Rico, The action was filed as part of EPA's
National Lead Initiative. Caribe Tuna exceeded
its permit limits for a number of pollutants,
including lead, some 370 times from December,
1986 to July, 1990. The facility is a tuna fish
processing and canning facility operated by a
wholly owned subsidiary of Mitsubishi Foods.
The only treatment provided prior to discharge of
its effluent is screening, and the effluent has
consistently violated NPDES permit limits.
U.S. v. Cerro Copper fS.D. lit A consent decree
was entered in this case on January 15, 1991,
requiring Cerro to recycle its wastewaters in order
to meet pretreatment limits for copper and non-
ferrous metals at its Sauget, IL plant. Cerro also
was required to pay a civil penalty of $1,400,000.
U.S. v. Ethyl Corporation (M.D.Louisiana): In
settlement of one of the most significant lead
discharge cases in EPA history, the owner of a
Baton Rouge, Louisiana, organic chemical
manufacturing and lead recovery facility agreed
to pay the United States a civil penalty of
$750,000 for violations of the effluent limitations
in a federal wastewater discharge permit. As
part of the July 1991 EPA Lead Initiative, the
United States filed a complaint in the U.S.
District Court for the Middle District of
Louisiana alleging that Ethyl Corporation had
violated its NPDES permit and §301 of the Clean
Water Act by discharging to the Monte Sano
Bayou and the Mississippi River, on numerous
occasions during the period from December 1987
through July 1991, pollutants in quantities in
excess of permit limitations for total lead, total
suspended solids, total organic carbon,
chlorinated hydrocarbons and pH. The United
States and Ethyl subsequently agreed to a
settlement whereby Ethyl will pay the United
States a penalty of $750,000 and undertake an
environmental audit of the Baton Rouge facility.
The consent decree setting forth the terms of
settlement was lodged with the Court on August
28, 1991. The United States' motion for entry of
the consent decree was filed with the Court on
October 17,1991.
U,«L v. Exxon (New York): On June 14, 1991 the
New Jersey District Court entered a Consent
Decree in this case arising out of a January, 1990
oil spill from a ruptured underwater pipeline.
Under the terms of the Decree, Exxon will provide
about $10 million for a trust fund to mitigate
environmental damage resulting to natural
resources from the spill of over 500,000 gallons of
oil. The fund will be administered by two federal
agencies, the States of New York and New Jersey
and the City of New York. In a related
development discussed under "Criminal
Enforcement Program," below, a guilty plea was
entered by Exxon in connection with the same
spill.
LJ.S. v. Island Petroleum & Jorge Luring (Puerto
RicoJ; On April 6, 1991 the Puerto Rico District
Court entered a an order requiring payment of
nearly $2.8 million in penalties, and permanently
enjoining Island Petroleum Products, Inc. and its
owner, Jorge Luring, from any discharge from its
electroplating facility, either directly to the
waters of the United States or indirectly to a
sewage system. Discharge may not resume until
payment has been made of a $50,000 penalty
owing under a 1988 Consent Decree in the case,
plus payment of $2,736,000 in stipulated
penalties for civil contempt of the prior Decree.
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FY1991 Enforcement Accomplishments Report
U.S. and California v.'Los Angeles, et al: In May,
1991, the United States and California filed suit
against the Cities of Los Angeles and Burbank and
against Chevron, U.S.A., Continental ' Can
Company, Inc., Stainless Steel Products, Inc.,
Teledyne Industries, Inc.,,and Zero Corporation for
violations of EPA's industrial waste pretreatment
requirements. EPA's pretreatment regulations
require cities, like,Los Angeles and Burbank, to
properly regulate discharges of industrial
wastewater to their cities' sewer lines. In 1990,
EPA and California conducted, a detailed.,
evaluation of Los Angeles and Burbank's
performance in implementing their-pretreatment
programs and documented a number of serious <
deficiencies. Most importantly, both cities had
numerous industries which were repeatedly
violating Federal standards for treating toxic
wastewater prior to discharge to the sewer
system. EPA and California identified the five
companies sued as serious violators of Federal
pretreatment requirements that were not being
properly regulated by Los Angeles or Burbank.
EPA has issued orders to the cities and to the
industries to require them to comply with Federal
standards. The civil action is intended to ensure
compliance with the orders and to assess an
appropriate civil penalty for the violations of
Federal requirements.
U.S. v. Louisiana Pacific (Corporation and
Simpson Paper Company; EPA and the
Department of Justice lodged consent decrees in a
Clean Water Act enforcement action against.
Louisiana-Pacific Corporation ("L-P"). and
Simpson Paper Company ("Simpson") on
September 9, 1991. The Consent Decrees resolved
claims brought in 1989 against L-P and Simpson
for repeated violations of NPDES permits at two,
pulp mills located near Eureka, California. Under
the consent decrees, Louisiana Pacific and
Simpson are each required to pay $2.9 million in
civil penalties, the fourth largest penalties ever .
collected under the.Clean Water Act.
EPA and DOJ brought suit to remedy.two water
pollution problems: the persistent chronic toxicity
of the mills* effluents (as measured'by..several
bioassay tests) and the adverse impact, to
recreational users exposed to the mills' effluent
discharges. The Consent Decrees impose several
obligations to remedy these problems. One, L-P
and Simpson must install treatment .technologies
shown effective at reducing chronic toxicity of the
companies' effluents. Two, L-P must install an
outfall extension to ensure that L-P effluent does
not wash into areas used for recreation. Three,
Simpson must study whether treatment measures
can render its effluent colorless, odorless; free of
potential skin irritants and free of compounds
demonstrated in surrogate testing to have
carcinogenic potential. If Simpson is unable to
meet these criteria through treatment, it must
also install an outfall extension to ensure that its
effluent . does not wash into, areas used for
recreation. , .
Boston- Harbor Cleanup - U.S. v. Metropolitan
District Commission: EPA's seven-year
enforcement case effort to clean up Boston Harbor
paid, off during FY 1991 with the initiation of
construction of the long-awaited new secondary
treatment plant at Deer, Island; .The
groundbreaking ceremony was held in July 1991.
The harbor's water quality is expected to improve
when the primary treatment portion of the plant
is completed in 1995 and when the secondary
treatment portion of the plant is completed in
1999." In the meantime, interim improvements to
existing facilities and the elimination of scum
discharges have already led to significant
improvements in the harbor's water quality.
At the same time, the harbor cleanup plan was
jeopardized this past year by the initial failure
of the State of Massachusetts to make available
a landfill, site needed to. ensure the proper
disposal of sewage sludge and other treatment
plant residuals. In response, in February 1991; the
U.S. District Court for the District . of
Massachusetts imposed . a > sewer connection
moratorium, throughout the Boston metropolitan
area. This finally led to the transfer of a landfill
site in Walpole, MA, by the state legislature,
breaking more than a decade of logjams in siting
sludge disposal facilities. - '
U.S. v. Metropolitan Council/Metropolitan Waste
Control Commission (MC/MWCQ: On August 18,
1991, a consent decree was entered in Federal
District Court in Minnesota to settle a suit against
the MC/MWCC for Clean Water Act (CWA)
violations at the Blue Lake and Seneca
Wastewater Treatment Plants, The case (which
came about as a result of the U.S. filing over a
Minnesota suit) reaffirmed that States are
expected to act as U.S. EPA's partners in
enforcement, and must seek penalties that are
consistent with Federal policy. U.S. EPA
disagreed with Minnesota over the relatively
small penalty levied by the State on MC/MWCC.
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FY 1991 Enforcement Accomplishments Report
As a result of the decree, MC/MWCC paid a total
civil penalty of $527,000 ($395,000 to the U.S.
and $132,000 to the State) rather than the
$132,000 in installments to be paid to the State.
Prggfapi: Consent Decrees
were entered in two National Municipal Policy
Enforcement Initiative cases and Phase 1
Pretreatment Enforcement Initiative case in
Region U. Under the Decrees the municipalities
in question will provide upgraded sewage
treatment facilities, and pay civil penalties as
follows: Hoboken, New Jersey ($225,000; achieve
compliance with NPDES permit limits by
1/8/93); West New York, New Jersey ($160,000;
achieve compliance by 5/31/93) and Dunkirk,
New York ($100,000; achieve compliance with
pretreatment and NPDES requirements by
7/1/92). The Hoboken and West New York cases
were two of a number of cases brought against
municipalities in Hudson County, New Jersey. The
consent decrees resolve the last actions in that
group of cases, and culminate a decade-long effort
to bring these municipalities into compliance.
I/.ff, v. FermJrjills, PA W.P- fAV. On September
10, 1991, the United States District Court for the
Western District of Pennsylvania granted the
government's motion for a preliminary injunction
against the Municipal ry of Penn Hills/ PA. Penn
Hills had for some time been discharging
untreated and partially treated sewage from
several treatment plants. The bypassing occurred
most often in wet weather. Two of the Penn Hills
plants are not far upstream from the intake of the
Wilkinsburg-Penn Joint Water Authority, a water
supplier. Penn Hills had failed to respond in
substance to repeated state and federal efforts to
address Penn Hills' noncompliance with its
NPDES permits. In the preliminary injunction,
the court ordered Penn Hills to take immediate
steps to identify all points at which bypassing
was taking place, and to develop a plan to
eliminate the bypassing. The court also ordered
Penn Hills to hire an independent outside
contractor to review the operation of the plants
and to develop an overall process control strategy.
tf.S. v. Pfizer figments Jr^c.. et al.
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FY1991 Enforcement Accomplishments Report
on the appropriate amount of the penalty.
U.S. v. Roll Coater (S.D. Ind.fe On March 22,1991,
the U.S. District Court for the Southern District
of Indiana, assessed one of the largest civil
penalties ever obtained for pretreatment
violations - $2,093,750. The penalty was
assessed against Roll Coater for its violations of
the national categorical pretreatment standards
for coil coaters. This was one of the first Clean
Water Act cases that EPA has taken to trial on
the issue of penalties. The court awarded a
penalty well in excess of the economic benefit
that Roll Coater obtained as a result of the
savings it obtained during the years it was
discharging wastewater containing chromium,
zinc and cyanide to the public sewers in violation
of applicable national pretreatment standards.
This case was filed in July 1989. The opinion filed
by the court only dealt with the issue of penalties
since Roll Coater had completed installation of a.
new treatment plant and achieved compliance by
August 1989.
Rosebud Sioux Reservation (Rosebud. South
Dakota): In June 1991 an administrative
compliance order was issued to the Rosebud Sioux
Tribe ordering the tribe to cease the discharge of
raw sewage to Rosebud Creek. Citizens
complaints from the reservation and the obvious
human health risks associated with the release
of raw sewage prompted this action. Through
close coordination with the municipal facilities
branch of EPA this action proved to be successful.
The discharge was ceased as required by the
Order. The discharge of raw sewage to the
nations .waters are a common occurrence on
reservations due to the lack of federal funding.
Through coordination with municipal facilities,
EPA can help to eliminate these poor conditions
by providing money, technical assistance and a
reasonable schedule for achieving compliance
with the Clean Water Act to the tribes. This case
has served as a model for providing assistance to
other reservations with poor wastewater
treatment conditions.
U.S. v. South Essex Sewerage District- In
September, 1991, EPA and Massachusetts settled
an action against the South Essex Sewerage
District (SESD) which addressed the discharge
of pollutants into, Massachusetts Bay in violation
of the Clean Water Act. Under the consent decree
entered by,the U.S. District Court for the District
of Massachusetts on September 16, SESD agreed to
pay & fine of $225,000 and comply with a
schedule to construct a secondary wastewater
treatment plant and meet interim effluent -limits.
SESD is a sewer authority that represents the,
communities of Beverly, Marblehead, Peabody,
and Salem, MA. It operates a 41 million gallon a
day primary wastewater treatment facility -in
Salem. SESD had applied for and been denied a.
§301(h) waiver under the Clean Water Act, but
had not proceeded to construct a secondary
wastewater treatment plant.
U.S. v. Tcrre Haute, IN. (S.D. INk On November
7, 1990, a consent decree resolving U.S. v. Terre
Haute, IN was entered by the court. Among other
things, the Decree requires Terre Haute to
undertake both short-term and a long-term
compliance programs. The main features of the
long-term program are: rehabilitating tthe.
anaerobic digesters, constructing additional plant
improvements, and carrying out a long-term solids
management plan, and an operating plan for the
treatment plant. Additionally, the consent decree
requires Terre Haute to pay a civil penalty of
$81,000 for past violations of the Clean Water
Act. , -....-.
U.S. y.. USX Gary Works,, (N.P. INfc The consent
decree with USX Corp.'s Gary Works facility,
entered in U.S. District Court in Hammond, IN, on
October 22, 1991, marked a turning point in-the.
history of the Grand Calumet River. At a'cost of
$34.1 million, including $1.6 million in civil
penalties, USX must bring its Gary Works plant
into compliance with the Clean Water Act/The
decree specifies more than 100 steps designed, to
effect source-by-source reduction of waste.
materials at the plant. Furthermore,. USX must
develop and implement a sediment remediation-
plan designed to address contaminated river
sediments along the five miles of Grand Calumet
River abutting USX property. Not only does the
settlement require compliance with the Gary
Works' 1983 permit, it stipulates further .actions
in anticipation of the more stringent limitations
in the next permit. . :
U.S. v. Wheeling-Pittsburgh Steel. (S. D. Ohio):
On July 16, 1991, the U.S. District Court for the
Southern District of Ohio entered a settlement
containing the largest civil penalty ever obtained
by the United States, or a citizen group, for Clean
Water Act wastewater discharge violations -'-'
$6,184,220. During the course of this litigation,
Wheeling-Pittsburgh installed most of the basic
treatment facilities and monitoring stations
needed to comply with its water permits at its
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FF 1991 Enforcement Accomplishments Report
*'
M
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Steubenville, Mingo Junction and Yorkville
facilities in Ohio, at a total cost of over $20
million. This record penalty and a comprehensive
compliance program was obtained despite the
fact that Wheeling-Pittsburgh Steel was in
bankruptcy from 1985 through 1991. In addition to
paying the penalty, the settlement requires
Wheeling-Pittsburgh Steel to undertake numerous
measures to remedy past violations and prevent
future violations. Pursuant to the settlement,
Wheeling-Pittsburgh Steel will conduct a
comprehensive facilities evaluation to identify
and remedy all possible sources of water pollution
discharges, implement a toxicity reduction
program, and conduct biannual environmental
audits. This case was initiated by the U.S. in June
1988 because Wheeling-Pittsburgh Steel had
committed thousands of violations of applicable
Clean Water Act permit requirements, including
repeated discharges of wastewater containing
lead, zinc, cyanide, total suspended solids, oil
and grease, and total chrome to the Ohio River in
violation of applicable limits.
Sugar: For discharging excess amounts of
sugar which resulted in increased levels of BOD
into the Yegen Drain, Yellowstone River, this
facility in Billings, MT, paid total penalties of
$338,000, (an initial penalty of $185,000 plus
stipulated penalties of $153,000). The company
also installed monitoring equipment costing
$250,000. The facility was found to be out of
compliance with its Consent Decree which
stipulates payment of the statutory maximum
penalty if high BOD levels resulted from further
discharge. Western Sugar also spent $1 million to
correct its new monitoring equipment. Sugar also
spent another $1,000,000.
State Water Enforcement Actions
Beginning with the FY 1991 Accomplishments
Report, EPA will be including significant state
enforcement actions submitted by the EPA
Regional offices. We anticipate that State
actions will play a greater role in future reports.
COOTS Brewing (Gqldeiy Coloradj): The State of
Colorado settled three enforcement actions
against Coors Brewing during FY 1991. The first
enforcement action, settled on October 23, 1990,
resulted from an unpermitted discharge of ground
water contaminated with solvents and BTEX into
Clear Creek. The State settlement included a
cash penalty of $250,000 with an additional
$400,000 in credit projects. EPA's RCRA
enforcement action for this discharge was
initiated on June 16, 1990, and settlement for
$700,000 was reached on October 3, 1991. A second
State enforcement action against Coors resulted
from an operator error at the brewery which
caused beer to be discharged to the wastewater
treatment plant, which in turn caused a fish kill
in Clear Creek. The State collected $36,000 for
this discharge. The State issued a separate
action against Coors for effluent violations of
their NPDES permit. The State settled with
Coors for $175,000 for these violations. Coors
Brewing has required that their departments
begin to coordinate and clear all actions through
their environmental department to prevent
further environmental damage.
Geneva Steel CggjocaUon: In the largest out-of-
court settlement for violations of the Utah Water
Pollution Control Act and the Utah Pollutant
Discharge Elimination System Permit for its mill
at Orem,Utah Geneva Steel Corporation paid
$467,000 in upfront and stipulated penalties
between December 1989, and June 1991. These
stipulated penalties for discharging excessive
ammonia concentrations were included in the
Settlement Agreement signed May 31, 1990.
Water. Co.. Noelr MO: The Noel Water
Company treats wastewater from the Hudson
Foods poultry processing plant. The State
established that the facility had improperly
discharged wastewater into the Elk River,
located in southeast Missouri. The Missouri
Department of Natural Resources filed suit in
federal court against Noel Water Company and
Hudson Foods on January 28, 1991, for repeated
water pollution violations. It was the first
lawsuit of it kind ever filed by the State of
Missouri under the citizen suit provisions of the
Clean Water Act. In addition to compliance
schedules for both Noel and Hudson, the
companies agreed to pay in excess of $200,000 plus
contributions to local agencies.
Corporation: In one of the largest out-of-
court penalty settlements for violations of the
Utah Pollutant Discharge Elimination System,
Thiokol Corporation agreed to pay $70,000 in
penalties to the State of Utah. Meanwhile,
Utah agreed to waive another $25,000 in
penalties if Thiokol met all deadlines of the
compliance schedule in the Settlement Agreement
signed by both parties September 9, 1991. This
settlement agreement concluded regulatory
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FY } 991 Enforcement Accomplishments Report
enforcement actions against the company for
violations of the Utah Water Pollution Control
Act which began with the issuance of a Notice of
Violation and Order on February 22,1991.
Federal Facilities - CWA
USAF Cheyenne Mountain (Colorado): On
January 10, 1989, a NPDES Reconnaissance
Inspection was performed at the facility. As a
result of deficiencies found during an inspection,
EPA entered into a Federal Facility Compliance
Agreement to Cheyenne Mountain Air Force Base,
0anuary 4, 1991). The Agreement contained a
construction schedule which required Cheyenne
Mountain AFB to connect the North Portal
oil/water separator to the Fort Carson Sanitary
Sewer and to terminate discharge from Outfall
001 by September 30, 1991. Cheyenne Mountain
AFB has met all requirements of the FFCA.
Mt. Rushmore National Memorial (South'
Dakota): Mt, Rushmore operates a wastewater
treatment plant which discharges under an.
NPDES Permit. The facility has had problems
consistently meeting the effluent limit in its
permit. To .correct identified problems at the
facility, EPA entered into a Federal Facility
Compliance Agreement with Mt. Rushmore (April
20, 1991). The Agreement contained a construction
schedule to upgrade the facility. Mt. Rushmore
has met all requirements of the FFCA.
Marine Protection Research.
Sanctuaries Act (MPRSA)
and
Qcean, Dumping Ban Act Enforcement: During FY
1991 Region II continued to track compliance with
the nine judicial Consent Decrees and Enforcement
Agreements entered into by EPA with the States
of New York and New Jersey and the municipal
sludge dumpers. Although the six municipalities
in New Jersey ceased all ocean dumping of sludge
in March, 1991 as scheduled; EPA negotiated
modifications of five of the nine Decrees to allow
time for the exploration of beneficial reuse of
sludge as a long-term, land based alternative.
The five municipalities for which such
modifications were made' are: Westchester'
County, N.Y., Middlesex County and Bergen
County Utilities Authorities, N.J., Linden Rosell
Sewage Authority, N.J., and Rahway Valley
Sewage Authority, N.J. In addition, EPA issued
demand letters to collect stipulated penalties for
violations of the Consent Decrees by the Passaic
Valley Sewerage Commission, N.J. and the Joint
Meeting of Essex and Union Counties, N.J. The
violations they are charged with involve.
inadequate interim sludge handling contracts.
In the Matter of Port of Oakland and Great Lakes
Dredge and Dock Company: EPA Region- IX
entered into a consent agreement with the Port of
Oakland resolving its Marine Protection Research
and Sanctuaries ,Act (MPRSA) administrative
enforcement action against the Port of Oakland.
The Port of .Oakland and. -its contractor, Great
Lakes Dredge and Dock Co., violated the MPRSA
by: 1) discharging contaminated dredge sediments
into the Pacific Ocean in violation of a,MPRSA
permit, and 2) failing to adhere to various
operational and monitoring requirements imposed
by, the MPRSA permit. Under the .consent
agreement, the Port paid a civil penalty of
$150,000. . . ''.,..
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.
' ' ' 'i
A&A Enterprises/Blue Spruce Placer Mine
(Boulder County. Cploradofc On June 6, 1991,
Region VIII ordered A&A Enterprises to restore a
placer mining site in wetlands adjacent to Gamble
Gulch and Boulder Creek, The Region,also began
proceedings to assess up to $24,800 in penalties for
violations of §404 of the Clean Water Act in.1990
and 1991. These administrative enforcement
actions followed attempts to resolve , the
violations informally. Publicity associated with
the enforcement actions generated several public
comments in support of strong enforcement against
the firm. Small placer mining operations are
widespread in Region VIII and' the deterrent
effect of the enforcement actions should .extend
beyond the immediate area of the Blue Spruce
Placer Mine violations. '.>'
Richard Anderson & City of Hampden
fHampden. North Dakota): On December-14,
1990, Richard Anderson and the City of
Hampden, North Dakota, signed ;an
administrative order on consent requiring
restoration of seven wetlands that had .been
illegally drained into a county road right-of-way.
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FY1991 Enforcement Accomplishments Report
- k %
mj
a/**
The drainage activities violated §404 of the
Clean Water Act and Federal Highway
Administration prohibitions against draining
wetlands into the rights-of-way of federally-
funded roads and highways. The restoration
work was overseen in the field by representatives
of the U.S. Fish and Wildlife Service and the
Soil Conservation Service, Satisfactory
restoration of the 32 acres of wetlands affected by
the violation has been completed.
Clifton Water District (Clifton. Colorado): On
the eve of a Class I administrative penalty
hearing scheduled to begin on September 23,1991,
the Clifton Water District agreed to pay a
$20,000 penalty for constructing a municipal
water supply diversion structure in the Colorado
River east of Grand Junction, Colorado, in
violation of §404 of the Clean Water Act. The
discharges, which occurred in the late fall of 1988
and winter of 1989, affected a reach of the river
inhabited by the Colorado Squawfish, a
federally listed endangered species, and the
razorback sucker, which was recently proposed for
listing as an endangered species. The penalty
settlement represented a milestone in a series of
enforcement actions in response to the District's
Clean Water Act §404 violations during
construction of the diversion structure. In June,
1989, EPA ordered the District to perform an
alternatives analysis and studies of the
structure's impact on migration of endangered fish
species. On May 30, 1991, the District signed a
consent agreement requiring it to seek after-the-
fact authorization for the structure from the Corps
of Engineers. The consent agreement also requires
the District to remove any structures and fill
material that are not authorized by the Corps at
the conclusion of the after-the-fact permit
process.
U.S. y* Golf Legends. Ltd..(Conway. S.Ctfr -
Region IV fined Golf Legends, Ltd. $75,000 for the
unauthorized filling, excavation, and clearing of
approximately 123 acres of forested wetlands near
Conway, SC In addition to the fine, Legends
restored and created approximately 40 acres of
wetlands on site, preserved in perpetuity
approximately 460 acres of wetlands adjacent to
the golf course and a 100 acre bay in the Conway,
SC area.
Markgl Homes. Inc. (Boulder, Colorado): A
Colorado developer paid a $20,000
administrative penalty and agreed to perform a
three-acre wetland restoration project on Boulder
Open Space property. The wetland restoration
project is intended to compensate for Markers
filling of 1.3 acres of urban wetlands between 1984
and 1987 without a Clean Water Act §404 permit
and then building apartment units on them. The
19-acre wetland impacted by the project was
given a high priority for protection under the
City of Boulder's local wetland protection
program because of its size and the amenities it
provided to nearby residents. EPA agreed to the
compensatory mitigation project instead of
requiring the removal of the buildings and the fill
they were built on because of the tenuous financial
condition of the developer and the savings and
loan company that had financed the project. The
City of Boulder played a key role in the
enforcement action by providing technical advice
to EPA and negotiating the agreements under
which the developer was allowed to perform the
mitigation work on Open Space land near Boulder
Reservoir. The case reflects the Region's
continuing commitment to enforcement actions
aimed at protecting wetlands in urbanizing areas
in the Rocky Mountain west.
Ramsey County Water Resources District (Ramsey
County. Mmth Pakotak On January 17, 1991,
Region VIII completed a series of administrative
enforcement actions begun in 1989 against the
Ramsey County Water Resources District for
violations of §404 of the Clean Water Act. The
District is a state-chartered drainage 'agency
operating in Ramsey County, North Dakota. Late
in 1988 the District hired a contractor to excavate
a channel at least 45 feet wide through prairie
pothole wetlands for the purposes of converting
wetlands to crop land. An estimated 5,000 cubic
yards of vegetation and soil was discharged in
wetlands on either side of the drainage channel
and the ditch drained 600 - 700 acres.of palustrine
emergent semi-permanently flooded wetlands.
The Region's enforcement actions culminated in
payment of a $2,500 penalty by the Water
Resources District and the completion of
restoration measures aimed at blocking the ditch
and breaching the spoil piles along it. The case
marked Region VIII's first administrative
penalty action for a §404 violation and sent a
strong deterrent message to other drainage
districts in North Dakota where similar
enforcement actions were underway or pending.
U.S. v. Floyd E. Riley and Fercom Aquaculture
Corporation (E.p. Mo,): As a result of this
enforcement action, 200 acres of wetlands will be
established to replace wetlands destroyed by the
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FY1991 Enforcement Accomplishments Report
defendant In settlement of a Clean Water Act
§404 enforcement action on September 15, 1991,
forested wetlands, emergent .wetlands, and
aquatic beds will be established in the
floodplains of two streams in north central
Missouri. In addition, a 140 acre greenbelt will be
established in perpetuity along the larger of the
two streams, and the defendants will pay a
$5,000 civil penalty. In the construction of its
aquaculture ponds, the defendants destroyed 160
acres of forested wetlands, wetland pasture,
oxbow wetlands and stream channels.
Corp. v. William Reilly. et
al. (New Jersey): After more than three years of
protracted litigation, the New Jersey District
Court on May 17, 1991 dismissed .this challenge to
an EPA "veto" under §404(c) of the Clean Water
Act of a wetlands fill permit. Though nominally
a defensive litigation, the case has significance
to EPA wetlands enforcement program, holding
that EPA may "veto" an "after-the-fact" permit
proposed by the Army Corps of Engineers. The .
plaintiff, a developer, sought to enjoin EPA
and/or the U.S. Army Corps of Engineers from
enforcing any provisions of the Clean Water Act in
connection with property it owns and has
developed in the Hackensack Meadowlands,
New Jersey. The plaintiff asserted that
enforcement action threatened by EPA for
violations of P04 of the CWA was causing it
irreparable injury. The action arose after EPA, in
March, 1988, issued the §404(c) "veto" of any
permit to fill wetlands within approximately 57
acres of property owned by the plaintiff. The
plaintiffs request for reconsideration has been
denied; an appeal to the Third Circuit is
considered likely.
U.S. v. Marshall Sasser. South Carolina: In July,
1991, a .Presiding Officer issued an. Initial
Decision, assessing a penalty of $125,000, and
directing the respondent to submit a restoration
plan for EPA approval, and to implement an
approved plan of restoration for approximately
75 acres of tidal wetlands. Mr. Sasser owns
property in South Carolina that includes
wetlands which were historically impounded to
facilitate rice cultivation.
Sinclair Oil Corporation d/b/a Sunlight Ranch
(Montana): In the first ruling of its kind in the
9th Circuit, the Sinclair Oil Corporation was
found in violation of §404 of the Clean Water Act
for bulldozing a large amount of streambed
material in the Little Big Horn River in Montana
during late winter and early spring, 1987. The
court held that a redeposit of indigenous
strea-nbed materials constitutes an addition of
pollutants and that the defendant's activities
were therefore regulated. Following the
appointment of a settlement judge to facilitate
the resolution of civil penalty, issues, the Sinclair
Oil Company agreed to pay a- penalty of $15,000
and a consent decree was entered by the court on
August 28, 1991. Stream restoration work had
been completed pursuant to an EPA
administrative order which was issued in 1987.
The court's favorable ruling is important because
the kind of stream alteration work at issue is
commonplace throughout Region VIII.
U.S. v. plaine and j^nnfe Stewar^. Robbjpsf \llef
N.C.: - Region IV fined the Stewarts $3,000 for
the unauthorized filling in a trout stream in
Robbinsville, NC. The fill resulted in a large fish
kill downstream. The Stewarts restored the
impacted area and also paid the State of North
Carolina $3,000 for costs incurred by the fish kill
and restocking the impacted stream.
T^c^rtpartngrship (Boulder. Colorado): During
December 1990, Techpartnership, a Boulder,
Colorado, commercial real estate development
partnership, completed removal of illegally
discharged fill placed in 1.8 acres of a 19 acre
wetland. The discharges, which violated §404 of
the Clean Water Act, occurred in 1987 and 1989. In
March, 1991, Techpartnership paid a. $5,000
administrative penalty following administrative
enforcement action begun by EPA Region VIII in
September, 1990. The affected wetland. received a
high priority for protection in a City of Boulder
study of wetlands within the Boulder Planning
Area and was the subject of illegal discharges by
others as well. EPAs enforcement actions
reflected the Region's emphasis on urban
wetlands and resulted in the restoration of
wetland values in the affected area.
U.S. v. Winding Brook Turf Farm: A conservation
easement was established as part of a consent
decree entered on July 18, 1991, by the US.
District Court for the District of Connecticut in
the wetlands enforcement case of U.S. v. Winding
Brook Turf Farm. The defendant, which proposed
the easement as a supplemental environmental
project, was alleged to have filled 17 acres of
wetlands in Suffield, CT. In settlement of EPA's
complaint, the defendant agreed to restore the
damaged wetlands, pay a $35,000 penalty, and
establish a conservation easement on the filled
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FY1991 Enforcement Accomplishments Report
wetlands and adjoining land to help ensure better
long-term protection of the wetlands.
Safe Drinking Water Act (SDWA)
Enforcement
Public Water Supply Program (PWSS)
The PWSS program establishes a
regulatory program for public water systems and
requires EPA to set drinking water standards
{including Maximum Contaminant Levels) for a
variety of pollutants.
U.S. v. City of North Adams An important
precedent was established during 1991 in EPA's
drinking water enforcement case brought against
the City of North Adams, MA. On August 7,
1991,the federal district judge ruled that the EPA
could bring a federal court action notwithstanding
the earlier filing of a state court action, where
the state court action sought relief less extensive
than that sought by EPA and where the state
court action was not filed within thirty days of
the state receiving a Notice of Violation from
EPA. Prior to the initiation of the federal court
action, the City had refused to agree to any
binding schedule for the construction of a drinking
water filtration plant. Trial in federal court was
held in November 1991 to establish a federally
binding schedule and to set the penalty that the
City will need to pay because of its past delays.
U.S. v. EBCO Company, Inc.(S.D. Ohio): As part
of the Agency's Lead Enforcement Initiative, a
civil action was filed against the EBCO
Company, Inc. of Columbus, Ohio, for the
manufacture and sale of drinking water coolers
which were not lead free. This was the first
action under the Lead Contamination Control Act
of 1988, which amended the Safe Drinking Water
Act (SDWA). A Consent Decree was entered by
the Court which provided for a repair recall
program and a $220,000 penalty. This is the
largest penalty ever obtained under the SDWA.
Underground
Program (UIC)
Injection Control
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);
and enforcing against violations at injection
wells for other than hazardous waste, mining, or
oil and gas (Class V).
Underground Injection Control
Initiative
On September 13,1991, EPA issued, after an
intensive period of negotiations, ten National
Administrative orders on consent with ten major
oil companies. The oil companies to whom the
orders were issued are Amoco, Ashland, B.P.,
Exxon, Marathon, Mobil, Shell, Sun Oil, Texaco
and Unocal, The Orders require extensive
inventory information, cessation of injection,
waste minimization, extensive closure, an
oversight contractor for a representative sample
of the closures, and penalties totaling more than
$800,000.
This enforcement action was the first of its
kind under the Underground Injection Control
Program in its use of national administrative
orders to address oil company operations in 49
states and territories and was brought to identify
the Class V wells of the companies and remedy
contamination associated with their use. The
initiative will result in the permanent closure of
over 1800 service station bay drain wells nation-
wide that had been receiving automotive-
related wastes such as oil, anti-freeze, solvents,
etc., some of which had been seeping into
underground sources of drinking water. Closure of
these-wells will prevent further contamination,
U.S. v. TLS. Inc. (S.D. Miss.): A judgement by
default was issued against TLS, Inc., Heidelberg,
Mississippi, on July 22, 1991, for violation of the
Safe Drinking Water Act's UIC regulations. TLS
failed to pay an administrative penalty of
$10,000, and stipulated penalties of $200 per day
agreed to in an Administrative Order on Consent,
which also required TLS, Inc., to properly plug
and abandon an injection well. The Court
awarded the government penalties of $7,500, the
unpaid balance due, plus stipulated penalties
accruing under the Administrative Order at the
rate of $200 per day from October 7, 1988 until
compliance is achieved with the provisions of
the Administrative Order, plus interest on the
total amount from the date of the Court's Order
until paid in full, plus all costs.
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FY1991 Enforcement Accomplishments Repon
Comprehensive Environmental
Response, Compensation, and
Liability Act (CERCLA) Enforcement
(Swperfund)
FY 1991 Superfund enforcement made
significant strides toward refining certain areas
of CERCLA enforcement and attaining the
"Enforcement first" goal of the 90-Day Superfund
Management Review, The benefits of the FY
1991 enforcement program include both savings in
the expenditure of the fund «»rf acceleration of
the nation's efforts to cleanup hazardous sites, A
model consent decree ws adopted which will
simplify awl speed the settlement process. In
addition, close integration of the Response and
Enforcement Programs continues to result in a
healthy increase in cleanup settlements through
judicial actions and consent decrees,
jLS._y. Alabama Pow.pt et
j^ AJtil A
settlement involving many of the Southeast's
electric cooperatives and a subsidiary of the
Southern Company resulted, in a recovery for the
government of $1325,518 in costs spent to
remediate . a National Priorities List (NPL)
Superfund Site. 'Over 100 generators were
designated as potentially responsible parties
(PRPs>. They negotiated with EPA for one year to
achieve the settlement which includes conduct by
the PRPs, of thirty years of operation and
maintenance at the Site, The consent decree was
entered in the U.S. District Court for the
Northern District of Alabama on May 10, 1991,
The Site, located in Greenville,, .Alabama,
included two pieces of property which -had been
contaminated with PCBs in the course of
transformer repair operations at the now-
bankrupt Mowbray Engineering Company. EPA
cleaned up the Site pursuant to Superfund before
discovering that there were viable PRPs,
U.S. et a3. v. Alcan Aluminum Cprp..$laL (N.D,
Mew ?flrjkj: On Jan. 15, 1993, the District Court
granted in its entirety the government's Motion
lor Summary Judgment against Akan Aluminum, a
PRP at the Pollution Abatement Services (PAS)
Superitmd site in New York. Akan was ordered to
pay EPA and its co-plaintiff, the State of New
York, about $4 million in past costs incurred in
connection with cleanup work at the site. Alcan
had refused to participate in a 1987 settlement
with some 83 other PRPs, pursuant to which they
reimbursed the plaintiffs about $9.1 million in
past costs. EPA sued Alcan for all costs not
recovered from those settlors. From 1970 to 1977
Alcan had sent to PAS about 200 gallons of PCBs,
and about 4.6 million gallons of a waste emulsion
contaminated with small quantities of metals
including lead, cadmium and chromium. Alcan
had argued that these contaminants were in such
low concentrations that the materials did not'
constitute "hazardous substances" under CERCLA;
the court rejected any lower limit for
concentration of hazardous constituents. The court
also awarded the government prejudgment
interest and declared that EPA's indirect costs are
also recoverable. The opinion is particularly
important because Alcan has refused .to
participate in numerous other Superfund
settlements involving essentially the same sorts'
of waste shipments.
4
Alioway v. U.S. (D. NgWJ«;isevk The District
Court of New Jersey on February 19,1991, denied a
motion to stay an EPA administrative Order-for'
Access issued by Region II pursuant to §104{e) of
CERCLA. The court also granted EPA's cross-
motion and ordered the plaintiff to comply with
the administrative order. That order sought
access to Alioway s property which, although not
contaminated nor even contiguous to contaminated
property, is a potential route to the Ewan
Property Superfund site, which is "landlocked"
and has no road access, Alioway also argued that
the 5th Amendment of the Constitution required
EPA to compensate him before entering his
property. The court dismissed this claim as we!!,
noting that Alioway could file a TuckertAcf-claim
after the action. The opinion stressed'''EPA's
poHce power and supported a broad;readirigof the",
statutory term "adjacent property." * AUoway
appealed the decision to the Third Circuit Court
of Appeals, which denied the requested stay of
the order.; EPA then promptly carried out the site
work in question, rendering any further litigation
at this time moot.
Anspec Copipaay y. Johnson. Contois, Iffi^ On
January 4, 1991, the Sixth Circuit reversed and
remanded the Eastern District Court of
Michigan's ruling that a successor corporation
could not be liable under CERCLA §107(a). '-The
Department of Justice filed an amfcus brief in the
plaintiffs appeal of the September 25, 1989,
decision in this CERCLA private party
contribution action. The plaintiff seeks to recover
costs incurred in cleaning a site contaminated
with hazardous substances. The plaintiff sued
the successor corporations of the site's former
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FY1991 Enforcement Accomplishments Report
owner. The Sixth Circuit concluded that Congress
included successor corporations within the
description of entities that are potentially liable
under CERCLA for cleanup costs. The court also
concluded it did not have to fashion a federal
common law rule to reach a determination. The
court applied Michigan corporation law to find
that a successor corporation is liable after there
has been a formal merger.
Arctic Surplus; EPA Region X successfully.
negotiated and executed an administrative order
on consent for a removal action at a privately-
owned site with the U.S. Defense Logistics
Agency (DLA). Two such administrative orders on
consent have been negotiated and executed with
DLA with respect to the Arctic Surplus site.
Arctic Surplus is a 22-acre site located in a mixed
commercial/residential area near Fairbanks,
Alaska. Past activities at the site involved the
disposal and treatment of military surplus,
including the salvaging of batteries and the
incineration of transformer casings and
transformer oil containing PCBs. Much of this
military property was surplused by the U.S.
Defense Logistics Agency (DLA), Asbestos, PCB,
and lead contamination are prevalent,. and pose a
direct threat to the area's drinking water supply.
The first administrative order (1990) required
DLA to conduct specific removal activities at the
Arctic Surplus site. In. 1991, DLA entered into a
second order with Region X which provided that
DLA would finance EPA removal activities at the
site during the summer of 1991, including an extent
of contamination survey and necessary
removal/containment activities. Pursuant to this
order, DLA agreed to pay $500,000, into an EPA
site-specific account and agreed to pay an
additional $500,000 if necessary. These costs
included the payment of oversight costs. In
addition, DLA agreed to pay directly for lab
work, continue groundwater monitoring and to
continue investigating long-term treatment/
disposal options for dioxin. Stipulated penalties
were included in the order.
U.S. v. Atochept
- Inc. (D. New
Jersey): A Consent Decree was signed by the
Defendant in June, 1991, pursuant to which
Atochem will carry out a $46 million RD/RA at
the. Meyers Property Site in New Jersey. The
company has also agreed to reimburse EPA $2.7
million in past costs, as well as all future costs
incurred by EPA. Under the settlement, Atochem
will carry remedial work at the site, located in
Franklin Township. Soils at the site were found
to contain a variety of chemicals, including
chlorinated pesticides (particularly DDT and its
breakdown products), and volatile and semi-
volatile organic compounds. A predecessor of
Atochem was an owner/operator of the site
producing DDT there in the early I940's.
U.S,_g. Automation Components^ et al. (D. New
Jersey): The District Court on September 9, 1991
entered a default judgment against two
defendants in this action. The complaint in this
case named nine defendants who are PRPs at the
SCP/Newark Superfund site in New Jersey. The
defendants failed to participate with other PRPs
in a 1985 settlement for a removal action valued
at about $3 million. Region II then issued to non-
settlors a unilateral administrative order
requiring them to cooperate and coordinate with
the settlors on the removal work. Four of the
defendants did not comply with their orders;
other defendants failed to comply with the
consent order they executed. The complaint in
this action seeks cost recovery, civil penalties and
treble damages against the non-compliers. The
two defendants involved in the default judgment,
Maas & Waldstein Co. and Automation
Components, Inc., had declared bankruptcy.
Under the default judgment they were each
declared jointly and severally liable for $289,272,
the full amount of costs incurred by EPA in
connection with the site. The default judgments
will be entered in the appropriate Bankruptcy
Courts.
U.S. v. AVX Corp.. et al; On July 16, 1991, the
United States District Court for the District of
Massachusetts entered the first consent decree for
this site between plaintiffs EPA, National
Oceanic and Atmospheric Administration, and
the Commonwealth of Massachusetts and two
defendants, Aerovox, Inc. and Belleville
Industries. These defendants are a current and
former operator of a capacitor manufacturing
plant on New Bedford Harbor responsible for PCB
dumping which caused extensive contamination of
harbor sediments and biota.
Under the consent decree, the plaintiffs will
recover a total of $12.6 million for remedial
activities and natural resource damages.
Furthermore, in September of 1991, the
Department of Justice lodged a consent decree
settling the liability of AVX Corporation at this
Superfund site for $66 million. Under the
settlement AVX Corporation, the major
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FF /99J Enforcement Accomplishments Report
contributor to PCB contamination of New Bedford
Harbor, will contribute $50 million toward
remedial activities at the site and $7 million to
federal and state trustees for the restoration of
natural resources damaged by PCB contamination,
U.S. v. gethlehem Steel. (7th Cir. 1990): On
December 28, 1990, the United States Court of
Appeals for the Seventh Circuit upheld the
District Court's determination that U.S. EPA
properly denied Bethlehem Steel's petition,
under §106(b) of CERCLA, for reimbursement of
costs expended by the Company to conduct a
partial cleanup of the Conservation Chemical
Company of Illinois (CCCI) facility in Gary, IN.
§106(b) was enacted as part of the 1986 Superfund
Amendment and Reauthorizaticm Act (SARA)
amendments. Bethlehem had received a §106
order to conduct the cleanup activities prior to the
enactment of the SARA amendments but complied
with the order post-SARA. The court agreed
with the EPA that §106(b) was applicable only to
a party which both received and complied with a
CERCLA §106 order after enactment of the SARA
amendments. This was a matter of first
impression although a similar case is pending
before the District of Columbia Circuit and at
least one other case has been filed by Bethlehem
in Colorado.
jiingl^gm Cregk; Channel Keim^cott Copper
Company (Utar^l: An Administrative Order on
Consent was issued May 20,1991, settling recovery
of $250,000 in past response costs, $2 million in
future costs, and the performance of certain
removal actions at the Bingham Creek Channel
site. Kennecott Utah Copper Company agreed to
reimburse the Superfund for costs incurred by
Region VIH's Emergency Response program in the
investigation and cleanup of lead soil
contamination in residential areas near West
Jordon, UT, and also agreed to haul the
contaminated soils to a repository on its property
for secure storage.
Hoarhead Corporation v. Edwin ErSckson: In a
case with potential precedential value involving
EPA's work at Superfund sites, the U.S. Court of
Appeals for the Third Circuit upheld a lower
court ruling against a property owner's request to
stay EPA's CERCLA-related pre-clean up
activities until EPA conducted appropriate
review under §106 of the National Historic
Preservation Act. The Court of Appeals decision
of January 1991 agreed with the U.S. District
Court's earlier opinion that the Boarhead
Corporation's complaint lacked subject matter
jurisdiction pursuant to the timing procedures for
judicial review specified in §113(h) of CERCLA,
as amended.
The decision allowed EPA to continue with site
investigative work at the Boarhead Farms site in
Bucks County, PA. The decision suggests that
EPA's clean up activities at Superfund sites cannot
be slowed or halted as a result of legal actions
brought against EPA by private parties under
other statutes, where CERCLA is determined to
take precedence over those statutes. The case had
added importance since both the State of
Pennsylvania.Historical and Museum Commission
and the National Trust for Historic Preservation
filed an amicus curiae brief supporting Boarhead
Corporation's appeal of the lower court ruling.
U.S. v. BRIO Task Force (S.D. Texas): On April 4,
1991, the U.S. District Court for the Southern
District of Texas signed a consent decree between
the United States and those parties who have
agreed to conduct a remedial action at the Brio
Superfund Site. The court also entered an order
which denied petitions from a citizen group and
two utility districts who had wanted to change
the proposed consent decree. The court in its ruling
indicated that the EPA, in proceeding with this
settlement, "adequately represented the
interests" of these parties. The intervenors"
concerns centered around objections to the remedy
decision (onsite incineration) and a belief that
potential health risks were inadequately
evaluated. The intervenors have appealed the
District Court's decision to the Court of Appeals
for the Fifth Circuit, however, there is no stay of
the District Court's decisions. Consequently, entry
of the consent decree has paved the way for EPA
to begin a long delayed remedial process which
will save the government an estimated $60
million and eliminate a potential threat to
human health and the environment.
Richard C. Schleck,J/a Brook Industrial Park v.
U.S. (D. New Jersey): On January 7, 1991 the
District Court rejected plaintiffs claim for an
alleged taking at its property, the. Brook
Industrial Park Superfund Site in Bound Brook,
New Jersey. The plaintiff refused to grant EPA
access to the property to conduct investigatory
work. Region II issued an administrative access
order under §104(e) of CERCLA. The owner then
filed this lawsuit. The court dismissed the
plaintiffs claims for compensation for an alleged
taking, on two grounds: (1) lack of subject matter'
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FY1991 Enforcement Accomplishments Report
jurisdiction, and (2) failure to state a claim upon
which relief may be granted. The plaintiff's
contention that EPA is bound by the terms of an
old State cleanup order was also rejected. The
court granted the Motion of EPA and its co-
defendant, the U.S, Air Force, to dismiss the case
entirely.
California Gulch Operable Unit 2+ (Leadville.
Colorado): EPA issued three Administrative
Orders for the California Gulch Superfund site
located in the Leadville Mining District,
Leadville, Colorado. The study area covers about
16 square miles which have been impacted by
mining, milling, and smelting activities for over
100 years. The Site contains many mine waste and
smelter waste piles and acid mine drainage. Soil,
ground water, and surface water contamination
from metals in these mining wastes has been
documented.
Under the terms of the first Administrative
Order, EPA required Resurrection Mining Company
to perform certain tasks in support of the
Remedial Investigation (RI) activities for the
site. The RI will identify contaminants of concern
and remedial action alternatives which will be
evaluated in the Feasibility Study and finalized
in the Proposed Plan and the Record of Decision.
Under the terms of the second Administrative
Order, EPA required ASARCO, Inc., to perform
certain studies in support of the RI activities for
the site. The studies require development of Work
Plans and implementation of Work Plans after
EPA approval.
Under the terms of the third Administrative
Order, EPA required the respondent, Hecla Mining
Company, to perform an Engineering
Evaluation/Cost Analysis for the Malta Gulch
mine tailings, to determine the nature and extent
of any releases and any appropriate response
activities at the Malta Gulch tailings. The
Order stipulates that Hecla would "resolve any
remaining liability by agreeing to implement
and/or pay an appropriate share of the cost of
EPA's chosen or likely response action for the
Malta Gulch tailings...." The response action
would expedite remediation of the impacts to
human health and/or the environment resulting
from the Malta Gulch mine tailings.
U.S. v. Chevron ChfiHUcal Co.. et al. (Operating
Industries. Inc. Superfund gite): On September 16,
1991, a Second Partial Consent Decree was entered
resolving claims for the first two operable units
and past costs with an additional 65 parties. The
first decree involved over 100 parties and was
worth over $67 million in site work and past costs.
The second settlement is valued at over $8.5
million, and it includes premiums of nearly $1
million from recalcitrant parties. In addition, the
District Court for the Central District of
California denied a motion to intervene that had
been filed by a non-settlor who sought to delay
entry by challenging EPA's allocation formula.
The non-settlor asserted that its right to
contribution from the settling parties provided a
protectable interest under §113(i) of CERCLA.
The court did not agree and denied the motion.
The Operating Industries, Inc. site is a 190-acre,
former landfill that operated for 36 years,
accepting industrial and municipal waste. EPA
has now, through the two Consent Decrees, settled
with approximately 185 parties for site control
and monitoring and leachate management,
including the construction of an onsite leachate
treatment plant.
In the matter of Chevron U.S.A. and the ATA
Pipeline Company (Albuquerque. New Mexico):
In an innovative first use of authority under
CERCLA, four major petroleum companies and a
pipeline partnership have been ordered to take
actions necessary to prevent interference with an
ongoing Superfund remedial action. On February
8, 1991, Region VI issued a Unilateral
Administrative Order (UAO) under the
authority of CERCLA §106. The Respondents to
the UAO are alleged to be responsible for releases
of petroleum related contaminants which are
threatening to interfere with an ongoing
groundwater cleanup at the South Valley
Superfund Site in Albuquerque, New Mexico.
With this new use of §106 authority, the
Respondents have been brought within the
domain of CERCLA even though they are not all
Potentially Responsible Parties and the releases
in question are petroleum related. The
Respondents are currently in compliance with the
order and are expediting actions to address the
petroleum contamination.
Cinnaminson Landfill (Cinnaminson, New Jersey):
On July 7, 1991, Region II issued a unilateral
administrative order for RD/RA at the
Cinnaminson Landfill to Sanitary Landfill, Inc., a
subsidiary of Waste Management, Inc. The first
operable unit work which the company will
perform under the order, including groundwater
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FY 199J Enforcement Accomplishments Report ,
extraction and treatment, is valued at $20
million. In addition, Sanitary Landfill has
reimbursed EPA about $3.2 million in past costs for
the site.
In the Matter of City Tndustriesr Winter-Park.
Florida: On September 10, 1991 a consent decree
involving the City Industries site in Winter Park,
Florida was lodged in U.S. District Court, Middle
District of Florida. Under the .terms of this
decree, approximately 146 settling defendants
(including approximately 120 de minimis
defendants) agree to "cash out" (Le^, fund all of
the Remedial Action, which is estimated to cost,
over $4 million), to reimburse EPA for all future
response costs, to reimburse EPA for all past costs
incurred since a previous decree in this case
(approximately $117,000), and to pay the long-
term operation and maintenance costs of the
cleanup.
Commencement Bay/Tacoma Tar Fits Superfund
Site. Tacoma. Washington: Following a
complaint filed by the U.S. in FY 1990, six consent
decrees were entered in FY 1991 settling all
government claims under CERCLA Chapters 106
and 107 resulting in over 100% recovery of costs to
the government. EPA obtained recovery of all
costs, implementation of all response actions and
recovery of penalties in this matter. . - ,
U.S. v. Cordflva Chemical Corp..ejt_al. (W.D. MI):
A Unilateral Administrative Order was issued in
Ott/Story/Cordova on February 5, 1991, The
Respondents, Cordova Chemical Company of
Michigan, Cordova Chemical Company of
California, Aerojet General Corporation, CPC
International, Inc., and Dr. Arnold C Ott, were
directed to perform remedial design for the
remedy as described in the Record of Decision
under CERCLA dated September 29,1990, for the
second operable unit associated with the site and
to implement such design through -remedial
action. <. ;
On August 27,1991, after 15 days of trial and the
entry of thousands of exhibits and documents, the
judge of the U.S. District Court issued a 75 page
opinion in favor of the United States, requiring
O-tt/Story/Cordova to conduct a clean-up in
Muskegon, MI, at a cost estimated to exceed $50
million. The judge held the State of Michigan not
liable under CERCLA for clean up activities at -
the site. More importantly, however, the case
provides the government with a very favorable
precedent and guidelines for determining the
liability of parent corporations regarding
compliance with environmental law. The Court
held CPC and Aerojet, the parent corporations,
liable for 'cleaningup after themselves, their
predecessors, and their subsidiaries.
U.S. v. Custony Industrial This case involved
three separate settlement agreements, in the form
of two judicial consent decrees and -one.
administrative agreement. The consent decrees,
lodged on June 20, 1991, were CERCLA §107 cost,
recovery agreements with 34 and 3 potentially
responsible parties (PRPs), respectively, together
reimbursing EPA approximately $1,045,000 for.
removal.costs. EPA also issued an administrative
order on consent for this site, obligating 199 de
minimis generators to reimburse EPA
approximately $419,000. The total sum
recovered, approximately $1.46 ' million,
represents 90% of the costs incurred by EPA during
the removal at this site. In August 1991, the
Department of Justice filed a complaint against
the two recalcitrant PRPs in order to recover the..
remaining ten percent. This case is particularly
noteworthy because it combines some of EPA's
major enforcement themes, i.e., de minimis
settlements and actions against recalcitrant
parties.
U,S_,_v. Dow Chemical Company, et aj, (Casper,
Wyoming): EPA and three PRPs, KNEnergy, Inc.,
The Dow Chemical Company, and Dowell-'
Schlumberger, Inc., reached a settlement for
Remedial Design/Remedial Action at this Site in
Casper, Wyoming. '
* ' - ^ ' .'
The PRPs agreed to pay $5.4 million..in
reimbursement of past costs incurred by EPA at the
Site, including costs associated with the
installation of a municipal water system for.
residents. The PRPs also agreed to implement the
remedy set forth in the ROD issued by EPA 'in
September of 1990. Because the ROD calls for
separate remediation of the two separate ground-
water plumes, the PRPs will perform the work
pursuant to two separate statements of work,
allowing work to proceed in a more rapid, phased
manner. . ''.
0-
In the Matter of Defense Logistics Agency;* On
May 29, 1991, EPA and the Defense Logistics
Agency (DLA) entered into an administrative
consent order pursuant to §104 and §106; of
CERCLA for the removal arid proper disposal'of
70,000 pounds of depleted uranium stored in a
dilapidated building owned by Chemical
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FY1991 Enforcement Accomplishments Report
Commodities, Inc. near DeSoto, Kansas. CCI
purchased the depleted uranium from the Defense
Surplus Sales Office, a department in the Defense
Supply Agency (now DLA) in 1965 and 1966. The
material has been stored at the site for more than
twenty-three years. Due to the weight of the
material, the floor of the building. was in
imminent danger of collapse threatening the
release of the depleted uranium into the
environment. DLA commenced the response action
in July, 1991.
U.S. v. Dow Corning Corporation: On May 22,
1991, a consent decree between the United States
and Dow Corning Corporation for the Howe
Valley Landfill site was entered in the Western
District of Kentucky. Under the decree, Dow
Corning is obligated to' perform or pay for all
remaining cleanup at the site. EPA's selected
remedy consists primarily of excavation of
contaminated soils. Soils contaminated with
inorganics will be disposed of off-site; soils
contaminated with organics will be aerated. Air
and ground-water monitoring are also required as
are certain deed restrictions. Dow Corning agreed
to reimburse EPA for all of its past and future
costs, totaling approximately $154,000.
U.S. v. En trad a Industries. Inc., et al. (Salt Lake
City. Utah): In September, 1991, an RD/RA
consent decree was entered for the Wasatch
Chemical Site in Salt Lake City, Utah. This
decree is a three party agreement among EPA, the'
State, and the settling defendants which requires
the defendants to: 1) reimburse 100 % of past EPA
costs totaling $419,000; 2) pay EPA's future
response costs; and 3) implement the selected
remedy through performance of RD/RA. The
selected remedy includes the use of an innovative
technology, in-situ vitrification.
U.S. v. Environmental Service Group, qt al. (W.
.D. New Yofkj: On September 30 a consent decree
was lodged in District Court in connection-with
the Resolve Manufacturing Superfund site in
Falconer, New York. The five settling defendants,
as well as a number of other companies and
individuals, are PRPs at the site, but refused to
participate in a 1987 settlement pursuant to
which over 100 other PRPs carried out a removal
action valued at about $1 million. Region II-
issued the non-settlors a unilateral
administrative order requiring them to cooperate
and coordinate with the settling PRPs in
performing the removal work. While some
respondents complied with this order, others ,
4-25
including the defendants in this lawsuit did
not. The-.settling defendants in this decree are:
ESG, Custom Muffler Service Center; Inc., Products
Finishing, Inc., Ethan Allen, Inc., and Seco Corp.
These companies agreed to pay all outstanding
EPA costs, in connection with the site, .about
$88,000, plus civil penalties in the' amount of
$40,000 for their violation of -the EPA-
administrative order. EPA is considering what
action to take against the remaining non-
complying PRPs who also refused to join in this
consent decree.
U.S. v. Farbejf. et al. (D. New Jersey); On August
29, 1991 the New Jersey District Court issued a
ruling favorable to the government with respect to
the scope of review of EPA's selection of a response
action. The defendant had requested de novo'
review of the remedy selection, arguing that it
had an inadequate opportunity to participate in
the public comment procedure because it been
notified late that it was a PRP. The court.rejected
the challenge, agreeing with EPA that any
opportunity to comment it might afford the
defendant should be limited to the procedures set
forth at 40 CFR §300.825{c) of the 1990'National
Contingency Plan. The court remanded the matter
to EPA, allowing the defendant to comment as
provided in that rule. The court specified that
comments must be based on information available"
at the time of the original comment period. The
court further held that review of EPA's remedy,
selection will be based1 on the'administrative
record under the standard of review set forth in
§113(j){2) of CERCLA. The decision is significant
in that it is the first time a court has applied 40
CFR §300.825(c), and it represents a narrowing of
the comment opportunity afforded by the same
court in U.S. v. Rohm & Haas Co. in similar
circumstances.
U.S. v. Frola. et al. (D. New Jersey); On
September 27, 1991, a complaint was filed in
District Court against nine individuals and
companies in connection with Quanta Resources
Superfund site in Edgewater, New Jersey. The
defendants are PRPs that refused to participate in
a 1985 settlement pursuant to which more than 60
other PRPs carried out a removal action valued at
about $9 million. Region II then issued"to these
non-settlors a unilateral administrative order
requiring them (1) to cooperate and coordinate-
with the settlors in performing the' removal-
action, and (2) to perform certain additional'
removal work which the settlors were not obliged
to perform. The additional work called for by"
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FY1991 Enforcement Accomplishments Report
this "carve-out" order one of the first of its kind
in the nation included testing and removal of
soil and waste storage tanks, and testing of
Hudson River sediments. The defendants, who
refused to comply with this order are: James Frola
and Albert Von Dohln (site owners), Alcan
Aluminum Corp., Chemical Management, Inc.,
Luzon Oil Co., Petroleum Tank Cleaners, Inc.,
Snyder Enterprises, Inc., Texaco, Inc. and Total
Recovery, Inc., The complaint seeks recovery of
about $617,000 in past EPA expenditures, plus
civil penalties and treble damages. Two other
firms which received the same unilateral order
and also failed to comply previously signed
consent agreements with EPA. Browning Ferris
Industries paid $125,000 and Peabody
International Corp. paid $360,000 in past EPA
costs. These amounts represent more than 10 times
what those companies would have paid had they
chosen to participate in the original settlement
State of Colorado v. Idarado Mining Company:
On October 11, 1990, the United States Court of
Appeals for the Tenth Circuit 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 the District Court for the District of
Colorado on February 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 an amicus curiae brief
seeking to overturn the District Court's ruling
based on the lower court's incorrect interpretation
of the statutory language found in CERCLA
§121(eH2). The United States argued that the
state was not entitled to injunctive relief under
CERCLA §121(e)(2). Relying on the Cadillac
Fairyjew. Cannons, and Akzo Coatings cases, the
Tenth Circuit agreed and held that the language
of CERCLA §106 and §121 do not create an
explicit right to injunctive relief for the states.
In trig flatter qf InterChem: This Administrative
Order on Consent issued pursuant to §106 of
CERCLA was negotiated using the theory of
liability successfully advanced by EPA in the
United States y. Aceto Agricultural Chemicals
case. The site is an abandoned pesticide
formulation facility which had been operated
under several corporate names by several
different parties. Because there were no former
owners or operators apparently capable of
carrying out the necessary response actions, EPA
successfully negotiated an order for removal
actions with a group of nine generator PRPs who
had sent technical grade pesticides to the site for
formulation. The settlement, which was filed,on
June 18, 1991, will foster the use of the Aceto
theory of liability at other such facilities.
U.S. y. I. Jones Partnership et^al. (N.D. ILfc
Through an innovative de minimus settlement
under the Superfund law involving five
administrative orders, combined with persistent
non-settler/non-complier enforcement actions.
Region V EPA obtained full clean-up of the I. Jones
site in Fort Wayne, IN, reimbursement of 90
percent of past costs and substantial §106(b)
penalties. The finances included a $5 million
PRP-conducted final phase of a three phase
removal action, and reimbursement of $2,575,041
in response costs. Following the original de
minimus settlement with 139 generators in
October 1989, the. Region negotiated specific
compiler, ,non-complier, de minimus and
"installment payment" plans with individual
parties. In addition, a cost recovery referral
against the current owners was made to DOJ in
September 1990; in October 1991, the U.S.
amended the filed complaint to include
additional parties. This is the first suit filed in
the Region seeking treble damages and statutory
penalties for noncompliance with the unilateral
removal orders under §106,
E"'ff
IFC y^ Aetna Casualty and Surety Co.: In this
case, the District of Columbia Circuit Court of
Appeals decided that the Eighth Circuit Court of
Appeals misapplied Missouri insurance .law in
Continental Insurance Co. v. NEPACCO. 842 F.2d
977 (8th Cir. 1986). The three judge panel in IPC
held that CERCLA response costs are damages
under Missouri insurance law compensable under a
comprehensive general liability .policy.
Specifically, the court reasoned that a Missouri
court would rely on the common understanding of
the word "damages" and would not impose a
technical meaning. The panel thus agreed with
the federal government,. which participated in
this case as amicus curiae urging the court to find
that CERCLA response costs are "damages"
which must be paid by an insurance carrier.
Kentucky Avenue Site (porseheads. New York):
On June 28, 1991, Region II issued.a unilateral
administrative order for RD/RA at the Kentucky
Avenue Wellfield Superfund site to Westinghouse
Corp. The work which.Westinghouse will; do
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FY1991 Enforcement Accomplishments Report
under the order is an interim remedy valued at
$15 million, and includes treatment of
contaminated ground water. The RI/FS for the
first operable unit at the site identified
Westinghouse as the primary source of
contamination in the portion of the aquifer
addressed by the remedy. Westinghouse agreed, in
a separate administrative consent order, to
perform the RI/FS for the second operable unit.
King of Prussia Site (Win4ow Township, New
Jersey); On April 15, 1991, Region II issued a
unilateral administrative order for RD/RA at
the King of Prussia Superfund site to five PRPs;
Cabot Corp., Carpenter Technology Corp., Ford
Electronics & Refrigeration Co., Johnson-Matthey,
Inc., and Ruetgers-Nease Chemical Co. The work
to be conducted under the order is valued at $15
million, and includes excavation and treatment of
contaminated soils, sludges and groundwater. The
site is an abandoned liquid chemical waste
treatment/disposal facility operated by the King
of Prussia Technical Corp. from 1970 to 1975.
U.S. v. Koppers flpcjustries & Beazer East.
Gainesville. FL: After executing the Record of
Decision for the Cabot Carbon/Koppers Site on
September 27, 1990, EPA issued a Special Notice
Letter to the Cabot Corporation, which was the
past owner of one half of the Site. EPA also
issued Special Notice Letters to Koppers
Industries, Inc. (Koppers) and to Beazer
Industries, Inc. (BEI), which were, respectively,
the current and past owners of the other half of
the Site. Negotiations for a global consent decree
were unsuccessful, as BEI refused to accept joint
and several liability for the groundwater remedy
for the entire Site. However, Cabot continued to
negotiate concerning its half of the Site, resulting
in a Consent Decree which was lodged on
September 12, 1991. Under this Consent Decree,
Cabot agreed to perform the RD/RA on its half of
the Site; as well as to reimburse EPA for over
$416,000 in past costs. Region IV issued unilateral
administrative orders (UAOs) to Koppers and
BEI on March 22, 1991. Those parties are
complying with the UAO as it pertains to work on
the Koppers half of the Site.
ILS. v. Koppers (Oroylllg. CAt On June 12,1991,
EPA and the Department of Justice lodged a
consent decree in the United States District Court
for the Northern District of California. The
consent decree requires Beazer East, Inc., a
potentially responsible party, to perform RD/RA
of the Koppers NPL Site in Oroville, California.
Wood products were treated at the site, resulting
in soil and groundwater contamination by
hazardous substances including cyanide, dioxins
and furans. Beazer has agreed to perform design,
construction, operation and maintenance of a
groundwater and surface soil operable unit valued
at approximately $77 million. The decree also
requires Beazer to pay past costs and future costs
associated with the site.
U.S. v. Helen Kiamer: On February 8, 1991, the
United States District Court for the District of
New Jersey granted the United States' motion to
strike affirmative defenses in the above CERCLA
§107 cost recovery case and issued a lengthy
opinion favorable to the government. Thirteen of
the defendants filed a third-party action against
more than 250 defendants, including 17 local
governments. The defendants asserted that the
United States excluded a class of defendants in
violation of the Constitution when it named only
industrial defendants and not municipalities.
The court found that the Agency's Interim
Municipal Settlement Policy is consistent with
EPA's broad discretion to select defendants and is
rationally related to CERCLA's purpose, and thus
does not violate the equal protection clause of the
Constitution. The court also held that the
Interim Municipal Settlement Policy is a general
statement of policy rather than a rule subject to
the notice and comment requirements of the
Administrative Procedure Act. Response costs for
remediating contamination at the Helen Kramer
Landfill, the number four site on the NPL, are
estimated at $60 million.
Laurel Park Superfund Site: In FY 1991 EPA
entered into a $21 million settlement, whereby 19
potentially responsible parties will perform
cleanup at the Laurel Park NPL Site in
Naugatuck, CT, and reimburse EPA and the State
of Connecticut for past and future response costs. In
addition, to expedite cleanup, EPA negotiated an
agreement whereby the PRPs begin remedial
design activities administratively, prior to the
consent decree being lodged with the court.
Moreover, concurrent with the settlement referral,
the United States filed a CERCLA cost recovery
action for unreimbursed costs against four non-
settling PRPs. This action sends a clear message
to PRPs that recalcitrance in settlement
negotiations has a high price.
U.S. v. Lecarreaux et al. (D. New Jersey): On July
3, 1991, the court granted EPA's Motion for
Summary Judgement in this case which seeks
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FY1991 Enforcement Accomplishments Report
penalties from two PRPs which failed to comply
with a unilateral cleanup order. In 1984 Region II
issued a unilateral order for a removal action at
the Duane Marine site in Perth Amboy, New
Jersey, to about 35 PRPs, including the site owner
and' operator, Edward Lecarreaux. All but
Lecarreaux complied with the order. Some months
later, EPA identified additional PRPs and issued
a second unilateral order requiring these new PRPs
to cooperate and coordinate with the first group of
Respondents in the performance of the removal
action; Again, all but one Lightman Drum Co.
complied. EPA filed suit seeking response costs
and civil penalties from these two non-compliers.
The July 3 decision held the companies liable for
costs and-penalties; a hearing on'the amount, of
penalties was scheduled for November 1991. The
case is notable because it is the first time a court
has ruled that penal ty= liability accrues against
PRPs who fail to comply with an order, even
though other PRPs have elected to comply and
carried out the work in question. , , .
The Lone Fine Cases: U.S. v. Acton Corp.* et aL;
and U.S. v. Armstrong \yorld Industries, et al. (D.
New Jersey): A consent decree was lodged on July
3, 1991, for performance of the RD/RA for
Operable Unit 2 at the Lone Pine site in New
Jersey (the Acton case). The settlement, signed by
some1 118 companies, is valued at about $10.3
million. The RD/RA work for Operable Unit 1,
valued at about $40 million, is also being done by
PRPs under a 1989 settlement. In the Armstrong
case, EPA sued 17 PRPs who refused to join that
earlier settlement, seeking recovery of additional
past costs. 'A settlement with all but one of the
Armstrong defendants was lodged on 'April '29,
1991, providing for payment of $4,4 million
about 95% of EPA's outstanding costs.
Lowry Landfill (Denver. Colorado): The City and
County of Denver and Metro Wastewater
Reclamation District will be conducting the
RI/FS for the Soils and Surface Water and
Sediments Operable Units {Operable Units 4&5)
at the Lowry Landfill site in Denver, CO. These
studies will focus the data collection needed to
characterize the extent of contamination and
contribution of contamination from the soils and
the surface water and sediments to the other
operable units. An Administrative Order on
Consent was signed March 25,1991, and is the last
of-the RI/FSs to-be conducted on the site.1 The
studies are anticipated to be completed by March
1993 at a cost to the Respondents of two million
dollars. , . .......
U.S. v. Marathon Battery (S.D. New York): A
consent decree was lodged on September 27, 1991,
providing for a cash out of $10.85 million for the
costs of the Superfund RD/RA work for Area II of
the .Marathon Battery Site in Cold Spring, New
York. There were two settling parties: Marathon
Battery Company and the U.S. Army. A third
PRP, Gould, Inc., declined to settle. EPA-will
perform the RD/RA work for this Area. The
Army is making an additional payment of
$500,000 to Marathon for past work at the site
which Marathon carried out. EPA plans to seek
recovery of its unreimbursed costs for 'Area II, past
costs for the entire site, and a declaration of
liability for future costs for the entire site,'from
Gould. In addition, EPA is commencing
negotiations with the settling parties for
reimbursement of costs for Areas I and III; ' : %
U.S. v. Mass Merchandisers Inc» Arkwood
Superfund Site (W.P. Arkansas); In June 1991,
Mass Merchandiser's Inc., agreed to conduct the
cleanup under CERCLA at the Arkwood
Superfund Site. This agreement was included in a
Consent Decree requiring implementation of
remedial design and remedial action plus
reimbursement of all oversight and prior response
costs. Mass Merchandisers will implement
treatment involving both soil washing and
incineration at an estimated cost of $12 million.
The Arkwood Superfund Site is a former wood
preserving facility utilizing both
pentachlorophenol (PCP) and creosote processes:' ,
IJ.S, y. MexicCT^Feed anfl Seed Co,, Inc.. James
Covington, individually and_doing business as
Mexico Feed artd Seed Co.. Mary.. Covington,
Pierce Waste Qjl Service Inc.. Jack Pierce, Mid-
MjsgQuri Electrjg Co.. MORECO Energy Inc. (E.P;
Mo.); This cost recovery case provides a ruling
favorable to the government concerning successor
corporation liability. On May 16, 1991, after a
trial on the merits, a judgment was entered for the
United States in the U.S. District Court for the
Eastern District of Missouri, against the
Defendants. In particular, the court held that
Defendant MORECO Energy Inc. was liable as a
successor corporation under a broadened version of
the "mere continuation" exception known as the
"substantial continuity" or "continuity of
enterprise" exception to the general asset
purchase rule which does not impose liability on
a -. corporation purchasing assets for acts "or
omissions of the seller corporation. The Court
awarded EPA a judgment against all defendants
for $1,200,000 in past response costs. '
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FY1991 Enforcement Accomplishments Rep&n
U.S. y. jffidwes^ _$_q|ygAt Recovery f Inc.-. On
Friday, March 22, 1991, the first d§ minirru§
landowner settlement in Region V was lodged in
this case. This settlement with Penn Central
Railroad will result in recovery of $1,2 million.
Trial on enforcement of unilateral administrative
orders is scheduled to begin on May 6, 1991, EPA
has negotiated and lodged in court a sjfi ffiiBJSHS
landowner settlement. The settlement with Penn
Central, a defendant in the Mldco case, provides
a cash payment of $1,150,000. Perm Central
acquired a railroad right-of-way adjacent to the
Midco II NPL site when it came into being in the
late 1970s,
Gold an
-------
: On May 31,
1991, .the U.S. District Court for the RD/RA
Consent Decree between the United States, Dow
Chemical Company, Ashland Chemical, Inc.,
Aristech Chemical Corporation, E.H. Shilling &
Son, and General Contractors, Inc. The Decree
provides for a remedy with an estimated value of
$11 million at the E.H. Shilling & Son Landfill
site near Ironton, Ohio. Significantly for the
Agency, the Decree parallels the model RD/RA
consent decree and contains provisions for
technical impracticability, periodic review,
additional work, and alternative dispute
resolution that may be useful in subsequent
negotiations involving other sites.
U.S. ₯. Schujlkill Metals Corporation. Plant
City, Fk This settlement consent decree for
remedial design/remedial action requires a
conservation easement to preserve and maintain
the wetlands at the NPL Site. This is the first
consent decree in EPA Region IV which provides
for the government's acquisition of a conservation
easement. The easement consists of specific
restrictions on the wetlands to ensure that these
areas remain undisturbed, except as necessary for
the implementation of the remedial action. EPA
will transfer the easements to the State of
Florida after completion of the remedial action.
The State of Florida has formally assured EPA
that it' will accept the transfer of the easement
following completion of the remedial action.
U.S. v. Sharofi Steel Corp.. et ah On November
13,1990, three consent decrees were entered in the
District Court for the District of Utah, Central
Division. The Sharon Steel settlement involved
three cash-outs, under the authority of CERCLA
§104, §106, and §107, totaling over $63 million.
The settlements are embodied in three consent
decrees that resolve the United States' claims
against Sharon Steel Corp., UV Industries and
the UV Liquidating Trust, and Atlantic Richfield
Co. ("ARCO") relating to both the Midvale
Tailings Site and the Midvale Slag Site.
$2,300,000 of the total settlement fund will be
allocated to the Department of the Interior for
purposes of restoring, replacing, or acquiring the
equivalent of natural resources, with the
remainder of the funds to be credited to the
Superfund and earmarked for purposes of the
Sharon Steel Site. An Administrative Order on
Consent (AOO was previously entered between
the U.S. and the State of Utah as a de minimus'
landowner.
U.S. v, Sheller-Globe Corporation (W.D. Mlh On
March 28, 1991, the U.S. District Court for the
Western District of Michigan entered a Consent
Decree under the Superfund Law in U.S; v.-
Sheller-Globe Corporation, et al.. Forty-one
Potentially Responsible Parties (PRPs) signed the
Decree for the Auto Ion Chemical Inc. Superfund
site in Kalamazoo, MI. The settlors agreed to
implement the Remedial Design/Remedial
Action for soil remediation in the first operable
unit and to pay to certain response costs incurred
(and to be incurred) with remediation of the
facility. The estimated cost of remediation
associated with this first operable site is $3.4
million.
Solvent Savers Site (Lincfclgen. New Yorkfc On
May 29, 1991, Region II issued a unilateral
administrative order for RD/RA at the Solvent
Savers site to five PRPs; The American Locker
Group, Bristol-Myers Squibb Co., General'Electric
Co., IBM Corp., and Pass & Seymour, Inc. The
work they will do under the order is valued at
about $29 million. The site was formerly used as
a chemical waste recovery and drum
reconditioning plant. Soils at the site are
contaminated with volatile organic compounds,
metals and PCBs; grotindwater is also-"
contaminated. The remedy includes ground water
treatment, and removal and treatment or off-site
disposal of contaminated soils.
. I' -
ILS. v. $ynjex: The District Court of the Eastern
District of Missouri entered a consent decree
between the United States and Syntex on
December 31,1990, obtaining work valued at $100
million. The decree calls for Syntex to do the bulk
of the work at the Missouri Dioxin sites including
excavating and burning in a portable incinerator
the dioxin-contaminated soil. The decree also
provides that Syntex will pay EPA $10 million in
past costs.
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US. v. Town of Oyster Bay (EJ3. New York): On
February 22, 1991, a consent decree was entered
regarding the Syosset Landfill Superfund Site.
Under the decree the Town will implement the
remedial action selected by EPA for this
municipal landfill. The Town will cap the
landfill using a geosynthetic membrane, and will
additionally reimburse EPA for oversight costs.
The value of the settlement is estimated at $26.3
million,
Union Chemical Supprfund Site: On August 7,
1991, EPA and the State of Maine reached
agreement with 60 potentially responsible parties
at the Union Chemical Co. Inc. Superfund Site in.
South Hope, Maine, Under the terms of the
settlement, the 60 PRPs will perform the remedy
selected in EPA's record of decision, and will pay
the United States a total of $2.8 million towards
EPA's future oversight costs and in reimbursement
of EPA's past costs. The settlement also allows
the PRPs to undertake optional treatability
studies for an alternative remedy for treatment of
contaminated soils. In addition, EPA approved a
dg minimis settlement with an additional 270
PRPs, who will contribute approximately $3.1
million towards performance of the remedy. The
settlements constitute a 96% recovery of EPA's
remaining claims with respect to the site.
Moreover, also regarding the Union Chemical Site
in FY 1991, in U.S. v. Union Research Co. Inc. et al.
(D, Maine), EPA recovered significant penalties
against three defendants who failed to respond in
a timely way to EPA information requests issued
under §104 of CERCLA and §3007 of RCRA. The
three defendants, Ethan Allen Inc., Spencer Press
Inc., and IMC Magnetics Corp, (New Hampshire
Division) agreed to pay penalties of $21,000,
$15,000 and $7,500, respectively, for failing to
respond in a timely way to information requests
issued in 1987 concerning their shipments of
hazardous substances to the Union Chemical Co.
site.
United Agri Products, Inc. (North Dakota): A
Consent Decree settling recovery of $280,000 in
past response costs was entered with the United
States District Court of North Dakota,
Northwestern Division, on April 8, 1991. United
Agri Products, Inc., agreed to reimburse the
Superfund for costs incurred by Region VIIFs
Emergency Response program in responding to and
overseeing the clean up of contamination resulting
from a fire at a pesticide warehouse in Minot,
ND, which occurred in April 1987.
U.S. v. White Chemical Company; On October 2,
1990, Region II and the Agency for Toxic
Substances and Disease Registry conducted an
inspection of the White Chemical Company in
Newark, New Jersey and determined that the
site conditions were so dangerous that it was
necessary to shut down the factory and evacuate
the site. White Chemical refused to comply with
EPA's request and Region II requested the
Department of Justice to file a complaint for a
temporary restraining order (TRO). On October 3,
1990, White Chemical filed a motion for show-
cause order in bankruptcy court in an effort to
preempt EPA's TRO. On October 5, 1990, the
Bankruptcy Judge ordered White Chemical to
leave the site immediately. The United States
filed its motion for a TRO in federal district court
on October 9,1990. On that day, the court granted
the United States' motion for a TRO; a
preliminary injunction was subsequently granted,
Superfwnd Information Request
Enforcement Initiative
Enforcement of CERCLA information
requests remains a high priority of the Agency's
Superfund enforcement program. Compelling
compliance with such requests helps to generate
acceptable settlement offers from PRPs. PRPs
will, for example, be more willing to settle when
they are assured that other parties are not
escaping participation by ignoring EPA's
information requests or filing incomplete
responses.
The Agency launched a national initiative
to emphasize enforcement of CERCLA §104(e)(2)
requests in September 1989. This emphasis was
reiterated in FY 1S91 as the Agency not only
continued to litigate previously filed cases but
also filed seven additional cases of this type,
which are summarized below.
U.S. v. AIco Tool Supply Company The
complaint, filed February 12, 1991, seeks civil
penalties and injunctive relief for the defendant's
failure to comply with Region V's request for
information relating to the Conrail Railroad site
in Elkhart, Indiana.
U.S. v. Ernest Barkmarc The complaint, filed on
November 15, 1990, seeks an injunction ordering
the defendant to supply the requested
information as well as civil penalties for his
failure to respond to EPA's request. The defendant
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FY1991 Enforcement Accomplishments Report
failed to comply with Region Ill's request for
information regarding the Walsh Landfill site.
U.S. y. Builder's Hardware finishers. Inc.: The
complaint, filed November 19, 1990, seeks to
compel "compliance with Region DCs request for
information and asks the court to assess penalties
for the defendant's failure to respond to the
request regarding the BHFI electroplating site in
Los Angeles, California.
U.S. v. Pacific Intermediate. ITU;, .and Benjamin L.
Adams.: The complaint, filed July 16, 1991, asks
the court to order the defendants to comply with
Region IX's request for information as well as to
assess penalties for the defendants'
noncompliance.
U.S. v. Frattec The court entered a default
judgment against the site operator on October 10,
1990. The judgment included a $50,000 penalty for
the defendant's failure to respond to Region IX's
information request. This is the second largest
penalty ever assessed for noncompliance with a
CERCLA information request.
U.S. Y, Pretty Products,. Inc.. et aL The U.S. filed
a complaint on January 28, 1991, seeking civil
penalties and injunctive relief for the refusal of
Pretty Products, Inc. and its corporate parent,
Lancaster Colony Corporation, to supply certain
requested information relating to the Coshocton
City Landfill site in Ohio.
U.S. v. Union, Research Co.. Inc^et al; The
Agency recovered penalties from three parties
who failed to respond in a timely manner to
Agency information requests, issued pursuant to
CERCLA §104(e) and RCRA §3007, regarding the
Union Chemical Company site in Maine. The
three defendants, Ethan Allen Inc., Spencer Press
Inc, and IMC Magnetics Corp. {New Hampshire
Division) agreed in a settlement with Region I to
pay penalties totaling $ 43,500.
Supetfund Enforcement Lead Initiative
As part of an Audi lead initiative, EPA
and the Department of Justice filed six
complaints and lodged two consent decrees' under
CERCLA. These Superfund enforcement actions
involve various sites across the country and over
a hundred potentially responsible parties.
Together, the six complaints request
reimbursement of approximately $10 million in
Superfund money that EPA spent on cleanup
actions at six sites where lead was a contaminant
of concern. EPA's Superfund cleanup actions
helped reduce lead contaminated' graundwater, t
treat lead contaminated surface and subsurface
soils, and eliminate the airborne threat of lead
contaminated dust to nearby residences. These
Superfund enforcement actions are designed to
support EPA's overall enforcement effort to
target lead, a highly toxic metal, and reduce
lead exposure from Superfund Sites.
Lead Cases
In the Matter of ASARCO/East Helena
Superjund Site: EPA entered into -an
Administrative Order on Consent with ASARCO,
the potentially responsible party (PRP) at this
Site on July 19,1991. Under the Order, ASARGO
is removing lead-contaminated soil fronri schools^
daycare centers, yards, parks, playgrounds and
unpaved streets and alleys.The ASARCO/East
Helena Superfund Site occupies eighty acres arid
is located in East Helena, Montana. ASARCO
Incorporated (Asarco) owns and operates a
primary lead smelter in East Helena, Montana.
During the 102 years of operation of the smelter,
both stack and fugitive emissions have" been
released into the Helena Valley. As an operating
smelter, the plant's air emissions are undergoing
air quality State Implementation Plan' (SIP)
review and revision by the state of Montana. The'
smelter is about one quarter mile from residential
areas of East Helena. About half of the yards,
playgrounds and parks in East Helena have more
than 1,000 parts per million (ppm) lead in their
surface soils. Natural background soils in the area
contain 12-20 ppm lead. "'
The site has three separate operable units (OUs).-
The first OU was addressed in July 1990. "The
second operable unit will address the removal of
lead-contaminated soil from residential 'areas
such as yards, parks, playgrounds, and unpaved
streets and alleys. EPA, in conjunction with
ASARCO and the Montana Department of
Health and Environmental Sciences, believes'
that the removal of highly contaminated lead
soils is the most effective way to lower exposure
to lead in East Helena. The removal action'is
expected to take several years to complete.
U.S. v. Atlas Lgderer. On July 31, 1991, the
Department of Justice filed a complaint in the
United States District Court for the Southern
District of Ohio under CERCLA. The complaint
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FY1991 Enforcement Accomplishments Report
seeks reimbursement of $1,2 million in Superfund
monies expended at the Site in connection with
EPA response actions and requests a declaratory
judgment on liability for future expenditures.
The United Scrap Lead Superfund Site is located
in Troy, Ohio and is about twenty-five acres in
size RI/FS was completed in August 1988 and the
ROD was signed on September 30,1988. The ROD
requires excavation and on-site treatment of
battery casings, excavation and on-site treatment
of surface soils containing lead concentrations
greater than 500 parts per million (ppm),
demolition of structures, monitoring of surface
water, air and groundwater, and construction of
new well. Remedial actions at this Site will
involve an innovative soil washing technique.
U.S. v. Berks Associates. Inc.. et al On July 31,
1991, the Department of Justice filed a complaint
in the United States District Court for the Eastern
District of Pennsylvania seeking reimbursement of
more than $5 million in Superfund money
expended for past response costs and a declaratory
judgment on liability for future response costs
pursuant to CERCLA §104, §106, §107 and §113.
The Douglassville Disposal Superfund Site is a
defunct waste oil processing facility located in
Douglassville, Pennsylvania. The site consists of
approximately 50 acres located along Highway
724 on the southern bank of the Schuylkill River.
The site is approximately three miles northwest
of Pottstown and 11 miles southeast of Reading
and is;; almost; entirely within the 100 year
floodplain,of(trie Schuylkill River. The facility
consists!>of\ a -.waste oil processing area in the
southern portion of the site and numerous other
areas used for waste disposal. These disposal
areas included two large lagoons that were once
filled with waste oil sludge, an oily filter cake
disposal area, an oil drum storage area, an area
where waste oil was landfarmed into the soil,
the former processing/tank farm area, a small
backfilled lagoon, an old incinerator, and an area
of scrap metal and tanks.
A second Record of Decision, representing the first
operable unit ("OU1") at the site, was signed on
June 24, 1988. The remedial action selected
consisted of removing liquids and sludges from
various areas at the site and transporting them
off-site for incineration. In addition, the former
processing area was to be dismantled and
uncontaminated tanks sold for scrap. Lastly,
provisions were made for the disposal of
contaminated and uncontaminated rubble at both
on-site and off-site locations.
U.. v. Este of Loyie M.
et ah On July
31, 1991, the Department of Justice; filed a
complaint in the United States District Court for
the Eastern District of Pennsylvania seeking: (i) ,
injunctive relief pursuant to CERCLA §104(e) for
site access for EPA authorized representatives to
effect remedial activities; (ii) reimbursement of
about $1 million in Superfund money spent on
response costs at the site; and (iii) a declaratory
judgment on liability pursuant to CERCLA §113(g)
for further response costs in connection with the
site.
The Hebelka Auto Salvage Yard Superfund Site
occupies about 20 acres of land adjacent to and
north of Old Route 22 in Weisenburg Township,
Lehigh County, Pennsylvania, approximately 9
miles from Allentown. During the 1950s, 60s, and
70s, the property was used as an automobile
junkyard at which battery salvage operations
took place. Over time, large piles of battery
casings were accumulated at the Site. On
December 15, 1985, an EPA Field Investigation ,
Team site inspection of the property revealed
soils downgradient from the battery piles
contaminated with high amounts of lead and
chromium. Three homes are immediately
adjacent to the property.
ILS. v. NL Industries, et aL- On July 31, 1991, the
Department of Justice filed a complaint in the
United States District Court for the Southern
District ;of " Illinois seeking enforcement of
Unilateral Administrative Orders (UAOs) issued
under CERCLA §106 and reimbursement under
CERCLA §107. .
The NL IndustriesXTaracorp Superfund Site is
located in Granite City, Illinois. The primary
source of contamination at this site is a secondary
lead smelter that operated from the 1903 through
1983. Uncontrolled air emissions have caused the
lead contamination to migrate off-site, with lead
being distributed throughout the surrounding
community. EPA signed a Record of Decision on
March 30, 1990, which required the cleanup of
contaminated residential soils to 500 parts per
million (ppm) lead. About 1,200 residences in and
near Granite City, Madison, and Venice, Illinois
are to be cleaned at an estimated cost of over $28.5
million dollars.
On November 27, 1990, the Region issued forty-
three UAOs to the potentially responsible parties
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FY1991 Enforcement Accomplishments Report
PRPs at this site and requested that they
commence remedial action. After a period of
negotiation, the PRPs refused to comply with the
orders. EPA's complaint requests that the PRPs
reimburse EPA's past costs, imposition of
penalties and punitive damages for failure to
comply with the UAOs, and injunctive relief to
require the defendants to implement the remedial
action.
U.S. v. Peter Gull and N.L. Industries On July 31,
1991, the Department of Justice filed a complaint
in the United States District Court for the
Southern District of California to recover $2.5
million in Superfund money, EPA is also
requesting the court impose punitive damages and
penalties of more than $7 million for the
defendants' failure to comply with a UAO,
The B & H Battery Site is 2.8 acres in size and is
located in a mixed residential and open livestock
area in Norco, California. The former site
operator bought old batteries and refurbished
them. However, a number of batteries were not
refurbished and the operator either dismantled
the batteries or sold them intact to scrap metal
yards and two lead smelters. Dismantled
batteries were broken open and the waste battery
acid was drained directly onto the ground. Lead
contaminated battery pieces were also scattered
over the Site.
EPA issued a UAO to the PRPs at the Site that
required the PRPs to remedy the lead
contamination and commence Site cleanup. The
PRPs refused to fully comply with the order, thus
forcing EPA to take over response actions at. the
Site and incur costs of several million dollars.
Municipal Initiative
On July 17, 1991, EPA Administrator Reilly
announced an initiative on municipal liability,
EPA committed to develop national guidelines
for allocating costs to municipal solid waste
fMSW), convene a national conference to discuss
cost allocation issues (which was subsequently
held October 10 & 11,1991), and develop a model
settlement document for municipalities that
have generated or transported MSW to
Superfund sites. The October conference,
involving a cross-section of all affected private
and public sectors, discussed the problems in
allocating costs and a wide variety of creative
possible solutions. The guidelines will be used to
limit the number of third party suits brought
against local governments that have contributed
waste to Superfund landfills,
Municipal Cases
U.S.. et al. v. Acushrtet Co., et ah In June 1991, the
United States District Court for the District of
Massachusetts entered a CERCLA §106 and §107
consent decree. Under the consent decree, fourteen
potentially responsible parties have agreed to
conduct the remedial design, remedial action, and
operation and maintenance for thirty years at the
First Operable Unit. The present value of these
activities is estimated to be $10.5 million. The
settlers have also agreed to reimburse the United
States for: (1) 100% of the United States' future
oversight costs for the first five years of the
remedy, and 50% thereafter, up to a total of $1.5
million; and (2) past costs of $620,000.
U.S.. et al. v. Simpson Tacoma Kraft Cov et ak
On June 24, 1991, a complaint was filed and a
proposed consent decree in the above referenced
case was lodged with the United States District
Court for the Western District of Washington.
The consent decree is designed to settle the
enforcement action under CERCLA §106 and. §107
at the St. Paul Waterway Problem Area of the
Commencement Bay , Nearshore/Tideflats
Superfund Site. The complaint also includes a
claim for relief under §311 of the Clean Water
Act, and the consent decree contains a covenant not
to sue under that provision of the statute.
The consent decree requires the potentially
responsible parties (PRPs) to assume
responsibility for monitoring the effectiveness of,
a cap placed over contaminated sediment
pursuant to a previous consent decree entered into
with the State of Washington. The PRPs also
agree to reimburse the United States for: (1) all
past costs through the date of the Record of
Decision (ROD), which total $354,536; (2) 60% of
EPA's oversight costs from the date of the ROD
through the date of entry of the consent decree;
and (3) all future oversight and response costs.
The consent decree also settles claims for natural
resource damages by the National Oceanic and
Atmospheric Administration, the Department of
Interior, the State of Washington, the Puyallup
Tribe of Indians, and the Muckleshoot Indian
Tribe.
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FY1991 Enforcement Accomplishments Report
Prospective Purchaser Agreements
Indfan Bend Wash Superfund Site (South),
Teqipef Arizona On September 27, 1991, the
Department of Justice concurred in a Prospective
Purchaser Agreement for this site. The Agreement
pertains to the Arizona Department of
Transportation's (ADOT) proposal to construct a
freeway through the northern portion of the
South Indian Bend Wash Superfund Site (SIBW)
in Tempe, Arizona.
The Prospective Purchaser Agreement provides
the ADOT with a covenant not to sue under
CERCLA §106 and §107 and RCRA §7003 for any
present contamination on or under the proposed
freeway portion of the SIBW site. ADOT has
agreed to conduct response activities on the
freeway portion of the SIBW site worth over $1.1
million. In addition, ADOT also grants EPA an
irrevocable right of access to the Freeway
Property, upon reasonable notice and at reasonable
times, for the purpose of monitoring compliance
with the agreement and undertaking response
actions at the SIBW site.
In _t|te Matter of Bankamerica Corp., et al.; On
May 9, 1991, the Department of Justice concurred
in the above referenced Prospective Purchaser
Agreement The Agreement pertains to the
purchase of the Pick Foundry property at the
Mouth of City Waterway Problem Area of the
Commencement Bay Nearshore/Tideflats
(CB/NT) Superfund Site. The Agreement
provides the Settling Parties, and any successors
in interest, a covenant not to sue for the sediment
contamination at the Mouth of City Waterway
Problem Area. The Settling Parties have agreed
to pay the United States $350,000 and perform
cleanup activities at the Pick Foundry Property.
Federal Facilities - Superfund/RCRA
Cra> Orchard: On September 13, 1991, the
Regional Administrator signed a Federal Facility
Agreement under CERCLA §120 that provides
remedial action at the Crab Orchard National
Wildlife Refuge. The other signatories are the
Department of the Interior, the Department of
the Army, and the Illinois Environmental
Protection Agency. It is the first CERCLA Section
120 agreement to include more than one other
Federal agency as a PRP. It is also the first
CERCLA §120 agreement to provide for private
party participation in remedial activities
pursuant to §120(e)(6) and §122 of CERCLA.
In the Matter of Dyess Air Force Jjase. Abilene.
lexas; On September 28, 1990, EPA issued a
Notice of Non-compliance (NON) against the
facility citing improper waste determination,
inadequate closure plan, inadequate ground water
monitoring, improper management of land
disposal restricted wastes, and other violations
including non-compliance with an Administrative
order issued by the state on February 16,1988. On
September 4,1991, a separate NON was issued for
leaking underground storage tanks. During
negotiations, there was agreement that the RCRA
Federal Facility Compliance Agreement should
be revised to include the UST order requirements.
The final FFCA was signed by the facility on
September 12, 1991. The FFCA requires
comprehensive assessment of ground water
contamination, remediation, and implementation
of procedures to bring the facility into compliance
with RCRA.
Femald Federal Facilities Agreement (Eernald.
Qblol: On September 20, 1991, the Regional
Administrator signed an Amended Federal
Facilities Agreement between U.S. EPA and the
Department of Energy (DOE) for the clean-up of
the Feed Material Production Center in Fernald,
OH, For the first time, DOE has acknowledged
EPA's authority to assess stipulated penalties,
noting RI/FS submittals are inconsistent with
CERCLA and the National Contingency Plan.
The agreement, which utilizes innovative risk
assessment techniques, requires DOE to implement
remedial action, pay $100,000 in penalties, and
perform supplemental environmental projects
worth $150,000.
In tihyg J^t&ttcr of theFormer !frjfihra.slc3. Qrcttiiincs
Plant: In September 1991, EPA signed an
agreement with the State of Nebraska and the
U.S. Department of the Army covering cleanup of
the former Nebraska Ordnance Plant, located
near Mead, Nebraska. The former Defense
Department facility, much of which is now
occupied by the University of Nebraska's
Agronomy Research Center as well as several
private landowners, has contamination in both
soil and ground water from the Defense
Department's handling of explosives and solvents
at the site. The interagency agreement pursuant
to §120 of CERCLA covers investigation and
cleanup by the Army over approximately five
years.
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Fort JP evens - Sudbuiy Training Annex and Fort
Deveqs: EPA entered into Federal Facilities
Agreements {FFA) with the Army for these two
facilities in May 1991. The FFAs address the
investigation, development, selection, and
implementation of response actions for all
releases or threatened releases of hazard
substances at the installations. A site specific
Master Environmental Plan will be appended to
each FFA to serve as a detailed comprehensive
plan for the work to be performed pursuant to
CERCLA.
LoringAir Force Base: EPA, the state of Maine,
and the Air Force entered into a FFA under
CERCLA §120 on January 30, 1991. Loring is
located in the north of Maine in a very rural area.
Loring was selected for closure pursuant to the
1990 Base Closure and Realignment Act and is
scheduled to close September 30,1994. Hazardous
wastes generated on the base include waste oils,
fuels cleaned from aircraft and vehicles, spent
solvents, polychlorinated biphenyls, and
pesticides. EPA is committed to overseeing the
remediation of the contamination at the base
pursuant to the terms of the FFA,
Naval Industrial Reserve Ordnance Plant: EPA,
the Minnesota Pollution Control Agency and the
Navy entered into a CERCLA §120 FFA which
became effective June 7, 1991. The Navy will
undertake work necessary to implement the
September 1990 ROD for ground water remediation
at the facility, conduct RI/FS work as needed to
characterize the source of groundwater
contamination, and remediate soils on site. The
FFA also provides mechanisms to conduct other
response actions and CERCLA-mandated five
year reviews, as necessary.
Pease, Air Force Base Superfund Site: On April 24,
1991, EPA, the Air Force, and the State of New
Hampshire signed an Interagency Agreement for
the Superfund cleanup at Pease Air Force Base in
Portsmouth, New Hampshire. Pease is an NPL
Site under CERCLA. The Interagency Agreement
contains precedent-setting provisions which
ensure that the cleanup will be unimpeded by
closure and redevelopment, while at the same
time allowing those activities to take place,
Rocky Flats Plant: A Federal Facility
Compliance Agreement (FFCA) was signed by
EPA and DOE on May 10, 1991. The FFCA
addresses storage prohibition violations of the
land disposal restrictions program of RCRA for
certain mixed wastes at the Rocky Flats Plant..
These wastes are prohibited from land disposal
without prior treatment and can not be stored
except for the sole purpose of accumulating.
sufficient quantities of waste as,are necessary for
the proper recovery, treatment or disposal.'
However, no treatment capacity nor treatment
technologies exist at this time to handle these
wastes. The purpose of the Agreement is to have
DOE address the storage violation by getting
treatment technologies developed and
operational.
Savannah River_Sitei On March 13, 1991, EPA'
signed a RCRA FFCA with DOE to address RCRA
Land Disposal Restriction issues at the
Department of Energy's (DOE's) Savannah River
Site (SRS) in Aiken, South Carolina. The FFCA
was' negotiated because DOE is storing wastes at
SRS which are prohibited from land disposal.
The land disposal restrictions program prohibits
the land disposal of certain wastes unless pre-
treated using specific technologies or- to specified
treatment standards. For a number of prohibited
waste streams at SRS, no operational treatment .
systems exist The storage of these wastes
constitutes a technical violation of the land
disposal requirements of RCRA. This FFCA
contains an important commitment on behalf of
DOE to develop, construct and operate
technologies to treat radioactive mixed waste
streams and to address the related waste
management issues associated with those waste
streams at SRS.
Steamtftwn National Historic Site (Scrantoiy
PA): On September 30, 1991, Region HI issued a '
Notice of Noncompliance, Compliance Schedule
and Notice of Necessity for Conference (NON) to
the United States Department of the Interior,
National Park Service for violations of the
Resource Conservation and Recovery Act and the'
Pennsylvania. Solid and Hazardous Waste
Management Regulations at the Steamtown
National Historic Site in Scranton, PA. The NON
cites the respondent for, among other things,
accumulating more than 1000 kilograms of
hazardous waste at the facility without a permit
or interim status, storing hazardous waste at the
facility without a permit, storing open containers
of hazardous waste at the facility, and failing to
have the prescribed containment system in trie
facility's container storage area. The Region
hopes that an ensuing Federal Facility
Compliance Agreement will resolve long
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FY1991 Enforcement Accomplishments Report
outstanding PCB problems.
In the Matter of U.S. Department of the Army -
Ft. Riley. KS: A CERCLA §120 Interagency
Federal Facility Agreement between the U.S.
Department of the Army, the Kansas Department
of Health and Environment (KDHE) and EPA,
Region VII, became effective in June, 1991
following' 45 days of public comment. This
Agreement requires the Army to conduct an RI/FS
and select and perform appropriate remedial
actions under KDHE and EPA oversight and/or
approval at the Fort Riley Kansas NPL Site.
Addressing the entire facility, this Interagency
Agreement requires the Army to investigate and
remediate all known and suspected areas of
contamination which resulted from the historical
disposal practices at the facility including seven
solid waste landfills and surface areas.. Each..
discrete area of contamination will be addressed
as operable units under the agreement. There was
substantial public opposition to this agreement,
and the Region engaged. in extensive public
education and outreach. The primary area of
concern to the public, the 4 square mile impact
zone, will be included in the RI/FS.
In the ^flatter of U.S. Department of Energy.
Pantex ' Plant. Amarlllo. Texas: The -first
corrective action order under RCRA to be issued by
EPA Region VI to a Department of Energy (DOE)
facility was issued on December 10, 1990, to the
DOE Pantex facility at Amarillo, Texas. The
order includes a Corrective Action Plan which
outlines timeframes, scope of corrective action
activities during interim measures, RCRA
Facility Investigation (RFI), corrective measures'
and corrective measures implementation phases.
The proposed order "alleged that hazardous
waste constituents were land disposed via unlined
ditches, playa lakes, and/or the on-site sanitary
landfill. Wastes have migrated into the
underlying Ogallala Formation which contains
the Ogallala aquifer, one of the most productive
and extensive aquifers in the United States. The
final order provides for the cessation of land
disposal of certain waste streams, sampling and
analysis, submission of interim measures reports
and recommendations, along with. RFI and
corrective measures requirements.
Warren Aii Force Base On September 25, 1991,
EPA, the Air Force, and the State of Wyoming
entered into a FFA under CERCLA §120 for the
Warren Air Force Base; Waste generated at the
facility has consisted primarily of spent solvents
from equipment cleaning and various maintenance
operations. The Air Force also maintained an
acid well used for spent battery acid disposal.
Five landfills are located at the facility and
these hold various non-hazardous and hazardous
wastes. Two fire protection areas involve
extensive use of various fuels and combustible
materials for fire training exercises. Both areas
are now closed and were replaced by a third. The
agreement calls for the investigation and cleanup
of the facility.
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 the past
fiscal year, an aggressive enforcement program,
including both civil judicial and administrative
actions, emphasized multi-media coordination
and targeted initiatives. With a new RCRA
civil penalty policy "in place, the RCRA
enforcement program will seek increased
penalties and economic sanctions, while
continuing to encourage settlements incorporating
pollution prevention and waste minimization
goals.
NATIONAL INITIATIVES
Land Ban Initiative
On February 22, 1991, EPA and the
Department of Justice announced eight judicial
and 20 administrative actions to enforce the
Land Disposal Restrictions (LDR) of RCRA. The
Land Ban Initiative was well-publicized and
should play a significant role in deterring future
LDR violations. EPA Administrator William K.
Reilly underscored the importance of these
enforcement efforts stating that "Itjhese
enforcement actions are part of a continuing
nationwide campaign by EPA and the Justice
Department to stop people from illegally putting
hazardous wastes in the ground. The restrictions
are intended to significantly reduce the nation's
reliance on land disposal of hazardous wastes in
order to protect ground water and minimize risks
of exposure to hazardous wastes."
As part of the Land Ban initiative, a $1,85
million consent decree was lodged with E.L Du
Pont de Nemours in federal district court. The
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consent decree resolved certain alleged past
violation of the land disposal restrictions
provisions at Du Font's Chambers Works facility
in New Jersey, It also provided for an
independent compliance audit and pollution
prevention measures. Several other significant
cases were filed as part of the initiative. The
administrative cases sought a total of over $3.5
million in penalties against a variety of
companies, including BF Goodrich and Ciba-
Geigy. The judicial cases included actions
against Grumman St. Augustine Corp., National
Rolling Mills, and Protect) and a multimedia
enforcement action under RCRA and the Clean
Water Act against Columbia Manufacturing.
U.S. v Gp|imtan. St. Augustine, FL: Grumman -
St. Augustine Corporation's (GSAC) business
consists of stripping, painting and refurbishing,
aircraft. GSAC generates two major F002 waste
streams, wastewater treatment sludge and paint
chips. The complaint alleges that after
November 8,1986, GSAC violated LDR by failing
to determine if these waste streams were
restricted {40 CFR §268.7(a)} and failing to
provide the required notice and information to the
disposal facility {40 CFR §268.7(a)}.
U.S. v. NatJQpal Rolling Mills, Incj A judicial
complaint was filed on February 22,1991, alleging
multiple RCRA violations by National Rolling
Mills, Inc. ("NRM"), Paoli, PA. The violations
alleged in the complaint included: storage of
drums of land ban restricted hazardous waste on-
site for more than one year; failure to maintain
on-site copies of notifications and certifications
for off-site shipments of restricted hazardous
waste; failure to notify off-site treatment or
storage facility of applicable treatment
standards for shipments of restricted hazardous
waste; and failure to include waste minimization
description efforts in their 1990 Biennial (both
treatment, storage and disposal and generator)
Reports.
U.S. v, MTD Products Inc. and Columbia
Manufacturing Co. Inc.: On February 22,1991, the
United States filed a multi-media civil action for
penalties and injunctive relief against Columbia
Manufacturing Co. Inc., the present facility owner
and operator, and MTD Products Inc., the
facility's prior owner and operator, under RCRA
and the CWA. Columbia manufactures bicycles
and school furniture at its factory in Westfield,
MA. EPA multi-media inspections of the
Columbia facility disclosed 29 violations of
federal and Massachusetts RCRA regulations at
the Columbia site, as well as significant
violations of the CWA by Columbia and MTD
Products Inc. Among other matters, the complaint
focuses on two unlined surface impoundments at
the facility which were used as part of its
wastewater treatment facilities. Metal
hydroxide sludge (waste from its electroplating
operations) was routinely pumped into these
impoundments for permanent disposal until May
1983. Analysis of soils in and around these
impoundments detected significant levels of
cyanide. Analyses of groundwater samples in the
vicinity of these impoundments indicate
significant levels of several hazardous wastes,
including chromium, cadmium, trichloroethylene
and volatile organic compounds (VQCs).
U.S. v. E.I. dti Pont de Nemours & Co. (Chambers
Works): The United States entered into a
settlement agreement with E, I, du Pont de
Nemours ("Du Pont") in this RCRA enforcement
action focused on New Jersey's largest hazardous
waste treatment and disposal facility. On May
22, 1991, the U.S. District Court for the District of
New Jersey entered a consent decree settling this
RCRA §3008 case. The consent decree was filed .
with the court concurrently with a complaint on
February 22, 1991. The settlement resolves certain
past LDR violations that the United States
alleges occurred at the company's Deepwater,
New Jersey facility, known as "Chambers Works."
Du Pont violated the LDR provisions of RGRA by
unlawfully disposing of corrosive acids and toxic
solvent wastes at the Chambers Works, and by
violating related LDR testing, waste analysis ,
and. record keeping provisions. The consent decree .
requires Du Pont to pay a $1.85 million penalty to ;
the United States. In addition, Du Pont is ,
required to conduct an environmental compliance
audit and pollution prevention study pursuant to ,
the settlement. . -
U.S.
Prteccion. Tecpica
Inc.*
Proteccion Tecnica Ecologica, Inc. ("Proteco") is a
hazardous waste treatment, storage and disposal
facility located in Puerto Rico. Proteco allegedly
violated eight separate provisions of a consent
decree that it had previously entered into with
the United States to address alleged violations of
RCRA at its facility. Additionally, Proteco
allegedly violated 16 requirements, under RCRA's
"interim status" provisions .for hazardous waste
facilities operating prior to the issuance of a
permit. . Three of these interim status claims
allege violations of the LDR requirements:
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Proteco allegedly failed to retain appropriate
records from generators who shipped LDR wastes
to its facility; Proteco allegedly failed to amend
its Waste Analysis Plan to incorporate LDR
requirements; and Proteco allegedly stored LDR
wastes at its facility for more than one year for
purposes other than the accumulation of
quantities necessary to facilitate proper recovery,
treatment or disposal, Proteco lost its interim
status to operate on May 15, 1990. In this action,
the United States is seeking injunctive relief and
civil penalties of up to $25,000 per day for each
violation of RCRA, and stipulated penalties and
injunctive relief for violations of the consent
decree.
Lead Initiative
On July 31,1991, 20 RCRA cases (12 judicial
and S administrative) were filed as part of a
multi-media initiative to enforce existing laws
and regulations aimed at reducing lead exposure
to the public and the environment. A total of 36
(24 judicial and 12 administrative) actions were
filed under six environmental statutes the first
time a specific pollutant was targeted for
multimedia enforcement action. The RCRA cases
in the initiative were truly multi-media,
addressing lead contamination in soil, water and
air.
U.S. v. American Brass. Inc., (M.D. Ala.): On July
31, 1991, a civil Complaint was filed against
American Brass, which owns and operates a
secondary brass smelting facility in Headland,
Alabama. The company was cited for violations
of the RCRA Land Disposal Restrictions
prohibiting placement of hazardous wastes
which contain lead (D008) in excess of the
regulatory treatment level for that metal. The
lawsuit seeks injunctive relief requiring
compliance with LDR requirements and
prohibiting further operation until American
Brass can assure EPA that it can operate in
accordance with RCRA. Simultaneously, a Motion
for Contempt was filed in the Middle District of
Alabama regarding violations of a Consent Decree
lodged against American Brass. This Motion
sought injunctive relief requiring American Brass's
compliance with the Consent Decree requirements
and prohibiting further operation until the
company can assure EPA it can operate in
accordance with the Consent Decree. These issues
were resolved as of March 9, 1992 when the
District Court entered a modified consent decree
between EPA and American
Brass,
In the Matter of Amoco Oil Co.: On July 31, 1991,
Region III issued a RCRA administrative
complaint seeking penalties against Amoco,
regarding the unpermitted storage and
management of lead- containing wastes at
Amoco's Yorktown, VA oil refinery. This
complaint was issued as part of EPA's Lead
Initiative. In addition, the complaint cites Amoco
for storage of hazardous wastes in drums and
tanks for longer than the 90-day accumulation
period without a permit, numerous record keeping
violations, an inadequate contingency plan, and
failure to make adequate hazardous waste
determinations. Concurrent with issuance of the
complaint, EPA sent Amoco a draft RCRA
§3008(h) corrective action consent order to address
releases from the facility. Administrative
litigation is pending in this matter.
In the Matter of AT&T (Richmond, VAfc On July
31, EPA issued a 3008(a) administrative
complaint seeking penalties to AT&T for RCRA
violations at its Richmond Works facilities in
Richmond, VA. The complaint allegations
include: unpermitted storage of hazardous wastes,
failure to manifest hundreds of shipments of
hazardous wastes, numerous LDR record keeping
violations, an inadequate contingency plan,and an
inadequate training program. Concurrent with
issuance of the complaint, EPA sent a RCRA
3008(h) consent order to AT&T to implement the
remedy selected by EPA in the RCRA Record of
Decision for the facilities.
U.S. v. Environmental Pacific Corporation.
Amityf Ojfr As part of Environmental Pacific
Corporation's (EPC) operations at Amity, Oregon,
EPC received lead acid and alkaline batteries,
which it allegedly drained prior to shipment to
recyclers or sent undrained to recyclers. During an
inspection conducted by EPA Region X and the
Oregon Department of Environmental Quality,
hazardous constituents, including lead, cadmium,
chromium, barium, mercury and silver, were found
in soil and surface waters off-site. The civil
judicial action undertaken by Region X seeks an
injunction requiring EPC to clean up the lead and
other hazardous constituents contaminating its
facility and to study all areas where releases
might have occurred.
U.S. v. GrQtjp Dekko International. Tnc^ This is an
enforcement action against Group Dekko for
unlawful land disposal of toxic, lead-bearing
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FY1991 Enforcement Accomplishments Report
waste in an uncontrolled pile that may contain as
much as 60 million pounds of waste. The waste
pile was generated at a copper recovery facility
near Kendallville, Indiana, that is part of Group
Dekko's Reclaimers operating division. The
complaint also addresses an unlawful shipment of
waste as well as numerous testing and
recordkeeping violations at Reclaimers. The
complaint seeks an injunction requiring Group
Dekko to cease using the waste pile and to
maintain testing and records at the site as
required by RCRA. The complaint also seeks civil
penalties.
U.S. v. Kurdziel Industriesf Incj Kurdziel
Industries (formerly Kurdziel Iron Industries, Inc.)
is an enforcement action concerning Kurdziei's
gray iron foundry located in Rothbury, Michigan.
Wastewater and waste by-products from
operations containing hazardous amounts of lead
had been discharged into settling ponds and other
areas at the foundry for years. The United States
has filed a motion to hold Kurdziel in contempt of
court for numerous violations of a Consent Decree
it had agreed to in 1987, including failure to abide
by the Decree's requirements concerning
groundwater monitoring, financial assurance for
closure of the contaminated areas, and,liability
insurance in case of an accident involving the
contaminated areas. The action seeks an
injunction requiring compliance and payment of
stipulated penalties by Kurdziel.
U.S. v. Raymark Industries Inc.: On July 31, 1991,
the Department of Justice filed a civil complaint
in the U.S. District Court for the District of
Connecticut against Raymark Industries Inc.
requesting that the court order Raymark to study
and perform corrective action at its facility in
Stratford, CT. Raymark had manufactured
automobile brakes and friction products at this 34
acre facility from 1919 through 1989, and disposed
of its hazardous wastes (principally lead-
asbestos wastes and dust) on-site. In some areas,
this lead-asbestos fill is up to 17 feet deep. There
is also extensive groundwater contamination on-
site. The complaint requests that the court order
Raymark to comply with an administrative order
issued by EPA on March 31, 1987, pursuant to
§3013(a) of RCRA, which instructs the company
to study its site in order to ascertain the nature
and extent of the hazard created by the presence
and release of hazardous waste. Raymark has
failed to comply with the terms of the order.
Based on the results of this study, the complaint's
second claim requests that Raymark be ordered by
the court to carry out a corrective action plan as
approved by EPA.
U,S, v. Torrington Hide & Metal (Wyoming): On
July 31, 1991, the U.S. filed a case in the U.S.
District Court of Wyoming against Torrington
Hide & Metal under CERCLA §106 and RCRA.
§7003 imminent and substantial endangerment
statutory authorities. On February 28,. 1989, U.S.
EPA issued a RCRA §3008(a) administrative
complaint, to Torrington Hide & Metal for twenty
years of illegal disposal of hazardous waste
resulting in lead contamination in the soils. The
administrative case was vacated and a referral
was filed in 1991 due to injunctive relief needs at
the site. The defendants have claimed
bankruptcy, and EPA has performed assessment
and stabilization activities at the site ,to
minimize potential exposure.
Export-Import Cluster Filing
On September 26, 1991, EPA filed 16
administrative actions under RCRA as part of a
multi-media effort targeting illegal export and.
import of hazardous waste or chemicals. A total
of 23 cases were filed to enforce the export and
import, regulations of RCRA, TSCA, FIFRA and
the Clean Air Act. This cluster filing illustrated
the increasing priority the Agency is placing on
transboundary environmental problems.
Eight of the 16 RCRA cases concerned
shipments of hazardous waste to Mexico and
were developed in cooperation with the Mexican
government. Other RCRA actions involved
shipments of hazardous waste or chemicals to
and from Canada, and exports to Asia and
Europe. These administrative actions address a
broad .range of export and import violations
including: failure to notify EPA and receive.
consent prior to export of hazardous waste to a
foreign country; shipments of hazardous waste in "
violation of quantity limits set out in EPA's
acknowledgement"of the consent provided by the
receiving -country;- and violations related to '
tracking of waste-shipments.
jn Jbe Matter of Birmingham Bolt Company,.
Southern United Steel Division: This RCRA
action involves a bolt and bar manufacturing
operation that uses steel reclaimed from scrap
metal in its manufacturing process. Hazardous
waste generated at the facility, emission control.
dust from an electric arc furnace, was collected in a
baghouse and was exported to Mexico for
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FY1991 Enforcemint Accomplishments Report
reclamation. EPA issued an Acknowledgement of
Consent to export after it received BBC's Notice
of Intent to Export, and obtained Mexico's consent.
EPA alleges, however, that BBC exported a
greater quantity of waste than it indicated it
would export in its original Notice of Intent, and
prior to obtaining EPA's acknowledgement of
Mexico's consent to increase the volume of waste
which may be shipped, in violation of 40 CFR
§262.53. EPA's complaint asks BBC to comply
with the regulations and seeks a penalty for
violations.
In the Matter of Coastal Metal Finishing; This
action involves an electroplating facility which
performs several types of plating operations.
These operations include precious metal plating,
plating of common metals and anodizing. The
facility uses conventional treatment which
includes chrome reduction, cyanide destruction
and chemical precipitation of metals to treat its
process wastewater. The alleged RCRA
violations, which have been occurring since 1987,
include failure to notify EPA of some exports of
hazardous wastes, resulting in some unauthorized
shipments; failure to properly complete manifests
for export shipments; failure to submit annual
reports; and additional regulatory violations
under Subtitle C of RCRA, including violations of
the Land Disposal Restrictions, and container
management provisions of RCRA. EPA's
Complaint asked Coastal to comply with the
regulations and seeks penalties for violations
In the Matter of Sheffield Steel Corporation:
This RCRA action involves a steel mill operated
by Sheffield Steel Corporation located in Sand
Springs, Oklahoma. Waste generated by the
facility includes emission control dust (K061) from
the production of steel in electric arc furnaces, and
contains chromium, lead, and cadmium. The
waste is shipped to Zinc Nacional, Monterrey,
Mexico, for reclamation. The violations alleged
in the complaint include export of wastes prior to
receiving an EPA Acknowledgement of Consent for
the export; the export of a greater quantity of
hazardous waste than represented in the
facility's notification of intent to export, without
renotifying EPA of the intent to ship additional
wastes and obtaining an EPA Acknowledgment of
Consent to the additional shipments; and the
export of wastes without the EPA
Acknowledgement of .Consent accompanying the
shipment. EPA is 'seeking compliance with the
regulations and penalties.
In the Matter of Stablex (R.I.)f Inc.: This action
involves a commercial wastewater treatment and
hazardous waste storage facility, which is a
major exporter of hazardous wastes to Canada.
Essentially all of the waste generated and
handled by Stablex are shipped to Stablex
Canada, in Blainville, Quebec, which was
formerly owned by the same company. The
alleged RCRA violations, which have been
occurring since 1988, include the export of certain
types of hazardous wastes which were not
included in the facility's notification of intent to
export upon which Canada's consent to receive
the wastes was based; failure to provide adequate
Notification of Intent to export; failure to
properly complete manifests for export
shipments; and additional regulatory violations
under Subtitle C of RCRA, including violations of
the Land Disposal Restrictions. EPA is seeking
compliance with the regulations and penalties.
|n the Mattef °f Universal Metal and Ore Co.. Inr .
(New Yorkh In September Region II filed an
administrative complaint against this firm
alleging violations of RCRA pertaining to the
trans-boundary movement and handling of
hazardous wastes. The Region II case seeks
penalties which may be among the largest of the
16 RCRA cases included in the initiative.
REGIONAL INITIATIVES
Great Lakes Enforcement Initiative
As part of its effort to clean-up the Grand
Calumet River area and Great Lakes Region,
EPA filed three civil judicial lawsuits on October
16, 1990 against companies with facilities near
Gary, Indiana. These actions, against Inland
Steel Co., Inc., Bethlehem Steel Corp. and
Federated Metals Corp., involved violations of
hazardous waste, air and water laws and,
together, constituted a unique, geographically-
limited coordination of statutory enforcement
authorities.
EPA sought to compel Inland to comply
with its air, water and hazardous waste permits
and to clean up toxic contamination deposited in
sediments at the Indiana Harbor area of
southern Lake Michigan and on its 2 1/2 mile
man-made peninsula which the company used
for hazardous waste disposal. Bethlehem
Steel's operation in Burns Harbor, Indiana
generates several types of hazardous wastes;
releases threatened the Little Calumet River
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FY1991 Enforcement Accomplishments Report
and the Burns Ditch which flow into Lake
Michigan. At Federated Metals' former smelting
and refining facility in Whiting, Indiana,
releases of lead and cadmium threatened human
health and endangered the surrounding wetlands
and Lake George.
California Generators
Enforcement Initiative
Administrative
Beginning in FY 1990, EPA Region VIII
developed an administrative- enforcement
initiative targeting a group of California
hazardous waste generators who improperly
shipped wastes to unpermitted facilities in
Wyoming and Utah. The region filed a total of
eleven such actions. The cases, which involved
multiple shipments, alleged three violations per
shipment: (I) the improper shipment of
hazardous wastes to unpermitted facilities, (2)
the failure to include a proper shipping manifest
wit the shipments, and (3) the failure to provide
a land disposal ban notice. Several of these
cases were concluded in FY 1950.
In FY 1991, Region VIII successfully resolved the
remaining cases, with penalties ranging from
$20,000 to $247,000. The defendants in these
actions included BFM Energy, Cessna (General
Dynamics), City of Fontana, SAIC, Harbor, Inc.,
Paul-Munroe, VAL- Circuits, DICO, Inc. and
Exotic Materials.
Region II Fur Pelt Industry Non-Notifier RCRA
Enforcement Initiative
During FY 1991, Region II filed
administrative complaints against six New
jersey firms engaged in fur processing and
transportation of the resulting wastes. The firms
illegally generated, stored, transported and
disposed of hazardous wastes generated during
the processing of fur pelts. The industry uses
sawdust soaked with solvents to clean fur pelts.
Two fur processors charged, Ella lndustriesf Inc.
and Superior Dyed Furs, Inc., ignored all RCRA
rules and disposed of the solvent-laden waste
sawdust through transporters which then
brought the sawdust to horse stables, factories
and other locations not authorized to accept
hazardous wastes. The improper handling and
disposal of the solvent-laden waste sawdust
could cause environmental contamination and
human health problems; the solvents used
include suspected carcinogens. The transporters
cited are Lignum Chemical Works, Inc., Atlantic
Sawdust and Paper Shredding, Landew Sawdust,
Inc., and Ray Reilly Stables, Inc. During FY 1991
Region II inspectors visited 27 /«r industry
facilities.
Virgin Islands UST Enforcement
In FY 1991, Region II issued a complaint
seeking penalties and compliance order against
Frank Mustafa in the U.S. Virgin Islands, for
violations of UST notification and leak detection
requirements. The Virgin Islands environmental
agency reported a large upsurge of interest in
compliance following the press reports. Of 25
parties issued Notices of Violation by the Virgin
Islands government in FY 1991 regarding leak
detection infractions, all have since responded.
The compliance rate for leak detection in the
Virgin Islands now stands at 100%, either
through implementation of the leak detection
requirements of through closure of existing
facilities.
Region n Waste Oil Enforcement Initiative '
In FY 1990 civil actions were filed against
seven Region II waste oil handlers for violations '
of the used oil regulations and other RCRA
requirements. (Two administrative actions were
also filed at that time against waste oil
handlers.) With respect to two of the civil
actions there were significant litigation
developments in FY 1991. On August 8,1991, the
court in U.S. v. Nassau Oil (E.D. New York)
issued a default judgment in favor of EPA
awarding a civil penalty of $900,000. In U.S._v.
Eastern Oil (D. New Jersey), the court denied the
bulk of summary judgment motions filed by both
the government and the defendant, but granted
the government's summary judgment motion as to
certain counts. The parties subsequently reached '
a settlement, providing for a penalty payment of
$195,000. The ensuing consent decree was entered
on February 28, 1992. Eastern has also agreed to
adopt newt operating procedures at its facility to
insure the proper handling of used oil, and to
mark its tanks with logos reading "Don't Pollute
- Recycle Oil"
Other Significant RCRA Actions
In the Mattel of Accurate Associates, Inc. (New
Yorkfe On May 24, 1991, Region II issued an order
under §7003 of RCRA requiring the removal of
hazardous wastes from the premises of a former
metal plating factory in New York City. The order
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was directed to the owners and operators of the
former factory, and specified steps which had to
be taken to ensure the prompt and safe removal of
the wastes discovered at the site, as well as
certain testing and possible remedial action
reMng to the sewage system connections at the
facility. This case was developed with cross-
media cooperation in the Regional office, A
Region II EPCRA inspection in December I989r
resulted in an administrative complaint issued to
Accurate Famous Castings, Inc. When the
Respondent company failed to respond to the
complaint, EPCRA inspectors again visited the
facility and found that the company had vacated
the premises. The inspectors found about seventy
55-gallon drums on site, many in poor condition,
and many marked as containing cyanide plating
wastes, an acutely hazardous substance. The
EPCRA program forwarded this information to
the RCRA program, and after an accelerated
investigation the §7003 cleanup order was issued.
- Bass
In an
administrative case, the owner/operator of a
brass and aluminum foundry in Iowa was found
liable under §3004 of RCRA for conducting
treatment of hazardous waste without a permit.
The Chief Administrative Law Judge ruled on
September 24, 1991, that Acme Brass and
Aluminum Foundry's practice of mixing hazardous
baghouse dust with non-hazardous foundry sand
in an open pile behind its facility was treatment
of a hazardous waste which required a RCRA
permit. In addition, the ALJ ruled that although
the company was a small quantity generator, it
failed to comply with certain conditions of the
small quantity generator regulations and thus was
not exempt from the RCRA permit requirements.
.. y.
Corp.- On January
25, 1991, the United States District Court for the
Northern District of Ohio entered a consent decree
settling a RCRA enforcement action against GSX
Chemical Services of Ohio, Inc. formerly- known
as Alchem-tron, Inc.). The settlement provided,
in part, for the payment of a civil penalty of
$350,000,00. to this action, filed on December 5,
1986, the United States alleged that a number of
the units at the Defendant's facility located in
Cleveland, Ohio, lost interim status on November
8, 1985, when Alchem-tron failed to certify
compliance with the applicable financial
responsibility requirements. In 1989, the district
court granted the United States motion for partial
summary judgment and held that the units at
issue had lost interim status. The court
permanently enjoined the Defendant from
treating, storing, or disposing of hazardous waste
in the units that lost interim status. The parties
subsequently entered into the consent decree in
order to settle the remaining penalty-related
issues.
H^vY.gACkgyeyyodtict!ltJfaCuC)n January 30, 1991,
the United States District Court for the Eastern
District of Michigan issued an order holding
Buckeye in contempt for failing to comply with a
1987 consent decree. The contempt order includes
provisions requiring defendant to: (1)
immediately commence ground water monitoring
on a quarterly basis; (2) fully and timely
implement post closure care; (3) pay $104,871 as
payment of the outstanding civil penalty due,
plus interest; and (4) pay $5.31 million in
stipulated penalties for violating the consent
decree. The government subsequently garnished
Buckeye's assets to satisfy the contempt order,
The defendant has moved to quash the
government's efforts to execute the contempt order
and that motion is currently pending,
fa the
of
Northern (Cheyenne.
ing): On September 10, 1991, the U.S.EPA
filed a RCRA 7003 Administrative case on consent
against the Burlington Northern Railroad
Company. The action was filed to impel cleanup
of a Cheyenne site containing high levels of lead.
Known contamination of soil, and potential
contamination of surface and ground water
including drinking water sources made this site of
imminent and substantial endaitgennent to human
health and the environment. Cleanup activities
to be performed include immediate access
restrictions to the site, installation of wells and
groundwater monitoring,, an evaluation of the
depth of soil contamination and contaminants
present, an evaluation of all drinking water
supply wells within 1 /4 mile of the facility, soil
stabilization and removal, and site reconstruction.
This case was interesting because Burlington
Northern was neither an owner or an operator,
and most of the disposal activities at the site
occurred prior to 1980. A simultaneous unilateral
§7003 order was filed against the owner of the
site to cdmpel their participation in the cleanup
as necessary and to ensure that if any
contamination remained on site, a deed notice was
entered with the appropriate local zoning
authority.
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LLij. v.
S. Han
and
H- Hunter, fe On August 28, 1991,, a
complaint was filed against three respondents,
each an operator and owner of a. hazardous waste
treatment, storage and disposal facility located
in Santa Barbara County, California. The
complaint seeks civil penalties and injunctive
relief for numerous violations of RCRA, including
improper expansion of landfills, disposal of
waste in excess of specified design capacity,-
inadequate insurance coverage and failure to
amend its closure plan for new construction. The
complaint also seeks corrective action. The case
has been consolidated with an .action filed the
previous day by the County of Santa Barbara
under RCRA's citizen suit provision. The State of
California has moved to intervene to present
claims under both, RCRA and state law.
In fhq. Matte? pf Comical
& aj.d
eiad
In this action to debar the
respondents from federal . assistance, loan and
benefit programs. Region VII obtained an
agreement by respondents to accept a debarment
for three years.. The three year period was the
amount of time proposed by the Region in its
notice. The debarment order was entered on
September 17, 1991. The debarment was proposed
by the Region as a result of respondents'
violations of hazardous waste regulations under
RCRA, including a -conviction of respondent
Chemical Commodities, Inc. for violations.
thft
of
erces> .
Texas; Treatment jQjig, a. _ Division of SET
Environmenjat fag., Texas; Rollins Environmental
i In the first such actions taken by the
EPA, these four companies -were cited in early
1991 in administrative enforcement actions for
importing hazardous waste from facilities in
Mexico without the required notifications to EPA,
The hazardous waste regulations under RCRA
require that before importing hazardous, waste, a
company .must submit a, written notification to
EPA at least four weeks in advance of the date
the hazardous waste is expected to arrive at the
U.S. facility. ,
Region issued to C.P. Chemical because the state
had been unable, for a number of years, to bring
the Respondent into compliance with RCRA.
Among the diversity of RCRA violations the
Region charged the company with were: (1)
continuing to operate a hazardous waste
management unit for 173 days after losing interim
status to operate this unit; (2) failing to submit a
closure/post-closure plan for this unit; and <3)
failing to certify compliance with RCRA
financial assurance requirements for three of its
hazardous waste management units.
In the
Craig Adhesives (New Jersey);
EPA and Craig Adhesive Company signed a
Consent Agreement in late September 1991,
settling a RCRA Administrative action for
violations of seventeen regulations in the N.J.
Administrative Code. Operating a hazardous
waste storage facility without having applied
for a RCRA permit, using leaking and
deteriorating containers for hazardous waste, and
failure to inspect its storage area were among the
most significant of the allegations in the EPA
Complaint, The company is presently undergoing
a New Jersey RCRA cleanup and has agreed to
pay a civil penalty of $230,000 and spend
$185,000, over three years, and to implement a
research and development program to reduce or
substantially eliminate hazardous solvent
constituents from its solvent-based adhesive
formulations.
In the IVtatter of C. P. ChemicatSj. jfac. . _
Carolina^ On January, 7, 1991, Region IV entered
into a RCRA §3QQ8(a), Consent Agreement with
C.P. Chemicals, Inc. The consent agreement .
provides for C.P. . Chemical's payment of a
$242,500 civil penalty and settlement of a '
complaint and compliance order ( which the
4.44
InJhfi,Matter pfCypress Aviation^ and Tlifc City of
^ajcg|atid. pa.: An administrative law judge's
decision established strict liability for absentee
landowners by awarding a penalty of $25,000
against the operator of a facility for violations of
Land Disposal Restrictions and assessed a
penalty of $12,500 against the city that owned
the facility. The judge found the city liable :as
the owner, although it was not involved in the
operations. However, the judge calculated the
city's penalty based upon its own conduct and
declined to hold the owner strictly liable for the
penalty assessed,
ta.-Jhfc_.Mqttre-i>l geluxe Packages. Division flf
Papgjjoayd Packaging Corpoiation; On August
24, 1990, EPA Region DC issued a RCRA 3008(a)
order against Deluxe Packages for alleged
violations of Subtitle C of RCRA at its South San
Francisco, California facility. Deluxe Packages
produces flexible packages for the food industry.
EPA cited Deluxe Packages for failure to make a
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FY 1991 Enforcement Accomplishments Report
waste determination of generated waste and for
storage of hazardous waste without a permit. On
May 22, 1991, EPA signed a consent agreement
with Deluxe Packages. Deluxe Packages agreed
to pay a civil penalty of $93,000 and perform all
work EPA ordered to bring the facility into
compliance, including implementation of
hazardous waste management unit closure plan.
In the Matter of Eli Lilly Industries: On
September 16, 1991, the Regional Administrator
in Region II signed a Consent Agreement and
Consent Order in the above matter. EPA had
issued a Complaint to EH Lilly on December 24,
1990, alleging that the company had violated
the terms of its RCRA permit. The five counts set
forth in the Complaint alleged that Eli Lily had
violated the terms of its RCRA permit by
improperly operating its hazardous waste
incinerator. The violations included: 1) failure to
maintain the scrubber pH monitor; 2) failures to
maintain the total dissolved solids monitor; 3)
exceeding the allowable total dissolved solids
concentration in the scrubber water; 4) failures to
perform checks to verify that the incinerator
automatic waste feed cut-off system was
operational; and 5) failure to perform daily
calibrations of the incinerator stack carbon
monoxide monitor. As part of the conditions of
settlement of this matter, the company agreed to
pay a penalty of $74,127 and to develop and
install a Distributed Control System for its
hazardous waste incinerator, which will provide
improved combustion, temperature, pH, and waste
destruction control for the incinerator.
U.S... v, Envirite Ctyporatiori: On November 8,
1991, the U.S. District Court for the District of
Connecticut granted a request by Envirite
Corporation to re-open the Consent Decree in U.S.
v. Envirite Corporation. Civil Action No. H-89-
279(EBB). The Judge vacated the Consent Decree,
ordered the return of the penalty, and restored the
case to active status. In a Joint Stipulation of
Dismissal resolving this litigation and a Consent
Agreement and Order resolving a related RCRA
civil administrative action, the United States
has agreed to a dismissal of the complaint and
will return to Envirite the sum of $66,740 and
Envirite will address several matters including
revisions to the ground-water assessment program
for its Thomaston, CT facility. The Joint
Stipulation of Dismissal was filed with the
District Court on March 31, On April 2, 1992 the
Court signed the Stipulation, ordering the
dismissal of the civil judicial action.
U.S. v. Environmental Wa.ste Control ("EWC"L
d.b.a. "Four County I^andfiU": in a 1989 decision,
the United States District Court for the Northern
District of Indiana assessed penalties of $2.778
million against Environmental Waste Control
(EWC), permanently enjoined operation of the
EWC landfill, and ordered EWC to conduct
corrective action. The penalty in this case was
the largest RCRA civil judicial penalty ever
assessed by a court at that time. The tower court
granted such relief based on EWC's operation of
the landfill after losing interim status as a result
of financial assurance and ground water
monitoring deficiencies, and based on the
contamination to ground water that resulted from
landfill releases. On October 31,1990, the United
States Court of Appeals for the Seventh Circuit
affirmed in all respects the district court's order
in favor of the government (and the intervening
citizen's group, Supporters To Oppose Pollution
(STOP)). On April 22, 1991, the U.S. Supreme
Court denied EWC's petition for certiorari. The
issues presented in the certiorari petition related
to whether the lower courts correctly ruled that
EWC lost interim status and whether the district
court erred in issuing an injunction closing the
landfill,
federal-Hoffman. Iric. v. EPA: On November 21,
1990, the District Court of Minnesota upheld a
decision by the Chief Judicial Officer ("CJO"}
that assessed a $77,000 civil penalty against
Federal-Hoffman, Inc. for violations of RCRA
regulations governing placement of liquid waste
into landfills. In 1986, EPA Region V brought an
administrative enforcement action under RCRA
§3008(a) alleging that the plaintiff, a small
arms manufacturer, illegally disposed of waste
containing free liquids in that plaintiffs interim
status unit which did not have "a liner and
leachate collection and removal system that
meets the requirements of §264,301(3)," as
required by 40 CFR §265.314(a). The company
argued that its unit qualified for the "existing
portion" exemption provided in §264301(a). The
Agency's position was upheld by the CJO, who
imposed a civil penalty of $77,000 for the
regulatory violations. The district court deferred
to the Agency's interpretation of its own
regulations, and agreed that the "existing
portion" exemption did not allow the plaintiff to
by-pass the regulatory restrictions on disposal of
liquid waste into landfills. The court also found
that the administrative record fully supported
the factual basis for the CjO's decision regarding
the existence of a regulatory violation, and
4-45
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FY1991 Enforcement Accomplishments Report
upheld the amount of civil penalties assessed by
the Agency.
In
Industries, Inc. (M;D.
Iowa): This case involved persistent and
successful efforts to assert EPA's authority to
conduct inspections under RCRA. EPA Region VII
tried unsuccessfully . to secure access to the
Flexsteel Industries, Inc. (Flexsteel) facility in
Dubuque, Iowa, for purposes of conducting an
inspection to determine whether hazardous
wastes or hazardous constituents had been
released into the environment from solid waste
management units. On August 1, 1991, pursuant to
§3007 of RCRA, EPA filed an application for an -:
administrative search warrant in the United
States District Court for the Northern District of
Iowa, Eastern Division. Following an ex parte
hearing on the application, a Chief United
States Magistrate issued the administrative
search warrant. On August 6, 1991, Flexsteel filed
a motion to quash the administrative warrant
and requested oral argument. The Magistrate
denied Flexsteel's motion. The inspection of the
Flexsteel facility was performed on August 13,
1991. On August 22, 1991, Flexsteel renewed its
motion to quash the administrative search
warrant. Finding that Flexsteel's renewed motion
failed to raise any claims not previously heard
and considered by the court, on October 8, 1991,
the Magistrate issued an order denying
Flexsteel's renewed motion.
In the Matter of Formosa Plastics, Inc.. Point
Comfort, Texas: An order representing the largest
civil penalty yet assessed under RCRA was
entered into with Formosa Plastics Corporation,
Point Comfort, Texas, on February 27, 1991. ,On
October 11, 1990, EPA Region VI had issued a
RCRA §3008{a) Complaint against this facility
for several RCRA violations, including failure to ;
submit a RCRA permit application, develop a
waste analysis plan, make a, hazardous waste
determination, maintain leakproof containers, ,
develop a closure plan, and demonstrate financial
assurance. Under the agreed final order, Formosa
Plastics agreed to pay a cash penalty of >
$3,375,000, set up a $1,000,000 trust fund to benefit
the environment, and implement a program of -
pollution prevention projects and environmental
audits. Formosa Plastics was also issued a RCRA ,
agreed corrective action order on February 27,
1991. Under this corrective action order, Formosa .
Plastics will investigate the type and extent of
soil and ground water contamination at the
facility and will develop and implement a
4-46
remedial action plan.
U.S. v. General Electric Co; On March 29, 1991,
the United States District Court for the Northern
District of New York entered a consent decree
between General Electric Co. and the United
States.. Pursuant to the agreement. General
Electric Company agreed to pay $176,000 in .
penalties for violations of RCRA Subtitle C, at its
silicone production facility in Waterford, New
York. In addition, GE agreed to construct a
container/drum storage pad with a protective roof
and take other measures related to container.
storage and management practices.
In the Matter of GSX Chemical Services of Ohio,
Insm GSX Chemical Services of Ohio, Inc. owns
and'operates as a hazardous waste management
facility in Cleveland, Ohio. A .Consent .
Agreement and Final Order was entered between
GSX and EPA Region V with an assessment of
$110,000 penalty for violations -of an
Administrative Complaint. GSX was cited for
improper storage of hazardous materials, non-
marked containers, storage of waste in
unpermitted areas, non-documentation of training
for emergency coordinators, and several other.,
violations. -In addition, an earlier penalty was
assessed for $350,000 as part of a LOIS .judicial,
action. . .:
U.S. v.-The Hanlin Croup Inc.: In one of the
Agency's first efforts to enforce the terms of an
interim status corrective action order, a complaint
was filed on July 31, 1991, in the U.S. District
Court for the District of Maine against The
Hanlin Group Inc. The consent order, issued
pursuant to §3008{h) of RCRA, required, the
company to conduct a site assessment with respect
to mercury, carbon tetrachloride, and chloroform
releases to the. groundwater and mercury .
contamination of soil at the company's Orrington,
Maine, site and to submit an interim RCRA
facility investigation report, all of which the-
company is alleged to have failed to do in'
accordance with the order. The complaint-seeks,
payment of penalties of up to $25,000 per day or in
the alternative, stipulated penalties of $5/000
per violation per day as spelled out in ,the ,
administrative consent order; for violations of the*
consent order. and completion of the, site
assessment, subject to EPA approval,, as
expeditiously as' possible. Hanlin filed,, for '
protection from creditors under Chapter. 11 of the
U.S. Bankruptcy Code three weeks prior -to;the
filing of the complaint. > .:
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FY1991 Stforcement AccompUfhments Report
it In this bankruptcy case, EPA was successful
in obtaining an order approving the sale of a
facility by a bankrupt owner (Harklau Industries)
to a prospective purchaser of the property
(Hawkeye Leisure Trailers Limited) on the
express condition that both the owner and the
buyer sign a consent agreement negotiated by
Region VII, under §3008(a) of RCRA, The order
wa$ entered on August 26, 1991, by the United
States Bankruptcy Court for the Northern
District of Iowa, Both parties and EPA have
subsequently signed the agreement and, as a
result, the process of removing the drummed
wastes and testing for possible hazardous waste
contamination in the soil and ground water at the
site has commenced.
iliS, jfe tioj^j^I^Qtd^MffiBl gffrtf teg Co-? to October
of 1990, the U-S, District Court for the Northern
District of Ohio, entered a consent decree between
the U.S. and Household Manufacturing, Incv Eljer
Industries, Inc. and Eljer Manufacturing, Inc. This
action concerned the Eljer Plumbingware Division
facility (Eljtr) of Household Manufacturing, Inc.
located in Salem, Ohio. The facility is an iron
foundry that manufactures and enamels bathroom
fixtures. The consent decree provided that the
defendants would implement ft closure plan for a
land disposal unit that had lost interim status;
implement a proper ground water monitoring
system; cap all hazardous wastes until closure
was initiated; comply with financial
responsibility requirement; and comply with
other operating requirements along with paying a
civil penalty of $235,000,
IL&L.&JLS& On October 8, 1991, more than three
years after the trial of this case was concluded,
the U,S. District Court for the Northern District
of Alabama issued a final judgment in McJigd.
£LaL The United States filed
this multi-media action against ILCO and ILCO's
president, Diego Maffei, in March 1985, and the
State of Alabama intervened as co-plaintiff. The
action sought civil penalties and injunctive relief
for violations of RCRA and CWA, and
reimbursement of response costs incurred by BPA
under to CERCLA, The original action also
included claims for further tnjunctive relief under
§3008
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FY 1991 Enforcement Accomplishments Report '
In the Matter of Midwestern Drum Services, Inc.:
Midwestern Drum Services, Inc. located in Venice,
Illinois, owns and operates as a hazardous waste
management facility. A Consent Agreement and
Final Order was entered between Midwestern
Drum Service and EPA Region V for a civil
penalty of $112,125 for such violations as failure
to amend the contingency plan to include all drum
areas, failure to make weekly inspections, failure
to keep containers closed during storage, failure to
identify hazardous wastes, and numerous other
violations. Major issues in the case included
whether or not Midwestern Drum was a small
quantity generator and whether Midwestern.
Drum operated an incinerator at its facility. The
small quantity generator issue was resolved on
procedural grounds in a partial motion for
summary judgment when the company failed to
file a timely response.
In the Matter of the Missouri Air National Guard
Facility. (Bridgeton, MissourjJ! In Region VII's
first RCRA settlement with a National Guard
facility, the Region successfully negotiated a.
consent agreement and consent order pursuant to -
§3008(a) of RCRA with the Missouri Air
National Guard facility located in Bridgeton,
Missouri, near the St. Louis, Missouri airport.
Based on an EPA inspection on June 21, 1989, EPA
filed a RCRA §3008(a) complaint on January 3,
1990, alleging violations of RCRA storage . and
land ban requirements. In addition, the complaint
demanded payment- of civil penalties in the
amount of $11,560. The. Missouri Air National
Guard admitted to the violations; however, the
Guard argued that it was a federal facility, not
subject to penalties under RCRA. EPA argued that
the facility was a state facility and therefore
subject to RCRA penalties. The Missouri Air
National Guard ultimately agreed to settle the
case and paid the civil penalty, despite its prior
assertions that the facility was a federal
facility. . .
Municipal OTd Industrial Disposal Co. v. Reilly:
On August 26, 1991 Municipal and Industrial
Disposal Company (M&I) appealed a Summary
Judgment granted in favor of the EPA on July 26,
1991, by the US. District Court for the Western
District of Pennsylvania. In Municipal and
Industrial 'Disposal Co. v. Thomas, . filed
December 1988, M&I sought review of a Final
Decision by EPA's Chief Judicial Officer (CJO)-
holding that M&I had violated RCRA's ground-
water monitoring requirements at its inactive
hazardous waste landfill located in Elizabeth
Township, PA. The CJO's Decision awarded EPA
an administrative penalty of $25,250. EPA filed
a counterclaim against M&I seeking enforcement
of the Final Decision, including payment of the
$25,250 plus interest, as well as the imposition of
penalties for M&I's failure to comply with the
Final, Decision. EPA also sought penalties for
M&I's failure to perform a study pursuant to.
RCRA § 3013, which EPA had ordered,in March,,
1987. In mid-1989, both parties filed Motions for
Summary Judgment and the District Court denied.
M&I's Motion while granting the U.S.'s Motion,
The Court. found M&I liable for, the original
administrative penalty of $25,250, for penalties
plus interest on the unpaid original judgment, and
found M&I liable, without setting a fixed dollar
amount of liability, for its failure to comply with
the § 3013 Order. ,
U.S. v. Ownbey Enterprises. Inc.: A civil .suit was
filed on -March 27, 1991, against Ownbey
Enterprises, Inc. of Dalton, GA, alleged violations
of ,the underground, storage tank provisions of
RCRA. According to the 'complaint, Ownbey ,
Enterprises, Inc., . failed to undertake 'certain
corrective actions to address groundwater and soil,
contamination resulting from leaking underground
storage-tanks at Deep Springs Grocery, located-on
Beaverdale Road., near Dalton, GA. , The..
requirement had been included in an
administrative Consent Order agreed .to by, the
company on February. 15, 1989. The Complaint
further alleges, that Ownbey Enterprises failed to
provide a permanent water supply to users of a
drinking, water well which had r.been
contaminated by petroleum leaking from., the
underground storage . tanks. -The suit, further
alleges that the company did.not carry out its own ,
plan to clean up the groundwater contamination/ .
in violation of the administrative Consent Order..
This action, seeks to require the Ownbey.
Enterprises, Inc. to comply with the
administrative Consent Order, impose civil
penalties for the company's failure to comply
with the Order up to $25,000, for each day'of'
violation after July,20,1990. - :...'>.
.* , " * *
In the Matter of Powder River Crude, -et al. :
(Texaco. Wyoming): On September 17, 1991; the
U.S. EPA issued a §7003 Administrative.Order'
against Texaco,Inc. for cleanup of the Powder
River Crude (PRO facility. Starting in August,
1988; PRG -received at least 210,000 .gallons of
waste oil from the Texaco Casper Refinery.
Between receipt of this waste and September
1989, PRC ceased operations. In September-1989;
4-48
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FY1991 Enforcement Accomplishments Report
EPA identified significant staining and other
evidence of random discharges and releases of
oily waste at the PRC site. In August 1990, EPA
collected samples at PRC which contained
benzene over the TCLP hazardous waste criteria
as well as high concentrations of lead. A visit in
August 1991 identified that waste had breached
impoundments and tanks and was flowing
uncontrolled through the site. In addition, concern
was raised over the structural integrity of the
tanks themselves. In conducting an environmental
assessment of the PRC release, EPA contacted
Wyoming Game & Fish (WG&F) and U.S. Fish &
Wildlife Service. The PRG area was identified as
a migration pathway for peregrine falcons and
bald eagles, federally-listed threatened and
endangered species. These agencies expressed
concern about the hazard to migratory water fowl
and sparrows which might feed in the area.
WG&F identified wetlands in the area and
ranked it as having value for recreation and
wildlife habitat. The issuance of the order to
Texaco was one of a series of fifteen orders issued
by EPA and compels clean-up of PRC including the
necessary removal of the contamination. On a
short term basis, the §7003 action is intended to
prevent endangerment to wildlife as well as the
catastrophic failure of the containment structures
currently holding the waste materials.
U.S. v. Production Plated Plastics. Inc. et al.- On
October 15, 1991 the United States filed a reply
brief before the U.S. Court of Appeals for the
Sixth Circuit responding to Production Plated
Plastics' (PPP) interlocutory appeal of two
district court decisions, PPP challenged the
district court's grant of summary judgment on
liability and a separate grant of summary
judgment for injunctive relief. On February 20,
1992, the United States Court of Appeals for the
Sixth Circuit affirmed both district court
decisions.
In an opinion and order dated January 24, 1991,
the U.S. District Court for the Western District of
Michigan, granted in part the United States'
Motion for Partial Summary Judgment on
Injunctive Relief, in an action brought under
RCRA; Accordingly, the court ordered defendants
PPP, i Michigan City Plastics, Inc. (MCP) the
company which owns PPP, and Michael J. Ladney,
Jr., majority stock holder of MCP and corporate
officer^ of both corporations, to immediately
commence closure of its Richland, Michigan,
facility in accordance with its approved closure
plan. Although PPP obtained interim status in
1980, its authorization to treat, store and dispose
of the listed hazardous waste F006, generated in
its processes, was lost in November 1985. This is
believed to be the first RCRA case in which the
court awarded injunctive relief on summary
judgment. The court held that an evidentiary
hearing is not always required before an injunction
is issued, if affidavits or other documentation
clearly establish the plaintiff's right to the
injunction. Furthermore, if the purpose of the
legislation would be thwarted by a failure to
comply, and the legislation specifically
authorized injunctive relief, no finding of
irreparable injury or balancing of the equities
need be made.
U.S. Y. Publix Oil Company. Inc.f et al.. (Georgia):
On July 11,1991, the U.S. Bankruptcy Court ruled
in favor of the United States' objection to Publix's
motion to abandon property, including underground
storage tanks. The U.S. objection, filed July 3,
1991, alleged that abandonment was not
appropriate in that the underground storage tanks
located at 41 facilities may pose an imminent and
identifiable harm to the environment in violation
of RCRA. The Court not only ruled that the
debtors had the burden of proving that
abandonment was appropriate, but also that six
months was an appropriate extension of the bar
date to allow an investigation of the 41 facilities
located in five southeastern states.
In The Matter of Rail Servicgsr fCalvert City.
Kyi: Region IV issued a §7003 unilateral order
which compelled Rail Services to cease operation
until it trained its employees in the proper
techniques for safely managing the solid and
hazardous wastes generated at the facility.
Previously, an employee was killed when he used
improper safety measures in entering a rail car. In
addition, hazardous waste removed from the rail
cars were managed unsafely. This action
represented the Region's first §7003 order issued
for mismanagement of solid waste.
In the Matter of Rhone Poulenc.: EPA has alleged
in an administrative penalty complaint that the
Rhone Poulenc facility in Institute, WV, has
violated §268,3(a) of Subtitle C of RCRA by
impermissibly diluting a multi-source leachate
waste stream containing metal constituents. EPA
Hazardous Waste No. F039 (wastewaters) is
prohibited from land disposal unless the waste
meets applicable treatment standards. The
complaint alleges that the facility has been
diluting such wastes to achieve compliance with
4-49
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FY1991 Enforcement Accomplishments Report.
LDR as a substitute for adequate treatment,
Penalties assessed for this violation and
additional LDR violations total $546,000.
In the Matter of Safety-Kleen Corp.: On
Thursday, June 27,1991, a Consent Agreement and
Order was filed with the Region I Hearing Clerk
resolving this action. The complaint and
compliance order in this action was originally
filed in September, 1990, and asserted that
Safety-Kleen had failed to properly determine
whether two of its waste streams, generated at its
Bridgewater, Massachusetts, Service Center were
LDR wastes prior to off-site shipment. A penalty
of $19,000 was assessed. During negotiations with
the company, Safety-Kleen came forward with
information relating to the same violation
occurring at seven additional Safety-Kleen
facilities in Region I, relating to 27 additional
waste streams. Under the terms of this Consent
Agreement, Safety-Kleen has agreed to pay a
civil penalty of $116,000 and EPA has agreed to
release the company from liability for the
originally cited and additional violations. A
$16,000 portion of the civil penalty is to be offset
in return for Safety-Kleen's production and
distribution of a video, aimed at generators of
LDR wastes, explaining the LDR requirements.
The videotape will be distributed by Safety-
Kleen to 100 trade associations and industry
groups chosen by EPA Region I.
In the Matter of Salt Rivpr Project (Navajo
Generating Station Page, Ar jzona): On November
22, 1989, EPA Region IX issued a RCRA §3008(a)
order against Salt River Project (SRP) for
violations at its Navajo Generating Station
(NGS), The Order cited the facility for disposal
of hazardous waste without a permit, storage for
greater than 90 days, and failure to notify EPA of
storage and disposal activities. NGS is a coal-
fired electric generating station located "on the
Navajo Nation near Page, Arizona. Since the
facility is located on Indian lands, EPA has
jurisdiction. The facility uses a chromium
compound in the bearing cooling water (BCW)
system. The water is well over the EP Toxicity
concentration for chromium. Under normal
circumstances, the BCW system is a closed-loop
system, with the cooling water running from
storage tanks to-heat exchangers and equipment to
be cooled and back to storage tanks. However,
these systems require periodic cleaning and
maintenance and this means the system must be
drained. Since 1982, the BCW system had been
drained four times, with the water from the BCW
systems being released to a concrete-lined
channel, going through an unlined ditch, .through
a pipe, into a surface impoundment. These
activities were never reported to EPA. In
addition, EPA found that drums of various
hazardous wastes were stored for over 90 days in
the facility's storage area. ,
On January 4,1991, EPA and SRP signed a consent
agreement wherein SRP agreed to pay a $113,500
penalty and to undertake a site investigation to
determine whether contamination exists at the
facility as a result of the release of chromium-
contaminated water. If significant contamination
is found, the facility will prepare a remediation
plan for EPA approval and then conduct
remediation. To help ensure future compliance
with regulatory requirements, SRP. agreed to
submit written operating procedures describing
steps taken to assure that wastes will be stored no
longer than 90 days as well as submit quarterly
reports and manifests to EPA for the year
describing hazardous waste generation and
disposal,
U.S. v. Sinclair Oil, Little American Refining Co.
(Wyoming); On July 23, 1991, the United States
District Court for the District of Wyoming entered
a consent decree between Sinclair Oil and the
United States resolving disputes relating to
Region , VIII's issuance of unilateral
administrative orders under RCRA §7003{a) and
§3008(h) against Sinclair Oil Corporation's
Little America Refining Company ("LARCO") in
Evansville, Wyoming. Pursuant to the consent
decree, Sinclair will perform Interim Measures, a
RCRA Facility Investigation, and a Corrective
Measures Study, and will implement those
corrective measures proposed. In addition,
Sinclair will resolve all pending issues regarding
closure of the hazardous waste management units
at the LARCO facility,
Ip'the Matter of Solvay Anin^ Health. Inc.
(Charles City. Iowa* Following the first
administrative hearing in Region VII under the
40 C.F.R. Part 24 regulations, EPA, Region VII,
issued a Final Administrative Order (FAO) to
Solvay Animal Health, Inc. on June 3, 1991
pursuant to RCRA §3008(h). An Initial
Administrative Order (IAO) , under RCRA
§3008(h) was issued to the company on December
29,1989. Solvay contested the IAO and requested
a hearing on this matter which was held on
March 6, 1990 pursuant.to the Part 24 regulation.
The Presiding Officer's Recommended Decision
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and the Regional Administrator's Final Decision
were issued on February 26, 1991 and April 22,
1991, respectively. Both the IAO and FAO
required Solvay to conduct a RCRA facility
investigation and corrective measures study to
address the nature and extent of any release of
hazardous wastes/constituents from its facility.
The decision provides significant precedential
value to other contested RCRA §3008(h) orders
because Solvay contested virtually every
provision of the IAO, which was patterned after
the model IAO. The final decision upheld all the
model IAO provisions in all but two respects. The
Final Decision requires the Region to provide
copies of all guidance documents that are utilized
by the Region in reviewing submitted work
products or in overseeing the work to be
performed, and precludes the Region from
requiring indemnification in the unilateral order.
In the Matter of Standard Tank Cleaning Corp.
(New Jersey): On July 19,1991, the Chief Judicial
Officer (CJO) Ronald upheld an Administrative
Law Judge (ALJ) Initial Decision of March 28,
1991, and rejected Standard Tank's appeal as
untimely. The Respondent/Petitioner, one of the
Frank Family companies which were the subject
of Region IPs most extensive multi-media
enforcement work during FY 1991, was charged
with RCRA violations for failure to demonstrate
that it had obtained insurance for its hazardous
waste treatment and storage facility. After a
two-day trial in February 1989, the ALJ had
found Respondent liable and imposed a penalty of
$132,312.50 more than twice as much as
requested in EPA's administrative complaint.
This amount was $10,000 higher than the
economic benefit calculated by EPA. The ALJ
decided on that increase, finding that
"Respondent's conduct ... displayed deliberate
neglect, indifference, or both. It is a luminous
example of lack of good faith." When rejecting
Standard Tank's appeal, the CJO also denied
Respondent's Motion to Reopen the Hearing.
U.S. v. United Technologies Corp; On April 1,
1991, the United States amended the RCRA
complaint filed in September, 1990 in the U.S.
District Court for the District of Connecticut
against the United Technologies Corp. (UTC),
significantly expanding the case to include
additional violating facilities, as well as
violations at previously included facilities. The
original complaint alleged over 100 violations of
RCRA's requirements at six UTC facilities in
Connecticut. These violations included improper
hazardous waste container management, storage
of hazardous wastes without a permit,
inadequate personnel training and record keeping,
incomplete contingency planning, inadequate
groundwater monitoring, non-compliance with
land disposal restriction notification requirements
and export regulations, and violations of a prior
consent agreement with EPA. The amended
complaint adds over 50 additional RCRA
violations at five of the original six facilities,
and at a Pratt & Whitney facility on Colt Street
in East Hartford and a Sikorsky Aircraft facility
in Stratford, CT.
U.S. v. Vineland Chemical dylyuy On March 7,
1991, the U.S. Court of Appeals for the Third
Circuit affirmed an April, 1990, decision by the
U.S. District court for the District of New Jersey
ordering Vineland Chemical Company (Vineland)
to pay a $1.223 million civil penalty for
violations of the LOIS provisions of RCRA, and
to close their two surface impoundments in
accordance with New Jersey requirements.
In affirming the decision of the District Court,
the Third Circuit found that: 1) joint and several
liability attached under RCRA to a facility
owner/operator without any need for a showing of
bad faith, and 2) constitutional due process is not
violated by imposition of a penalty for RCRA
violations which occurred during the pendency of
a defendant's judicial appeal of EPA's LOIS
determination. Vineland lost their authorization
to operate under Interim Status on November 8,
1985, as a result of submitting a deficient RCRA
§3005(e)(2)(B) certification of compliance with
groundwater monitoring and financial
responsibility requirements.
In thf Matter of Whitehead Oil Co. Inc. (Lincoln.
Nebraska): On Sept. 6, 1991, EPA settled its first
complaint for violations of the financial
responsibility rules for underground storage tanks
(UST). Whitehead Oil Co. Inc. of Lincoln,
Nebraska, came into compliance and paid a
$60,768 penalty. This enforcement action will
discourage UST owners from transferring USTs to
smaller companies, as suggested in trade
publications, as a strategy to comply with the
phased-in financial responsibility rule which
provides later compliance dates for small
businesses. Whitehead had transferred three of
its USTs to an affiliate in order to defer its
compliance date.
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In the Matter of Wilson and Hampton Painting
Contractors (California, Wyoming): On June 26,
1991 the U.S. EPA entered into a final
order/consent agreement with Wilson and
Hampton ' Painting Contractors, a painting
contractor in Southern California that shipped
hazardous waste to an illegal TSD facility in
Wyoming, A RCRA §3008(a) administrative
order was issued on November 8, 1990, for "non-
compliance with the RCRA generator regulations
which resulted in a final assessed penalty of
$20,000. Wilson and Hampton, as a part of the
settlement, agreed to purchase and utilize' a
solvent recovery system, prepare an article for a
national paint trade magazine discussing the
necessity of understanding and complying with
RCRA, present a seminar to the Painting and
Decorating Contractors Association concerning the
importance of compliance, and train their
personnel in regulations covered by RCRA and the
Department of Transportation.
State RCRA/CERCLA Enforcement
Actions
Beginning with the FY 1991
Accomplishments Report, EPA will be including ,
significant state enforcement actions submitted
by.the EPA Regional offices, We anticipate that
State actions will play a greater role in future
reports, \
State Agency for Surplus Property, (Jefferson City,
Missouri): This is a state agency that manages .
the surplus properties of the State of Missouri;'
The Missouri Department of Natural Resources
(MDNR) found that the facility had improperly
managed and disposed of hazardous waste. On
April 11, 1990, the MDNR issued an
administrative order that required the facility to
investigate and remediate any contamination.
The MDNR assessed a penalty against their
sister state agency for the hazardous waste
violations. On January 9, 1991, MDNR and the
State Agency for Surplus Property developed a
settlement agreement that required payment of a
monetary penalty and the establishment of a
state-wide hazardous waste training program for
state employees., A penalty of $22,000 was also
assessed.
CP Chemicals (New Tersey): The New Jersey
Department of Environmental Protection and
Energy reached agreement with CP Chemicals,
Inc., of Middlesex County, New Jersey, in
connection with an administrative enforcement
action for a series of water pollution discharge
violations. The company agreed to pay a penalty
of $3,2 million> and to investigate and clean up
groundwater contamination at its Sewaren
facility.
E.I. DuPont dc
(New Jersey): E.L DuPont
de Nemours agreed to pay the State of New
Jersey" a civil penalty of $663,000 in an
administrative enforcement action which cited
air pollution violations' at the company's
Deepwater (Salem County) plant. The company
also agreed to install improved equipment to
prevent excess ' emissions in the future, and
committed itself to a schedule to achieve
compliance with State emission limits.
Missouri State Penitentiary, Jefferson City. MQ
This facility is a correctional institution for the
State of Missouri. The Missouri Department of
Natural Resources (MDNR) found that the
facility had improperly managed and disposed of
hazardous waste. On May 18, 1990, the MDNR
issued an administrative order that required the
facility to correct hazardous waste management '
procedures. On January 30, 1991, MDNR and the
Missouri State Penitentiary developed a
settlement agreement that required payment of a
monetary penalty of $25,000. '
Orleans Sanitary Landfill. (New York): The, New
York State Department of Environmental'
Conservation (NYSDEC) took . ; vigorous
enforcement action against the Orleans Sanitary
Landfill (OSL) and its owner, John Smith, for
systematic under-reporting of waste accepted at
the landfill. In addition to obtaining the highest
penalty in New York history $3.1 millionthe
Department pioneered the use of several
innovative sanctions designed to insure that
future operations at OSL are conducted in full
compliance with environmental laws. NYSDEC
barred the owner of OSL from being involved,
owning or operating a solid waste management
facility operation anywhere in New York State.
In addition, the Department required the future
landfill operations to fund a Department monitor
to serve as NYSDEC's eyes and ears at the
facility and ensure future compliance; and it
required the hiring of a Certified Investigative
Auditing Firm to oversee and audit the company's
operations to ensure compliance with operating
requirements.
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Safety-Kleen Corporation: On November 21,
1991, the California Environmental Protection
Agency, Department of Toxic Substances Control
(DTSC) signed a consent agreement with Safety-
Kleen Corp. which resolves violations are fifteen
separate Safety-Kleen hazardous waste storage
and treatment facilities located in California. In
this agreement, DTSC agreed to process Safety-
Kleen's numerous permit applications in a
coordinated statewide review and provide
Safety-Kleen with DTSC's final approval
covering all applicable Safety-Kleen facilities.
Safety-Kleen agreed to pay a total of $1.3
million which consists of a penalty component of
$1 million and a $300,000 component which is a
reimbursement to DTSC for their cost associated
with reaching and executing the settlement
agreement.
Schenectady Chemicals, Inc.f (Schenectady, New
York): NYSDEC issued a comprehensive, multi-
media Order on Consent to Schenectady
Chemicals, Inc. (SCI), imposing a $1.3 million
penalty against SCI, and requiring the company
to undertake, subject to extensive Departmental
oversight, a wide array of compliance,
investigative and remedial measures in numerous
program areas including water, air and hazardous
waste. SCI must also develop and implement a
Best Management Practices plan at each of its
four facilities designed to identify specific
practices which will prevent or minimize the
potential for releases of pollutants to the waters
of the State. Altogether, SCI expects to spend up
to $60 million to meet its obligations under the
Order.
Terry Schulte Chevrolet (joint State & EPA
actions): On October 22, 1990, the South Dakota
Department on the Environment and Natural
Resources issued the state equivalent of a §3008
(a) order to Terry Schulte. Violations included
failing, to manifest properly, failing to make a
hazardous waste determination, failing to label
drums properly, failure to undertake activities
required for contingency plans such as posting fire
extinguisher locations, spill control materials,
and fire alarms. No penalties were collected,
although compliance was achieved and land ban
violations were referred to Region VIII EPA for
action.
On December 14, 1990, the U.S. EPA filed an
administrative penalty order against Terry
Schulte Chevrolet Incorporated, Docket No.
RCRA §3008 VIII-91-04. This action was at the
request of South Dakota due to the state not
having delegation for-land disposal restriction
violations. The violations included failure to
ship listed hazardous waste to an authorized
hazardous waste facility with the required land
disposal restriction notices and/or certifications,
and a penalty of $156,250 was proposed. To date
no settlement has been reached, and the case is
proceeding toward an administrative hearing
before an ALJ.
People v. Seagate Technology. Inc. dba Seagate
Magnetics Division (California): Seagate
Magnetics was investigated in regard to their role
in causing the unlawful transportation of
unmanifested plating waste to an unpermitted
facility. On December 7, 1990 a final judgement
was entered against Seagate Magnetics in Santa
Clara County Superior Court. The judgement
ordered the defendant to pay $600,000 in civil
penalties pursuant to the Hazardous Waste
Control Act, $250,000 pursuant to the Business and
Professions Code, $100,000 in cy-pres restitution to
the Department of Toxic Substances Control and
$42,197 in costs, for a total of $992,197. A
permanent injunction was also ordered.
Sola Optical USA. Inc.f (EldouJMO): This firm
manufactures optical lenses. The company
produces a lead sludge which they had disposed
of improperly. The Missouri Department of
Natural Resources (MDNR) conducted a multi-
media investigation of this facility and found
that the facility has caused lead contamination
in the Lake of the Ozarks. On May 15,1991, the
MDNR referred the case to the Missouri Attorney
General's Office for formal enforcement action,
which is to include environmental relief and
monetary penalties. The MDNR and Sola have
tentatively reached a multi-media settlement
(both waste and water programs) for Sola's past
hazardous waste management practices and
environmental damages. A penalty in excess of
$250,000 is being discussed.
Arizona v. Talley Pejense Systems On September
4, 1991, Arizona and defendant Talley agreed to
settle this civil action for a $500,000 penalty, the
largest environmental penalty in Arizona history.
The action, filed in October 1990, charged Talley
with 15 violations of Arizona's hazardous waste
laws. Under the agreement, Talley will amend its
application for a hazardous waste treatment
permit, meet record-keeping and employee
training requirements, and search for and clean up
any existing hazardous waste.
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FY 1991 Enforcement Accomplishments Report
USDOD/Tooele Army Pepot (North) (Tooele,.
Utah): The State of Utah completed negotiations
with the Tooele Army Depot concerning an August
24, 1990 NOV/CO issued by the State of Utah,
The agreement required Tooele to remedy all 136
counts of the NOV/CO.
Toxic Substances Control Act
(TSCA) Enforcement
TSCA enforcement embraces the basic
tenets of pollution prevention and data quality.
TSCA's regulation of existing and new chemical
substances encourages the manufacture and use of
substances that pose only reasonable effects on
human health and the environment. In FY 1991,
TSCA enforcement actions emphasized
compliance with the premanufacture
notification requirements for new chemical
review, the reporting and retention of
information under §8, compliance- with the
AHERA rule, and the proper use, storage, and
disposal of PCBs. Many settlements resolving
TSCA administrative enforcement actions are
notable for their inclusion of supplemental
environmental projects incorporating pollution
prevention and environmental auditing
provisions.
In the Matter of A&D International: On May 28,
1991, the Chief Judicial Officer signed a consent
order settling an administrative civil penalty
action. The Agency had charged A&D
International, Inc., with violations of the
Halogenated Diberizo-p-dioxin/Dibenzofuran
Test Rule and violations of the TSCA Good
Laboratory Practices Standards (GLPs). A&D
imported the chemical substance chloranil, for
which dioxin testing is required under the Test
Rule and §4 of TSCA. The Agency accepted the
payment of a penalty of $12,000 and an agreement
not to import chloranil in the future to settle this
case.
Airline Maintenance Facilities: During FY 1991,
Region II issued administrative complaints
against a number of airlines for PCB violations at
aircraft maintenance facilities. PCBs are
contained in transformers and other electrical
equipment used and serviced at the facilities.
Complaints were issued against American
Airlines (seeking $354,000 in penalties), British
Airways ($131,000) and TWA ($296,000) as part
of this industry-specific enforcement initiative.
la thrMatter of Alcolac, Inc.: In September 1989
EPA charged Alcolac with violating §5 and §8 of
TSCA. The violations impaired the Agency's
ability to evaluate a chemicals effect on human
health and the environment. Earlier in 1989,
Alcolac pleaded guilty in Federal court to
illegally exporting a solvent used in making
chemical weapons, which was ultimately to be
re-exported to Iran. In October 1990, Alcolac
agreed to pay a'civil penalty of $280,000, conduct
a TSCA compliance audit covering four U.S.
manufacturing facilities, and conduct two industry
outreach programs. In accordance with the
settlement agreement, EPA anticipates issuing a
demand letter for stipulated penalties based upon
the final audit report.
In the Matter^jif American CyanamkL Company
and In the Mattel* of Ruetger4-frfea.se Chemical
Company: These companion cases were EPA's first
administrative actions involving violations of
the terms of TSCA §5(e) consent orders. Under
§5(e), EPA may issue a consent order which
prohibits or limits manufacture, processing,
distribution in commerce, use, and disposal of a
premanufacture notification substance pending the
development and review of information
addressing potential risks. The settlements
included penalty payments of $28,345 by
Cyanamid, $3,600 by Ruetgers-Nease, and the
implementation by both companies of a Company
Standard Policy and Practice Directive.
In the Matter of Bedoukja,n. Research,. Inc.: The
Chief Judicial Officer signed a consent order
settling this TSCA §5 and §8 administrative civil
penalty matter. The settlement consists of the
payment of $37,200 civil penalty, implementation
of an environmentally beneficial project, and
additional certifications for TSCA compliance.
Bedoukian was charged with improperly
submitting to the Agency untimely and false
notices of commencement of the manufacture of
new chemical substances.
U.S. v. Bolidpn frtetech. Inc.: In a consent decree
entered on January 10, 1991, in settlement of a
civil enforcement action, Boliden Metech Inc.
agreed to undertake a sampling and analytical
program to determine the extent of PCB
contamination of several piles of shredded
materials containing precious metals. Once the
extent of PCB contamination is determined,
Boliden is required to dispose of the contaminated
piles and materials in accordance with the PCB
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FY1991 Enforcement Accomplishments Report
regulations. Until 1990, Boliden shredded
computer parts and other products at a shredder
facility in Providence, RI in order to recover
valuable metals. In the late 1980s, the piles of
shredded material were found to contain PCBs.
Boliden has now shut down the shredding
operation.
In the Matter oj Burlington Industries^ Inc.: In
February 1991, EPA filed a $3,061,000 TSCA
administrative complaint alleging violations of
§5 premanufacture notification requirements by
Burlington Industries. Settlement negotiations
are underway.
In the Matter of DSM Resins U.S.. Inc. (New
Jersey): This major TSCA §5 and §13 importer case
was settled in August, 1991, with an agreement by
the respondent to pay a penalty of $750,000 and
implement various steps to prevent recurring
violations. Under TSCA, anyone manufacturing or
importing a new chemical substance not included
on EPA's Chemical Substances Inventory must
submit a premanufacture notice at least 90 days
prior to manufacture or import. Compliance with
TSCA must also be certified by importers. EPA
inspections at DSM Resins found that the firm
had not filed appropriate notices for several
chemical substances. In addition, the company
has now implemented a computerized tracking
system to ensure that all of its imports comply
with TSCA rules.
In the Matter of General Electric Co.: In March
1991, General Electric Co. {GE) agreed to pay a
$150,000 penalty to settle Region I's complaint for
violations of the PCB regulations under the
TSCA. EPA charged GE with widespread
violations at its Pittsfield, MA facility: failing
to properly mark PCB transformer locations,
storing combustible materials near PCB
transformers, improper PCB storage, inadequate
recordkeeping, and failing to follow required PCB
spill response procedures. GE also violated its
approval for PCB incineration through improper
operating and recordkeeping procedures.
As part of the settlement, GE committed to the
removal of all of its PCB electrical equipment
from the Pittsfield facility over a period of three
years. The equipment to be removed from service
and properly disposed of includes over 130 PCB
transformers and over 1300 PCB capacitors. These
actions are expected to reduce the risks of PCB
spills and fires at the facility. EPA estimates the
cost of the removal and disposal project at over $1
million.
In the Matter of General Electric Chemicals, Inc.:
In June 1991, the Chief Judicial Officer approved
a settlement agreement with General Electric
Chemicals which included penalty, audit, and
pollution prevention provisions. A TSCA
administrative complaint was issued alleging
violation of §8{e), the substantial risk
information reporting provision. General Electric
Chemicals agreed to pay a $75,000 penalty, and
General Electric Company, GECs corporate
parent, agreed to conduct a TSCA §8(e)
compliance audit of all its domestic subsidiaries.
In addition, both GEC and GE agreed to
implement $890,000 worth of pollution prevention
projects involving reductions in emissions or the
use of acrylonitrile, 1,3-butadiene, various
phenols, 1,1,1-trichloroethane, and methylene
chloride. These chemicals are some of the
Agency's top 25 chemical candidates for pollution
prevention targeting.
In the Matter of General Motors, In the Matter of
CECOS, International, and In the Matter of CWM
Chemical Services (New Yorkk In March 1991,
Region II issued administrative complaints to
these companies for violations- of the TSCA
regulations and approvals relating to the
handling and disposal of PCB-contaminated
wastes. EPA inspections of the records at GM's
Massena, New York facility showed that
hydraulic fluid in some machines contained PCBs
in excess of 500 parts per million. These fluids
were processed through the waste water
treatment system where reclaimed fluid and
sludge from the process also had over 500 ppm of
PCBs, This sludge was solidified with sand and
limestone and shipped to the landfills operated
by CECOS and CWM (a subsidiary of Chemical
Waste Management, Inc.). These landfills hold
TSCA approvals issued by EPA for disposal of
PCB wastes. Under the conditions of their
approvals, PCB-contaminated wastes, of the sort
sent by GM, required testing prior to being
accepted for interment in the landfills. The
companies failed to test the wastes, and did bury
them. They should have rejected such wastes for
burial, requiring instead that they be incinerated
due to the elevated PCB concentrations.
In ihE Matter of Goodyear Tirg & Rubber
Company: On November 29, 1990, the Region VI
Regional Administrator signed a Consent
Agreement and Final Order (CAFO), resolving
the case against Goodyear Tire & Rubber
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FY1991 Enforcement Accomplishments Report
Company, Houston, Texas. The CAFO assessed a
$135,000 penalty. However, $121,500 of the
penalty was deferred pending timely completion
of the removal of PCB Transformers from .its
Houston facility in accordance with Remittance
Agreement The Remittance Agreement provided
that Goodyear shall remove all PCB
Transformers from its facility by October 1, 1990,
and spend at least $405,000 on the removal and
replacement of eight transformers. Goodyear had
been charged with improperly disposing of PCBs
(five leaking transformers) and failing to timely
repair or replace the five PCB Transformers.
In the Matter of Great I^orthern isfekoosa Corp.:
In the first joint effort in Region I under TSCA and
the Superfund Removal Program to address
violations of TSCA and subsequent remedial work
relating to the clean-up of PCB spills, Region I
entered into an administrative settlement on
September 30, 1991, with Great Northern
Nekoosa Corp, Under the agreement, Great
Northern agreed to pay a penalty and reimburse
EPA for its investigative and oversight costs of-
remedial work conducted at the company's
facility in East Millinocket, Maine. In addition
to spending in excess of $7 million for the
remediation of PCB spills, the company agreed to
pay an administrative penalty of $20,800 and to
reimburse EPA for its costs in the amount of
$210,000. The clean-up performed by. Great,
Northern Nekoosa Corp. was completed in-
January, 1991.
In the Matter of Hall-Kimbrell: In July and
August of 1991, nine additional administrative
cases were filed against Hall-Kimbrell
Environmental Services Inc. for alleged violations
of the Asbestos Hazard Emergency Response Act
("AHERA") involving Respondent's inspections of
schools for asbestos and its preparation of
management plans to abate asbestos found. Total
proposed penalties against this Respondent now
exceed $5.8 million and are the result of one case
each from Regions V and IX, and seven from
Region VII, in addition to the original eleven
from Region VIII. All of the complaints allege
that materials which may contain asbestos were
missed during Respondent's inspections, and the
Region V and IX complaints allege that the
resulting management plans did not contain all of
the elements required by the regulations
promulgated pursuant to AHERA. Negotiations
aimed at a national settlement of the outstanding
violations have been ongoing since September of
1990, but, since no settlement had been reached as
of August, EPA notified the 1300 local educational-
agencies in 40 states where Respondent worked
that there may be deficiencies in their
inspections and management plans. On September
6, 1991, EPA issued a TSCA subpoena to Hall-'
Kimbrell requesting , that EPA inspectors be
allowed to inspect the copies of management
plans stored in Respondent's Lawrence, Kansas,
warehouse. Also in September, the House
Subcommittee on the Environment, Committee on
Governmental Operations, held a hearing on
EPA's AHERA program in general and the
prosecution of this case in particular.
In the Matter of Halocarbon Products
Corporation: In one of the first TSCA
administrative actions seeking the statutory
maximum penalty of $25,000 per-day of
violation, the Administrative. Law Judge ruled
that notice to OSHA of the death and injury to its
employees does not relieve Halocarbon of the
duty to report under §8(e), the substantial, risk
information reporting provision of TSCA. The
ruling came through an Order granting EPA's
Motion to Strike Affirmative Defense. This
administrative enforcement action involves
failure to report substantial risk information
under §8(e) based upon the February 1989
chemical release incident at a Halocarbon
facility where one worker was killed and another
seriously incapacitated. The case is still pending
and a Hearing date has not yet been set.
In the Matter of JetCQ Chemicals 'Inc.: In this
TSCA administrative civil penalty action for
violation of the §8(a) Preliminary Assessment
Information Rule, Jetco agreed to pay a penalty of
$19,500, review and certify compliance with all
§8(a) reporting .requirements, and -prepare and
submit a TSCA compliance manual
Aluminum and Chemical Corporation,
Trgn.jwood Works,. Spokane, Washington: ... A
consent agreement between the facility and EPA
was signed in February 1991, assessing a penalty
of $30,600. The company paid $15300 in cash;
the remainder of the assessed penalty will be
permanently suspended, provided the company
spends $30,600 to dispose of PCBs remaining in use
at their facility. . The facility had been issued an
administrative complaint in November 1990,
alleging that the facility violated TSCA PCB,
regulations regarding disposal, recordkeeping and
inspections.
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In the Matter of Markem Corp.: On June 6, 1991,
Markem Corp. of Keene, NH agreed to pay a
penalty of $33,000 and undertake three
supplemental environmental projects not required
by law in a multi-media settlement of an
administrative complaint filed by EPA for the
company's violations of Federal PCB regulations.
This settlement is unusual in that each of the
three SEPs involves reduction or elimination of a
different pollutant. Each of the projects results in
the elimination or reduction of a pollutant and are
therefore beneficial for the environment: 1)
removal and proper disposal of a PCB
transformer; 2) installation of a cleaning-solvents
recovery system; and 3) a project designed to
eliminate the use of heavy-metal pigments in the
company's ink products. These three projects all
The estimated cost ' of these three projects is
$210,500. This settlement is the culmination of an
action begun by EPA in June 1990, for violations of
the Federal regulations promulgated under TSCA
controlling the use and recordkeeping of PCBs.
In
oj; J^ionsanto Chemical Corporation:
This administrative enforcement action was
brought for violation of TSCA §8(e). Monsanto
failed to report the results of a carcinogenicity
study of Santogard PVI within 15 days as
required. Pursuant to a consent agreement
Monsanto agreed to pay a fine of $198,000 and
conduct an environmental audit on its studies of
developmental toxicity effects, reproductive
effects, and carcinogenicity. Post audit, the
company paid $648,000 for the ^delations found in
the audit.
In the fiiatter of Moore Business Forms, Inc.: On
June 27th, 1991, EPA and Moore Business Forms,
Inc. signed a consent agreement settling a TSCA
case for $2.2 million the largest §5 penalty on
record. The consent agreement also required
completion of an independent TSCA audit, with
the highest stipulated penalties ever ~ $50,000 -
- for violations of TSCA §5 and §8. This also was
the first consent agreement to require an
Emergency Planning and Community Right-To-
Know Act (EPCRA) audit and training program.
Moore self-disclosed violations of TSCA §5 and
§8 to EPA in April 1991. After an expedited
safety review by EPA's Office of Toxic Substances,
the Agency granted enforcement discretion to the
company for release of customer-owned stocks of
paper products containing the chemical substances
involved in the violations. In exchange, EPA
secured Moore's agreement to accept EPA's
jurisdiction over the matter, to provide batch-
records, to waive its right to an administrative
hearing, and to cooperate fully in negotiating the
case. The company's request for further
enforcement discretion was denied pending the
signing of the consent agreement.
EPA cited the company with failing to notify the
Agency prior to manufacturing and using six
chemical substances- that did not appear on the
TSCA Inventory. §5 of TSCA mandates that no
person may manufacture or import a chemical
substance which does not appear on the TSCA
inventory without submitting to EPA a
premanufacturing notice (PMN). The complaint,
which was issued simultaneously with the
signing of the consent agreement, also cited Moore
for failure to provide a certification statement to
the district director at the port of entry
adequately representing the true compliance
status of a chemical substance.
In the Matter of Moses Lake Industries: In this
administrative civil penalty action, Moses Lake
disclosed to the Agency that it had violated'
TSCA §5 by importing new chemical substances
which did not appear on the TSCA Inventory of"
existing chemical substances, and that it had
failed to provide a certification statement to the
district director at the port of entry as the true
compliance status of these chemicals pursuant to
TSCA §13. This matter was settled for $130,000
following issuance of an administrative
complaint.
* '
In the Matter of New Jersey Transit Rail Corp.
(New Jersey): On September 27, 1991, a-'
settlement was executed in this case providing for
payment of a $120,000 penalty and including
significant pollution prevention provisions. The
Respondent failed to remove from service by July
1, 1986 transformers containing dielectric fluids
with more than 1000 ppm of PCBs, as required by
the TSCA rules. As part of the settlement, New
Jersey Transit agreed to spend nearly $110,000 to
conduct an extensive PCB sampling survey at
seven of its rail facilities; a total of 1050 samples
will be taken. The company also selected retro-
fitting or rebuilding of transformers as its means
of coming into compliance, which is
environmentally- " more sound than having the
transformers drained and refilled.
n Steel Mills, Portland, Oregon: A consent
agreement was signed on August 1, 1991, assessing
a penalty of $286,000, the largest TSCA PCB
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penally ever assessed in EPA Region X, Of this
total penalty, the company paid $143,000 in cash.
The remainder of the assessed penalty will be
permanently suspended, provided Oregon Steel
Mills spends at least $286,000 by 1993 to dispose
of PCBs remaining in use at their facility. The
complaint alleged violations of the federal TSCA
PCB regulations, including improper disposal,
storage, marking,, recordkeeping, and failure to
register PCB transformers.
Fort of Poland, Portland, Oregon: The Port was
issued an administrative complaint in March
1991, alleging that the Port violated TSCA PCB
regulations, including disposal, recordkeeping,,
and registration violations. A Consent Agreement
was signed in August 1991, assessing a penalty of
$55,208, a reduction based on the Port's
expenditures of $43,500 to dispose of PCBs at the
facility.
In the Matter of SIKA Corporation: In September
1991 the Agency issued an administrative
complaint against SIKA for violations of TSCA's
§5 premanufacture notification and import
requirements. The Agency proposed to assess a
civil penalty of $13,118,500, but reduced this.
amount by 50%, to $6.6 million, to reflect SIKA's
timely and voluntary disclosure of the violations
to the Agency in accordance with the TSCA §5
Enforcement Response Policy. This case was issued
as part of the .Agency's border cluster filing
initiative in which it took action against 23
facilities for violating law concerning the illegal
import or export of hazardous waste and certain
chemical substances and pesticides.
In the Matter of Texaco. Inc; On March 28, 1991,
an administrative complaint was issued against
Texaco, Inc., Midland, Texas, seeking a $157,150
civil penalty for PCB violations. The Complaint
charged Texaco with improper disposal of PCBs,
improper use of PCB capacitors, incomplete
annual documents, and storage for disposal of PCB
capacitors in excess of the one year limit imposed
by the PCB regulations. On November 7, 1991, a
Consent Agreement and Final Order was filed
with the Regional Hearing Clerk, assessing a
$134,520 civil penalty against Texaco, Inc. The
violations resulted from an August 1989, EPA
inspection of Texaco, Inc.'s Midland, Texas office.
Triangle performed testing required under §4 of
TSCA on the behalf of four chloranil importers.
The Agency filed a motion to strike five of the
affirmative defenses raised by Triangle
Laboratory in response to an administrative
complaint charging the laboratory with
violations of the TSCA Good Laboratory Practices
Standards. Despite the answer's general denial"
and thirteen affirmative defenses, the only
significant issue was whether a testing
laboratory can be subject to, TSCA. The Agency.
moved to strike all affirmative defenses relating
to liability, so as to address this issue directly.
That issue was never decided because a settlement
was soon reached. On October 18, 1990, the Chief
Judicial Officer signed a CACO to settle the first
enforcement action brought. against a laboratory
for violations , of the TSCA Good Laboratory
Practice Standards. Triangle agreed pay a civil
penalty of $13,950 in settlement.
In the Mattej^ of United8 Technologies'
United Technologies Corp. paid $730,000 in
August 1991 to settle an EPA action for
widespread PCB violations. EPA brought this
action under TSCA in December 1989, to address
violations at five UTC manufacturing .and
research facilities. The severity of the violations
and UTC's history of prior PCB .violations in New
England prompted the assessment of .the largest
TSCA penalty ever by Region- 1.
The settlement incorporates a unique commitment
by UTC to submit to a PCB testing program and
compliance audit by an independent consulting
firm. The audit component requires an intensive
PCB testing and removal program for a variety of
manufacturing and research equipment (hydraulic
systems; heat transfer systems, air compressors)
at four separate facilities. The audit is expected
to be completed in 1992. The audit firm will
monitor compliance with all PCB regulatory
requirements, including proper marking, storage,
and recordkeeping. The audit and the removal of
PCBs from equipment are expected to reduce the
risks of spills, improper disposal,. PCB fires, and
other human and environmental exposure at the
facilities. The audit firm will also analyze
UTC's management systems as they relate to PCB
compliance. UTC will pay stipulated penalties
to EPA for any violations disclosed by the audit. .
In the Matter of Triangle Laboratory. Inc.: EPA The settlement includes an additional
issued a civil administrative complaint against supplemental environmental, project in which
Triangle Laboratory, Inc., for violations of the UTC will remove and properly dispose of PCBs
TSCA Good Laboratory Practices Standards. from PCB electrical equipment at three facilities
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FY1991 Enforcement Accomplishments Report
at a cost to the company of $150,000.
In the Matter of Wego Chemical Co. (New
Jqrseyh EPA Administrative Law Judge Frank
Vanderheyden issued a ruling in June 1991,
holding Wego liable for violations of TSCA §8(a)
reporting rules. The ruling followed a two-day
trial in June 1990, during which Wego argued that
during negotiations to settle a previous
enforcement action the Agency lawyer had
promised EPA would not sue the company again.
EPA denied such representations had been made,
sought to prevent Wego from calling the EPA
lawyer as a witness, and argued that testimony on
the subject by Wego witnesses should be stricken
from the record. Judge Vanderheyden granted
these motions and held Respondent liable for the
violations. The Judge reserved his ruling on the
question of penalties.---
M.SL y. Norristown (PA) State Hospital: On
September 27, 1991, Region HI issued a complaint
alleging violations of §2614 of the Toxic
Substances Control Act to Norristown State
Hospital. This is the first Region III Worker
Protection Rule civil complaint issued. The
complaint alleges that the hospital failed to
conduct monitoring at the initiation of each
asbestos job, failed to institute a required
respirator program, failed to provide separate
storage facilities for protective and street
clothing, and failed to provide annual medical
examinations. , ,
U.S. v. Sugaihouse Realty. Ii>c. and William H.
Thayer (E.D. PA): In what is believed to be the
first use of a receivership to accomplish a PCB
clean up under TSCA, a District Court granted a
motion by the United States, and ordered the
appointment of a receiver to manage the clean up
of PCB contamination of the Jack Frost Sugarhouse
in Philadelphia, PA. The Court also entered
judgment against the defendants for $500,000 to be
used by the receiver to accomplish the clean up.
The United States requested this relief after
defendants' repeated failure to comply with
terms of consent decrees requiring clean up of the
site.
Emergency Planning and Community
Right-to-Know Act (EPCRA)
Enforcement
EPCRA establishes a structure at the state
and local levels to assist communities in planning
for chemical emergencies and requires facilities
to provide information to EPA on various
chemicals present in the community, which
shall be made available to the public. Under
§313 certain manufacturing facilities must
provide EPA with annual data on the amounts of
chemicals that they release into the
environment, either routinely or as a result of
accidents. In addition, facilities must report
accidental releases of "extremely hazardous
substances" and CERCLA "hazardous substances"
to state and local response officials, and report to
state and local officials inventories of chemicals
on their premises for which Material Safety
Data sheets exist. FY 1991 enforcement efforts
targeted nonreporters as well as late and
incorrect reporters.
Al| AiUffTOM Gourmet Company (Salt Lj|k.e City,
HtflM: On May 8,1991, EPA and the All American
Gourmet Company entered into a consent
agreement for violations of EPCRA §313. The
agreement was based upon failure to submit
required reports under EPCRA §313. In addition to
agreeing the pay a civil penalty of $25,740, the
All American Gourmet Company was required to
assist in the construction of a new sewer line
which will reduce and/or eliminate the
formation of hydrogen sulfide in the sewer
system.
InJhe Matter of Bittner Industries: On July 3,
1991, Region IV ratified a consent agreement and
order in this matter including a penalty of $6,000.
The Region had initiated an administrative
enforcement action against Bittner for failure to
report its processing of styrene and its use of
acetone in its facility in Diaz, Alabama in 1989.
The agreement includes Bittner's commitment to
reduce styrene emissions by either using a styrene
vapor suppressant additive in its manufacturing
process or by installing air scrubbing equipment.
The cost of either of these improvements is
estimated to be $20,000.
In the Matter of Bristol County Water Authority
On May 9, 1991, Region I signed a Consent Order
settling the civil administrative enforcement
action brought against Bristol County for
violations of CERCLA §103 and EPCRA §304 and
§312 resulting from a chlorine release. Under the
terms of the Consent Agreement and Order, Bristol
County will pay $7,000 and will make
supplemental environmental expenditures with
first year costs estimated at $60,000 to $70,000.
These expenditures will be for the replacement
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FY 199J Enforcement Accomplishments Report
all of the Water Authority's gaseous chlorination
systems with less hazardous liquid hypochlorite
systems.
In .re CBI Servfces: , On April 30, 1991, an
Administrative Law Judge (ALJ) awarded $99,000
in this case. Complainant had alleged that the
Respondent, CBI Services of Bourborutais, IL;
violated §313 of the Emergency Planning and
Community RighMo-Know Act (EPCRA) ' by
filing the required Form R's for six listed
chemicals 230 days after the due date of July. 1,
1988, and after an EPA inspection. The ALJ
lowered the complainant's penalty, holding that
because the date of inspection of a facility can be
controlled by EPA, the regulated community
cannot determine the point at which penalties for
failure to report will increase under the policy;
therefore, disparate treatment or the appearance
of disparity must result from the application of
the policy to these "nonreporters," Because the
CBI Services decision is the third that. questions
the basis of the distinction between late and
nonreporter, the Office of Enforcement issued
guidance for the resolution and initiation of all
§313 EPCRA cases against similar nonreporters. ,
Fashion Cabinet Manufacturing. Inc.
Jordan. Utah): On April 26, 1991,, EPA and the
Fashion Cabinet Manufacturing, Inc. entered into
a consent agreement for violations of EPCRA §313.
The agreement was based upon failure to submit
the. required reports under EPCRA- §313. In
addition to a $19,950.50 civil penalty, the
Agreement requires Fashion Manufacturing, Inc. to
undertake and complete capital , environmental
projects including: installation of a laminator
which would replace a substantial quantity of
toluene, methyl ethyl ketone and methyl isobutyl
ketone, installation* of a new dust collector and
removal of the underground toluene storage tank.
i
In the flatter of Fqam Design^ Inc.: On August 31,
1991, Region FV ratified a consent agreement and
order in this matter. The Region had initiated an
administrative enforcement action against Foam
Design of Lexington, Kentucky, for its failure to
report for 1988 its use of Methylenebis (phenyl-
isocyanate). Under the terms of the settlement,
Foam Design, will pay a penalty of $10,450 and
will spend approximately $53,000 on ah
environmentally beneficial project. That project
will consist of the construction of a system to
recycle polystyrene scrap, which will result in an
85% reduction in the amount of methylenebis
used.
In' the Matter- of Gary Chen^aJ Corp.: On"
December 14, 1990, in the largest EPCRA
settlement in the nation to date, Region I resolved
an administrative action against Gary Chemical
Corp., "a plastics and rubber manufacturing
facility in Leominster, MA, for failure to submit
estimates of its emissions of four toxic chemicals.
Violations included the failure to notify EPA and
the- Commonwealth of Massachusetts of its
emissions of lead compounds, antimony
compounds, barium compounds, and di-(2-
ethylhexyl) phthalate in calendar years 1987
and 1988. In settlement of the case, the company
submitted the required information and agreed to
pay a penalty of $142,800.
In the Matter of. Granite State Packing Co.: On
August 15, 1991, in settlement of an
administrative action against Granite State
Packing of Manchester, NH, the company agreed
to pay a $35,190 penalty and donate $35,400
worth of computer and other emergency response
equipment to the NH State Emergency Response
Commission and the Manchester Fire and Police
Departments. The computer equipment will assist
the SERC in tracking hazardous materials within
the state and will enhance fire and police *
hazardous material response capabilities. The
company was cited for failing to make timely
notifications,of an anhydrous ammonia release,
under §103 of CERCLA and P04 of EPCRA, and
for failing to provide chemical inventory data to
local and state contingency planning groups, under
§312 of EPCRA. .'
Longmont Foods Inc. (Loiigmon^. Colorado): On
June 26,1991, EPA and Longmont Foods Inc. entered
into a Consent Agreement for violations of EPCRA
§313. In addition to a $11,850 civil penalty,
Longmont Foods Inc. agreed to provide training"
courses for its management and other personnel
involved in the generation, handling, and-
disposal of hazardous materials. The Company
also agreed to expend $53,550 on an environmental
project including sending its sludge which it
currently landfills for disposal to the Department
of Energy's bioconversion program.
U.S. v- NVF Company On March 29,1991, Region
in signed a consent agreement and consent order iri
final settlement of an EPCRA §313 complaint
filed against the NVF Company (Yorklyn, DE).
The settlement of the complaint called for
performance of two pollution prevention projects
costing a total of $435,000 and payment of a
$16,500 cash penalty.
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FY1991 Enforcement Accomplishments Report
Pitt-Des MoineSf Inc.: EPA filed a complaint
against Pitt-Des Moines, Inc. (PDM) alleging
PDM failed to file a Form R for the calendar year
1988 for the substances nickel and chromium. In
July of 1990 the case was heard by Judge Daniel
Head. PDM argued that it did not exceed the
EPCRA threshold for these substances and was
therefore not liable. In a final ruling, Judge Head
assessed a penalty of $12,000.00 for failing to file
a Form R for nickel in 1988. The major points of
the decision are: rejects the argument that the
amount of material "processed" only includes the
portion actually affected by the processing,
accepts the contents of the company's Form R as
admissions, but rules that admissions can be
controverted or explained at trial, accepts as
correct the proposed penalty, but reduces, the
penalty for "mitigating factors" such as the lack
of possibility of any accidental release and the
lack of a danger to the people involved in the
processing. The decision provides further support
for calculating the EPCRA threshold amount
using the total amount of material processed,
rather than just the portion affected by the
processing.
In the Matter of Rainbow Pajnt and Coatings. Inc.:
An ALJ held that an action for penalties for
EPCRA violations is not subject to the automatic
stay provisions of the Bankruptcy Code. An order
granting EPA's motion for accelerated decision
was entered on August 8, 1991, Judge
Vanderheyden concluded that Respondent had
violated §313 of EPCRA and assessed a penalty of
$10,000.
A complaint was issued for failure to submit toxic
chemical release inventories for xylene for
calendar years 1987 and 1988. The respondent
answered the complaint denying the allegations
and further stating that it was a debtor, in a
Chapter 7 bankruptcy proceeding and had ceased
all business activities. A motion for accelerated
decision on the issues of liability and penalty was
then filed by Region VII. Judge Vanderheyden
concluded in his order that: 1) this matter was not
subject to the automatic stay provisions of the
Bankruptcy Code; 2) it was shown clearly and
conclusively that the respondent was subject to
the requirements of EPCRA and had violated
§313 by failing to submit Form Rs for xylene for
the years 1987 and 1988; and 3) complainant had
demonstrated persuasively that the penalty
amount sought was appropriate under the
provisions of EPCRA and the EPCRA enforcement
response policy.
Rohr Industries. Auburn, WA: On August 21,1991,
an ALJ issued an accelerated decision in response
to an EPCRA administrative complaint which
had been issued on June 19,1989 to Rohr for failure
to report to the Toxics Release Inventory the toxic
chemical 1,1,1-trichloroethane which it
"otherwise used" at its Auburn facility in 1987.
The decision granted EPA's motion for accelerated
decision on liability and penalty, and assessed
the full proposed penalty of $17,000.
In the Matter of St, Joe Minerals Corporation, Inc..
et al.t In the first administrative case filed in
Region VII for violations of the emergency release
notification requirements, EPA collected $63,000.
The settlement was entered on February 7, 1991,
resolving violations of §304 of EPCRA and § 103
of CERCLA. The company had failed to timely'
notify Federal, state and local authorities, as
required by CERCLA and EPCRA, of a release of
539,000 pounds of sulfuric acid from its facility in
Herculaneum, Missouri.
Spence-Geiger. I^c, (Golden. Colorado): On
September 6, 1991, EPA entered into a Consent
Agreement with Spence-Geiger, Inc. (SO for
violations of AHERA, The case involved the
failure to properly inspect and identify asbestos
containing materials in school buildings. The
settlement ensures that all potential inspection
and management plan violations of AHERA by
SG are addressed within one year. This is
significant because the total number of schools
involved is in excess of 160 in Colorado. This case
also sends a message to the regulated community
and school districts of the Agency's position on
the seriousness of complying with the AHERA.
Tiz's Door Sales, Everett, WA: EPA filed an
EPCRA administrative complaint against Tiz's
Door Sales alleging it failed to report three toxic
chemicals to the Toxics Release Inventory (TRI)
for the years 1987, 1988 and 1989. The final
assessed penalty was $14,450. A portion of the
penalty was deferred pending implementation of
supplemental environmental projects (SEPs)
consisting of the purchase of high efficiency spray
equipment and improvements to the paint spray
booth at the facility; this portion of the penalty
will be waived if the SEPs are installed. The
SEPs are expected to significantly reduce the
releases of TRI chemicals from this facility as
well.as reduce the amount of chemicals used at
the facility.
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FY 1991 Enforcement Accomplishments Report
Federal Insecticide, Fungicide, &
Rodenticide Act (FIFRA) Enforcement
EPA regulates the use of pesticides in the
United States under the authority of FIFRA by
requiring that all pesticides sold and used in the
United States, including imported products, be
registered with EPA. FIFRA is designed to
provide for pre-market clearance of pesticides
and post-market surveillance of pesticides and
pesticidal devices to ensure prevention of
unreasonable adverse effects upon human health
or the environment- In accordance with the
statute the States have primary enforcement
responsibility for pesticide use violations. FY
1991 enforcement efforts focused on violations of
the import-export requirements, good laboratory
practices requirements, product mislabeling, and
sale of unregistered pesticides.
In the Matter of Carter Wallace (Lambert Kay
Division): In October 1991, the Agency issued its
first ever administrative civil penalty complaint
alleging violations of the FIFRA Good
Laboratory Practices Regulations. The sixty count
complaint was issued for $260,000. Carter
Wallace was the sponsor and registrant of several
studies submitted to the Agency in support of a
pesticide registration, which were conducted by
AMA Laboratories. An EPA inspection revealed
that, despite a compliance statement signed by
Carter Wallace and AMA that the studies were
conducted in accordance with FIFRA Good
Laboratory Practices, serious violations had
occurred during the conduct of the studies. A
Notice of Warning was issued against AMA
Laboratories pursuant to FIFRA §14(a)(2), which
is the maximum level of action that can be taken
for a first-time violation by a laboratory under
FIFRA.
Columbia Cascade, Vancouver,. WA, Permapost
Products^ Hlllsboro,OR. and Pacific Wood
TreatingJportland. OR EPA Region X charged
three companies, Columbia Cascade, Permapost
Products, Inc., and Pacific Wood Treating, with
distribution of an unregistered pesticide because
they sold wood products which had been treated
with unregistered wood preservatives. The
Region settled with Pacific Wood Treating for a
penalty of $4,920 and with Columbia Cascade for
a penalty of $1,188.
In the Matter of Harlz Mountain Corporation: On
November 11, 1990, the Agency settled a civil
administrative action against Hartz Mountain for
violations of §6(a)(2) of FIFRA. Section 6(a){2)
requires-registrants to notify the Agency of any
additional factual information that comes to
light regarding unreasonable adverse effects of a
registered pesticide. An inspection of Hartz
Mountain's facility revealed that Hartz
Mountain had received numerous complaints of
adverse effects following exposure to the Hartz
Blockade Cat Flea and Tick Repellent and Hartz
Blockade Dog Flea and Tick Repellent. These
complaints contained sufficient information to
enable Hartz Mountain to investigate whether or
not the reported adverse effects and exposures
occurred. Four counts of the Agency's complaint
charged Hartz Mountain with failure to notify
the Agency of four series of similar incidents of
adverse effects reported to Hartz Mountain by its
customers. Hartz Mountain was charged with
failure to notify the Agency of fourteen incidents
of adverse effects where Hartz Mountain was
advised by an expert that the effect may have
resulted from exposure to the pesticide. Hartz
agreed to pay $45,000 in settlement.
In the Matter of Impex Industries Inc^ In a
decision that has broad implications for the
producers of ultrasound pesticide devices, the AL]
held that Impex Industries ultrasound units were
"misbranded" within the meaning of FIFRA.
Basing her decision on testing data presented by
EPA, the AL} found that Impex's ultrasound units
did not control or repel rodents as stated in
labeling. EPA brought the action against Impex
Industries in 1984. The ALJ's June 1991, decision
assessed Impex a $1,000 penalty.
In the Matter of Gotfoafti Chemical Co. Inc.: In a
settlement between EPA and Gotham Chemical
Co. Inc. in September, 1991, Gotham agreed to pay
a $21,250 civil penalty for violations FIFRA.
EPA had brought an administrative action
against Gotham, located in Stamford, CT, for its
misbranding and adulteration of pesticide
products used for controlling algae and bacteria in
water. Gotham sold these misbranded and
adulterated products to four CT hospitals in 1988
and 1989 for use in the water cooling towers of the
hospitals. The penalty obtained in this
settlement is the largest ever obtained by Region I
for violations of FIFRA.
In the Matter of Monsanto Company. Inc; In April
1991, the Chief Judicial Officer signed the consent
order approving the consent agreement in this
matter, which required Monsanto to pay a
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penalty of $287,920 to settle the administrative
action brought for violations of HFRA §17(a)
export labeling and notification requirements.
This represents the highest penalty obtained in
settlement of a FIFRA administrative action.
The consent agreement also requires Monsanto to
bring all past and future shipments of the
pesticide into compliance with the purchaser
acknowledgement requirement. The amended
complaint charged Monsanto with failure to
obtain the purchaser acknowledgement statement
for shipments of an unregistered pesticide and
failure to provide bilingual labeling.
In the Matter of jjando;z Crop Protection Corp,: In
October 1990, EPA filed an administrative
complaint against Sandoz Corp. for violating
§!7(a)(l) and §12(a)U)(a) of FIFRA by exporting
shipments of four unregistered pesticides without
first obtaining statements from the foreign
purchasers acknowledging that pesticides were
not registered for use in the United States, and the
same shipments violated FIFRA §17(a)(l),
§2(q){l)(H) and §12(a)(l)(E), because the
products were not labeled with the statement
"Not Registered for Use in the United States of
America", Pursuant to a consent agreement,
Sandoz paid a penalty of $98,000 and conducted
an audit to determine compliance with FIFRA §17
export requirements. EPA has issued a demand
letter for stipulated penalties of $11,000 for
violations found in the audit.
In ihe Matter of Shield-Brite Corporation: On
June 28, 1991, EPA was granted motion for
accelerated decision on liability which
favorably disposed of a number of arguments
raised during the Agency's recent pesticides
export initiative, The decision affirmed the
Agency's position that for pesticides exported to
non-English speaking countries, FIFRA requires
bilingual labeling, and that this labeling must be
affixed before the pesticides reach the foreign
country. The court rejected Shield-Brite's
argument that the requirement for bilingual
labeling was not valid because it appeared in a
policy statement rather than a regulation, and
stated that "the requirement for such labeling is
clearly established by FIFRA and EPA's
published interpretation." The Court rejected
Shield-Brite's argument that the language of the
policy could be read to allow either English QJ
the language of the importing country, holding
that such a construction would be illogical. The
decision clearly states that exporters must comply
with the bilingual labeling requirement before
the pesticides reach the foreign country even if
the export is an intra-corporate transfer.
In the Matter of Spnricidin International: This
was the first administrative enforcement FIFRA
case to be heard in EPA Headquarters. Sporicidin
appealed the initial order which held that
Sporicidin made unauthorized claims for two
disinfectant products, i.e., that the products
would kill the AIDS virus. The Chief Judicial
Officer affirmed both the findings and the
$10,000 violation penalty. In the text of the
appeal decision, the Chief Judicial Officer made
several legal findings of importance to both
FIFRA enforcement and to the administrative
process in general. The major finding is that the
phrase "claims made as part of the products
distribution and sale" is to be construed broadly.
Thus, the Chief Judicial Officer rejected
Sporicidin's contention that only claims that
physically accompany particular pesticide stocks
during their sale or distribution are covered by
FIFRA. EPA charged Sporicidin with making
false claims and using misleading information in
the process of selling its disinfectants to
hospitals. At the time of this violation, the
Agency had accepted no claims that a product
would kill the AIDS virus and had approved no
claims to that effect. Making such claims for a
pesticidal product was therefore in violation of
HFRA, This case was part of a 1988 initiative
against the making of such unacceptable claims.
U.S. v. EJ.
df
^ & Company, et alj
On March 29, 1991, EPA issued an administrative
complaint against EJ. DuPont de Nemours &
Company, Terra Chemicals International, Platte
Chemical Company and Lesco, Inc. for numerous
multiple sales and/or distributions of an
adulterated pesticide registered to DuPont. EPA
had earlier discovered that quantities of
DuPont's benomyl pesticide products had been
contaminated with atrazine (an herbicide) during
production by Terra Chemicals, an agent of
DuPont, some time in 1989. EPA issued stop sale
orders to DuPont and the other named
corporations shortly after discovering the
adulterated benomyl, and DuPont voluntarily
recalled the adulterated products. EPA's
administrative complaint seeks civil penalties
from each of the corporations for each of the 256
documented sales or distributions of the
contaminated benomyl.
At the time this complaint was issued, EPA
learned from DuPont that new batches of
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FY 3991 Enforcement Accomplishments Report
atrazme-contaminated benomyl had been
discovered. DuPont has begun a voluntary recall
of all of its benomyl products. On March 29,1991,
EPA issued stop sale orders to DuPont and the
related producing and distributing corporations,
prohibiting the further distribution of DuPont's
contaminated benomyl products.
Criminal Enforcement - All Statutes
U.S. v. Alcus and AEI-KAARS Production
Company (E.D. Kentucky): On February 1, 1991,
in the United States District Court for the Eastern
District of Kentucky, Lexington, Kentucky, Samuel
T. Alcus, III was sentenced to pay a $10,000 fine
and to serve three years probation pursuant to his
guilty plea to one count of the negligent discharge
of brine into the Birch Branch River in MagofHn
County, Kentucky between November 1989 and
January 1990. Alcus is the president of AEI-
KAARS Production Company, an oil production
company with several leases throughout Western
Kentucky. The company was also sentenced
pursuant to a plea of guilty, to one count of the
knowing discharge of brine into the Birch Branch
River during the same time period and was
sentenced to a $100,000 fine. As part of the
sentence, Alcus and AEI-KAARS paid $55,000 of
the imposed fine as restitution to the Kentucky
Hazardous Waste Management Fund, a fund
established to assist in financing the Kentucky
Environmental Crimes Workshop. The sentencing
marked an end to the first successful CWA
conviction in the history of Kentucky relating to
the stripper well industry.
U.S. v. Baytank Inc.. et al. (5th Cir.): On June 13,
1991, the U.S. Court of Appeals for the Fifth
Circuit affirmed the conviction of Baytank
(Houston), Inc., a chemical transfer and storage
facility, on two counts of improper storage of
hazardous wastes in violation of RCRA. On one
count, Baytank was fined $50,000, and received a
suspended sentence on a second count provided
that it execute a community service program. On
appeal, the defendant challenged jury
instructions given at trial relating to the
knowledge requirement under RCRA. The court
rejected the-challenge, and adopted the general
intent standard for criminal violations of RCRA,
holding that it is not necessary to prove that the
defendant knew that the waste had been
identified under EPA regulations as hazardous.
The court stated that "knowingly" as used in
RCRA means that the defendant knows factually
that he/she is storing, what is being stored, that
what is being stored factually has the potential
to harm others or the environment, and that
he/she has no permit. On appeal, the
government's challenge to the trial court's
overruling conviction on a 'number of counts was
successful. A retrial on these counts is pending.
U.S. v. Birchfield. et al. (N.D. Georgia): On July
17; 1991, in the United States District Court for
the Northern District of Georgia, Atlanta,
Georgia, Kenneth Birchfield was convicted by a
federal jury of the illegal disposal of hazardous
waste, in violation of RCRA. Birchfield was also
convicted of manufacturing and possession with
intent to distribute methamphetamine, carrying a
firearm during a drug offense, and possession of a
firearm by a convicted felon. Birchfield and his
codefendant James Angerami were also convicted
of conspiracy to manufacture and possess with-
intent to distribute methamphetamine and
possession of a nonregistered firearm. The
defendants and three (3) other individuals had
been involved in the illegal production of
methamphetamine from a business named Metro
Fab. During the illegal manufacturing process,
all wastes and substandard product batches were
dumped on the ground adjacent to the clandestine
laboratory located in the Atlanta metropolitan
area. The three (3) individuals, Glenda
Newsome, Edwin Eugene Trout and Shawn Lee
Rawls.had been convicted on April 26, 1991 of
conspiracy and possession of an illegal drug. All
defendants in the case have been sentenced to
serve lengthy prison sentences.
U.S. v, ohfl
Borohji
Technology Inc; On November 7, 1990, U.S.
District Judge Douglas Woodlock sentenced John
Borowski to 26 months in prison, followed by two
years of supervised release, and a $400,000 fine in
the first knowing endangerment criminal case
under the CWA. It is the longest prison term in
New England for an environmental violation,
The case concerned the illegal discharge of toxic
metals and dangerous chemicals into the sewer
system, and the endangerment of employees as a
result. John Borowski is president of Borjohn
Optical Technology Inc. of Burlington, MA. The
company was also fined $50,000 and ordered to
make a lump sum payment of $15,500 for medical
insurance for two of its former employees.
The illegal discharges stemmed from Borjohn's
metal finishing operations, in which the
company plated various metals, including nickel,
onto Bradley Fighting Vehicle elevation mirrors,
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M-l Tank mirrors, and cruise missile folding
mirrors. The defendants ordered employees to
dump the chemicals down the sewer using plastic
buckets. During the illegal disposals, the
employees were exposed to toxic levels of nickel,
nitric acid, and nitrogen dioxide. The discharges
to the sewer eventually led to the Massachusetts
Water Resource Authority's sewage treatment
plant, which in turn discharges to Boston Harbor.
U.S. v. grlttain (10th Cir.h A jury in the U.S.
District Court for the Western District of
Oklahoma convicted Raymond T. Brittain, a city
public utilities director exercising general
supervisory authority over the Enid, Oklahoma's
wastewater treatment plant, for failure to report
discharges of pollutants in violation of a CWA
permit. On appeal, the U.S. Court of Appeals for
the Tenth Circuit addressed the question of
whether a "person," as opposed to the permittee,
could be liable for a permit violation. The court
held that the statute plainly states that any
"person" (including an individual as well as a
corporation or other organization, i.e. a
municipality) who causes a permit violation
through knowing or negligent conduct, is subject to
criminal sanctions. The court went further,
however, and stated that responsible corporate
officers, to be held criminally liable, would not
have to "willfully or negligently" cause a permit
violation. Instead, the willfulness or negligence
of the subordinate actor would be imputed to the
supervisor by virtue of his position or
responsibility. .. -''
U.S. v. Buckley (6th dr.): On April 30,1991, -the.
US. Court of 'Appeals for the Sixth Circuit
affirmed" the convictions of Paul J. Buckley for
criminaiviqlations of the CAA and CERCLA. At
trial, ini the U.S. District Court for the Northern
District of Ohio, a jury found Buckley, the project
manager, guilty of knowingly emitting asbestos
into the environment in the process of demolishing
a stationary source, as well as for failing to notify
the appropriate Federal agency of a known
release of a reportable quantity of asbestos, as
required by CERCLA. On review, the Court of
Appeals upheld the trial court's finding that
both the CAA and CERCLA are general intent
statutes. The knowledge elements of both statutes
require merely that the defendant had knowledge
of the emissions themselves, not knowledge of the
statute proscribing the emissions. Thus, the
government need not prove wrongful intent or
awareness of wrongdoing in prosecutions under
these statutes. Good faith on the part of the
defendant is immaterial. The court rationalized
its holding by finding that dealing with
hazardous materials, such as asbestos,, puts
individuals on notice that criminal statutes
regulate the handling and disposal of the
substances.
U.S. v. Control Disposal, et al. (N.D. Texas): In
the first Federal criminal prosecution for
violations of a city's pretreatment program.
Control Disposal (located in Dallas, Texas) and
its CEO, Herman Gpldfaden, pled guilty to felony
violation of the CWA for disposing of industrial
waste trap residues into the Dallas sewer system.
The defendants also pled guilty to a felony
violation of RCRA. The company and Goldfaden
were sentenced on July 16, 199,1 with Control
Disposal receiving a one-million dollar criminal
fine. Goldfaden was sentenced to three years of
imprisonment and a $75,000 fine.
y.S. Y. Defense Systems Corporation: On
September 30, 1991, Defense Systems Corporation
a/k/a Hi-Shear Corporation pled guilty to two
RCRA counts in the United States District Court
for the District of Nevada. The corporation
agreed to pay a penalty of $375,000 on each count,
or a total of $750,000 to the federal government
and was placed on 5 years of probation. The
corporation further agreed to pay a penalty of
$375,000 to the State of Nevada.
Defense Systems Corporation retails and
manufactures explosive devices. The first count of
the indictment charged that the corporation
transported hazardous wastes, namely
propellants and other explosive wastes from its
California facility to its Nevada facility,
without a hazardous waste manifest as required
by RCRA. The second count charged the-
corporation with the illegal storage of hazardous
wastes, namely propellants and other explosive
wastes, at the Nevada facility although the
corporation did not have a storage permit or
interim status as required by RCRA.
On July 23, 1991 three employees of the Defense
Systems Corporation were indicted for four counts
of illegally transporting, storing and disposing of
hazardous waste and making a false statement to
EPA. Trial for the three individuals is scheduled
in the near future.
U.S. v. Exxon Corporation, et al. (P. Alaska): As
part of a global settlement of Federal enforcement
actions arising from the discharge of over ten
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million gallons of crude oil from the tanker "Exxon
Valdez" in the Prince William Sound, Alaska on
March 23, 1989, the two corporate defendants,
Exxon Corporation and the Exxon Shipping
Corporation, entered into a new plea agreement
with the government on September 30,1991. (The
Captain was prosecuted by the State of Alaska).
The original plea agreement was rejected by the
federal judge on April 24,1991.
In the new agreement, formally entered before the
court on October 8,1991, Exxon Shipping agreed to
plead guilty to three counts and Exxon
Corporation agreed to plead to one count of the
indictment returned against them in Anchorage,
Alaska on February 27,1990. Exxon Shipping pled
to a misdemeanor violation of the CWA for the
negligent discharge of oil without a permit, a
misdemeanor violation of the Refuse Act for the
illegal discharge of refuse (oil) from a ship, and a
violation of the Migratory Bird Treaty Act for
unpermitted killing of over 36,000 migratory
birds. The company agreed to pay a fine of $20
million. The Exxon Corporation pled to the one
Migratory Bird Treaty Act count, and agreed to
pay a fine of $5 million. Both defendants also
agreed to now make a remedial payment of $50
million to the State of Alaska, and $50 million to
the federal government for restoration projects
relating to the oil spill. A companion civil
consent decree requires establishment of a
$900,000,000 trust fund for remediation.
U.S. y. Exxon (New Jerseylt On March 20, 1991,
Exxon pled guilty to a misdemeanor information
charging it with negligently discharging oil into
the Arthur Kill without a permit, in violation of
the CWA. As part of a global settlement *
involving the United States, the States of New
York and New Jersey, and the City of New York,
Exxon agreed to pay a criminal fine of$5,000,000.
In addition, as described under "Water
Enforcement Program," above, on the same date in
the Eastern District of New York, Exxon's
agreement to a civil settlement of $10,000,000 was
accepted by the court.
U.S, v. Enviro- Analysts,. Irtfv et al. (D.
Wisconsin): On October 4,1991, in one of the first
successful environmental criminal trial involving
the sale of fraudulent laboratory reports, Enviro-
Analysts, Inc. and its owner, John Ruetz, were
found guilty of falsifying analytical data for
clients who were required to comply with the
CWA and RCRA. Ruetz and the lab were
convicted for routinely falsifying data by using
incorrect equipment and procedures to certify
compliance and fabricating test results for
samples that had never been taken. The vice-
president of Enviro-Analysts, Robert Schloesser,
was charged separately and previously pled
guilty to two counts of violating the CWA.
Eventually, Schloesser testified against the
corporation and Mr. Ruetz. The extent of the
effect of Enviro-Analysts' criminal conduct on the .
program reliance on voluntary compliance by the
regulated community is now being examined by an
extensive review of permits issued by the State of
Wisconsin.
U.S. v. Kamjl Salieb Gabra^ e| al. (New
On August 29, 1991 Kamal Gabra pleaded guilty
to a criminal violation of FIFRA. This case,
handled by EPA's Office of Inspector General,
involved illegal export of misbranded and
mislabeled pesticides, and falsification of EPA
documents in furtherance of the scheme. Gabra's
three companies. Liberty International
Agricultural Products, Nevacide, Ltd., and
Hercules Chemicals, U.S.A., shipped hundreds of
thousands of dollars worth of pesticides to
Middle Eastern countries since 1988, though not
all the shipments were illegal. Sentencing is
scheduled for November, 1991. Gabra apparently
took the orders for the pesticides from clients, and
others mixed the chemicals for him, Gabra has
agreed to provide information about those who
helped him circumvent Federal laws. 'Gabra is
also now out of the business of exporting
pesticides. >
U.S. v Reginald Max Goldsmith. Ga. (RCRA): On
August 30, 1991, in the United States District
Court for the Northern District of Georgia,
Atlanta, Georgia,* Reginald Max Goldsmith was
convicted by a jury on both counts of a two count
indictment charging violations of RCRA. The
indictment, handed down on July 2, 1991, charged
Goldsmith with the illegal transportation and
storage of hazardous waste to an unpermitted
storage facility. The proof at trial demonstrated
that Goldsmith, using a fraudulent company,
contracted with Hunt Chemicals Company to
transport and dispose of approximately two
hundred 55-gallon drums containing various
hazardous wastes. After improperly removing
the drums, Goldsmith provided Hunt Chemicals
with fraudulent documents representing
compliance with all EPA regulations regarding
the transportation and disposal of hazardous
waste. The drums ultimately were discovered,
and illegally discarded, at three separate
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FY1991 Enforcement Accomplishments Report
* '%
mj
naf
locations in the Atlanta metropolitan area.
Sentencing is scheduled for a later date.
U.S. v. Hassler (M.D. Florida): On November 21,
1990, Charles A, Hassler was sentenced pursuant
to his guilty plea to the charge of violating the
Land Ban Restrictions of RCRA. Hassler was
sentenced to serve three months community
confinement and to pay a $500 fine, Hassler, the
former Director of Public Works and City Engineer
for Longwood, Florida, admitted that in October
1988, he knowingly directed municipal employees
to illegally bury sixteen drums of hazardous
waste within 100 yards of the city's water
reservoir. Several of the drums ruptured, causing
contamination of the surrounding soil. The
sentencing marked a successful end to the nation's
first prosecution under EPA's recently
implemented Land Ban Restrictions,
U.S. v Croda^Inks. George Ault. George Moore,
Kevin G. Moora and John Michael Cox. Tn.
(RCRA/CW A/Title 18): On September 16, 1991, in
the United States District Court for the Western
District of Tennessee, Western Division,
Memphis, Tennessee, George Auit entered a plea
of guilty to a one count indictment charging a
felony violation of the CWA. Ault, a supervisory
employee of Croda Inks, an ink formulator and
producer, admitted to the knowing discharge of
solvent washes and water washes, which were
generated during the ink formulation process, into
McKellar Lake without a permit. Also indicted
on that date was George Moore, former general
manager at Croda's Memphis plant, for the
illegal storage of hazardous waste without a
permit, in violation of RCRA in addition to a
knowing discharge in violation of the CWA.
Moore's son Kevin G. Moore and John Michael Cox,
both Croda employees, also pled guilty to making
false statements and misrepresentations to EPA
Special Agents investigating the violations at
Croda. All defendants will be sentenced at a
later date. The corporation, pursuant to a guilty
plea entered in April, 1991 for negligent
violations of CWA was sentenced on July 10, 1991,
to three years probation and ordered to pay a fine
of $200,000, half to be suspended upon the
payment of $100,000 restitution to the State of
Tennessee Hazardous Waste Remedial Fund.
Further, the corporation was ordered to publish a
public apology, and incur the costs of remedial
action at the Memphis plant site.
U.S. v. International Paper Company (D.
On July 3, 1991, in Portland, Maine, International
Paper Company pleaded guilty to violations of
Federal laws at its Androscoggin Mill in Jay,
Maine, and was fined $2.2 million. The mill is
the largest paper mill in Maine, and the fine is
one of the largest imposed in Maine for
environmental violations. The company was
convicted of three counts of storing and treating
hazardous waste without a permit or interim
status in violation of RCRA, and two counts of
making false statements to the government in
violation of 18 U.S.C. §1001. From 1986 to 1988,
the company generated and mixed ignitable
waste solvents with waste oil prior to disposal by
incineration in the mill's power boilers. In 1987,
the company falsely stated that it did not
generate hazardous waste at its mill, and in 1986
it, falsely stated that its mill had only one
outfall to the Androscoggin River, when in fact it
had two. All of these crimes were committed
knowingly by the company. No individuals were
charged. The U.S. Attorney said that since 1988
the company has taken steps to come into
compliance with environmental requirements.
U.S. v Mark ftby, S.C. (CWA): On September 13,
1991, in Richmond, Virginia, the United States
Court of Appeals for the Fourth Circuit affirmed
the sentence of two years and nine (9) months
incarceration for Mark Irby (the longest jail term
ever handed out in South Carolina for an
environmental crime). Irby, the former plant
manager of a wastewater treatment facility, was
convicted of multiple violations of the CWA. He
was sentenced on November 28, 1990 pursuant to.
his conviction on charges that from March, 1987
through September, 1988, he knowingly
discharged sewer sludge into the Reedy River in
South Carolina, tampered and caused
falsification of wastewater monitoring reports,
and failed to report nonpermitted discharges to
the appropriate State and Federal authorities as
required by law.
Irby appealed his only sentence, which he is
presently serving. Irby asserted that the District
Court erred in increasing his offense level under
Part Q of the Sentencing Guidelines, which
states, if the offense resulted in an ongoing,
continuous, or repetitive discharge, release, or
emission of a pollutant into the environment, the
offense level increases by six levels.
The Court of Appeals found that the CWA's
definition of "pollutant" encompasses "sewage
sludge"." The record showed that Irby ordered the
discharge of approximately 500,000 gallons of
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FY1991 Enforcement Accomplishments Report
partially treated sludge at least twice a week for
two years. The District Court found as fact that
actions performed at Irby's direction allowed
sewage sludge from. the waste sludge holding
basin to be discharged virtually untreated into
the adjacent river. Because of the huge quantities
of pollutant discharged, the finding of the lower
court clearly was not erroneous, said the Appeals
Court.
U.S. v. Paul Tudor Jones n and William B. Ellgn
(D. MD): On April 15, 1991, William Ellen was
sentenced to serve six months in prison, 12 months
probation and 60 hours of community service
relating to his conviction on five felony counts of
violating the CWA. Ellen was the project
manager involved in the filling of 86 acres of
wetlands on the Eastern Shore of Maryland.
i*
LLj;- Y- Laughlin and Donnelly (N.D. New Yorkfc
On June 20,1991, the United States District Court
in the Northern District of New York reaffirmed
the principle that under RCRA, ignorance of the
law is no excuse. Defendant Laughlin, president
and/or plant manager of GCL Tie Treating, Inc.,
and defendant Donnelly, a supervisor at GCL,
were charged, in a twenty-seven count indictment
with the illegal storage and disposal of
hazardous waste without a permit. In a pre-trial
determination, the court agreed with the
government's assertion that, in order to obtain a
conviction under RCRA §6928(d)(2)(A), the
government need not prove that the defendants
knew that it was illegal to treat, store, or dispose
of hazardous waste without a permit. The
government, thus does not have to prove that the
defendants knew that a permit was required or
that the defendants knew that the company did
not have a permit. In coming to its decision, the
court explicitly disagreed with a contrary case,
U.S. v. Tohnson and Towera finding the reasoning
weak and unpersuasive. Instead, the court
adopted the rule from U.S. v. Hoflia which is
that due to the public welfare nature of RCRA,
proof of knowledge of the permit requirement or
permit status is not required.. For the first time, a
court in the Second Circuit ruled on the issue of the
state of knowledge necessary to prove a RCRA
disposal violation. This decision should have
important precedential value with the Second,
Circuit.
U.S. v. James Long, (New York): On May 17, 1991,
James Long pled guilty to a one count information
charging him with falsifying information
pertaining to asbestos removals performed by
Safe Air Environmental Group, Inc. at the
Bethlehem Steel Plant in Tonawanda, NY. (See
also discussion under "Air Enforcement Program,"
above, describing parallel civil proceedings
initiated in connection with NESHAPs violations
at this facility.) , This case was investigated
through the auspices of the Western District of
New York LECC sub-committee on environmental
crimes.,.
U,S. v. Louisville Edible Oil Products. Inc.. et al.
tfjh Cir.): On October 7,1991, the Supreme Court
refused to grant the Petition for Writ of Certiorari
filed by Louisville Edible Oil Products, Inc. This
action allows the appellate decision below to
stand. In a decision of first impression in the
context of environmental law, the,Sixth Circuit
Court of Appeals ruled that the Western District
of Kentucky was correct to deny defense motions to
dismiss the indictments based , on the
Constitution's prohibition against double
jeopardy. The reason for the decision was that,
under the dual sovereignty doctrine, the
prohibition against double jeopardy does not
apply to charges placed by separate sovereigns
(the Federal and county governments) even, if the
charges are both for the same offense. Even
though EPA had delegated EPA's CAA authority
to Kentucky, (which then redelegated to a county
agency) to enforce the NESHAPs requirements for
asbestos, the court found that the county agency
was not a mere "tool" or conduit for Federal
enforcement. The reason for this finding was that
EPA Jacks statutory authority to control'the
actions of the county agency, and indeed with
regard to the violator the county agency acted on
its own authority and despite EPA's conflicting
views on how to proceed on the violations. This
important decision has confirmed EPA's
traditional position that in the criminal context
the Federal government and the states maintain
separate, independent, and concurrent enforcement
authority.. As a result ,of this decision, the case
will now proceed to trial. The company, which
manufactures edible oils such as salad oil,
demolished or renovated two facilities that it
owns in Louisville, Kentucky. The indictment
charges the company, an affiliated company, and ,
several top, corporate officers with asbestos
related violations of CAA and CERCLA.
U.S, v. MacDonald and Watson Waste Oil
Company etLal. (1st Cir.): A circuit court.for the
first time addressed whether the RCRA's
"knowing" requirement applies to a corporate
officer who did not actually know of his
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FY1991 Enforcement Accomplishments Report
corporation's illegal act (as opposed to not
knowing the regulations which covers the
corporation's activity)! Following a jury trial
during September 1989, in the US. District Court
for the District of Rhode Island, MacDonald and
Watson Waste Oil Company, Eugene E.
D'Allesandro, President of MacDonald and
Watson, and two other MacDonald and Watson
employees were convicted, among other counts, of
knowingly transporting and causing the
transportation of hazardous waste to a facility
which " did not have a RCRA permit.
D'Allesandro's conviction was based on the
"responsible corporate officer" doctrine, oh
evidence that he was a "hands-on" manager, and
that he knew in the past the company had
violated RCRA. There was no direct evidence
showing that he actually knew that the
shipment of hazardous waste in question was
being transported to 'his company's disposal
facility in Providence, Rhode Island. The First
Circuit Court of Appeals vacated D'Allesandro's
conviction and rejected the broadest form of the
"responsible corporate officer" doctrine, which
would allow for the conclusive establishment of
the element of knowledge by a mere showing that
the individual held a- position of corporate
responsibility. At the same time, however/the
First Circuit affirmed that knowledge did not
have to be proven by direct evidence but could be
inferred from the defendant's position, conduct
and other facts and circumstances. The court went
further and stated that "willful blindness to facts
constituting the offense may be sufficient to
establish knowledge." The case was-remanded
for retrial of Mr. D'Allesandro, who is presumed
innocent unless proven guilty. The convictions of
the MacDonald and Watson Waste Oil Company
and the two other employees were affirmed.
U.S. v. Nanticoke Homesf Inc. (D. DE): The
largest employer in southern Delaware pled
guilty to Federal hazardous wastes violations'on
March 26, 1991, for storing hazardous waste
without a permit and failing to notify the EPA of
a release of a hazardous substance. Nanticoke
Homes, Inc. generated ignitable waste at the
company's Greenwood, DE facility and failed to
ship any hazardous wastes offsite for disposal
over a 31 month period, and company employees
crushed and buried drums containing hazardous
wastes on the property. As a result of the first
Federal environmental prosecution in the State of
Delaware, Nanticoke Homes, Inc. was sentenced
on July 30, 1991, to pay a fine of $300,000 and to
perform 400 hours of community service. The
parallel Nanticoke Homes criminal prosecution
and expedited environmental cleanup represent a
model example of multi-office, multi-program,
and civil/criminal coordination.
U.S. v. New York Bus Service. (Mew Yorkfe On
May 29,1991, New York Bus Service was assessed
a criminal penalty of $25,000 based upon its plea
of guilty to a one count information charging it
with negligently discharging ethylene gJycol into
the Hutchinson River, New York without a
permit, in violation of the Clean Water Act. This
case was a joint investigation between the FBI,
New York City Dept of Sanitation Police and
EPA;
U.S. v. North Bcnnington Board of Water
Commissioners, e* aL (D. Vermont): In the first
Federal criminal prosecution for violations
related to the SDWA's regulation of public water
supply systems, on October 29,1990, the municipal
Board, its Superintendent (Gerald Elwell), and
employee (Peter Lauzon), and the
owners/operators of the Pownal Water Company
(Murray and Bertha Lewis) entered pleas of
guilty, in the U.S. District Court for Vermont, to
charges that they filed false statements on
monthly water system operations reports.
(Charges against several co-defendants are still
pending.) Under the Safe Drinking Water
program, water suppliers must test for
contaminants such as turbidity and report results
to state authorities and to EPA, It was alleged
that the defendants knowingly falsified these
reports, in violation of the Federal Criminal
Code's false statement statute. Pursuant to a plea
agreement with the government, the Board was
fined $100,000, with payment suspended on
condition that the Board comply with all legal
requirements in the future. Lauzon was placed on
probation; Elwell and the Lewises were placed on
probation and fined $500.
U.S. y. Pillsbury Company (W.D. Mo.): The
United States obtained a plea agreement in this
case which is an excellent example of
Federal/state cooperation and coordination in
criminal enforcement of environmental statutes.
On October 20,1990, the Pillsbury Company plead
guilty to one count of negligent discharge of
ammonia into the Silver Creek in Joplin,
Missouri, which resulted in a substantial
fishkill. The plea agreement provides for
payment of a $100,000 fine.
Pillsbury also paid $75,000 to the City of Joplin
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FY1991 Enforcement Accomplishments Report
as compensation for damages from the spill. The
State of Missouri Attorney General settled its
case against Pillsbury for $100,000. The City will
use the settlements to purchase composting
equipment for use by the Southwest Missouri
Regional Solid Waste Commission, (SMRSWC).
SMRSWC is a non-profit corporation formed by
six southwest Missouri communities.
U.g. v. Jlaza Health Laboratory. (New Yorkfe On
January 31, 1991, Geronimo Villegas, the owner of
Plaza Health Laboratory, was convicted, after a
jury trial, of two counts of knowingly discharging
hepatitis tainted blood vials into the Hudson
River without a permit and two counts of knowing
endangerment for discharging those vials into the
Hudson River in violation of the CWA.
Following that conviction, the defendant moved,
pursuant to Rule 29 of the Federal Rules of
Criminal Procedure, for a judgment of a acquittal.
On December 13, the judge set aside the
convictions of knowing endangerment and
affirmed the convictions on knowing discharge.
The defendant was sentenced to one year
imprisonment, but is now out pending appeal. The
Government has appealed the dismissal, and the
defendant has appealed the convictions not
dismissed.
U,g. v Rjiy R. Pleasant andJWilliam f. McMurray,
Tn^fCWAl: On August 21, 1991, in the Eastern
District of Tennessee, Greenville, Tennessee, Ray
R. Pleasant and William F. McMurray. each
entered guilty pleas before U.S. District Judge
Thomas G. Hull to a criminal information
charging violations of Federal environmental
laws. The information charged Pleasant and
McMurray with a violation of the CWA alleging
negligent discharge of oil-contaminated water.
Pleasant and McMurray were also charged with a
violation of the Migratory Bird Treaty Act,
stemming from the deaths of numerous waterfowl
as a result of the illegal discharge. The charges
resulted from the defendants' actions on Memorial
Day, May 27, 1991, when they pumped water
contaminated with diesel fuel from underground
storage tanks and from an excavated pit on
Pleasant's property in Kingsport, Tennessee into a
storm sewer which emptied into the Madd
Branch of the Holston River.
U.S. v. Puregio Compa|tyf Ii\c.. et al. (D.
Washington): On September 18, 1991, the U.S.
District Court, sitting in Yakima, Washington,
entered into a plea agreement whereby the
PureGro Company pled guilty to one FIFRA
misdemeanor count. The case arose from the firm's
application of a wastewater mixture from a
company evaporator tank containing the
pesticides Dyfonate and Telone II to a field near
Pasco, Washington on May 12, 1987, in a manner
inconsistent with the labeling of those pesticides.
The pesticides were sprayed on the surface of the
field without calibrating the amount or
concentration of the pesticides, causing illness.to
several nearby residents. The Government
dismissed four RCRA counts against the company
and all the individual defendants. The Company
was fined $15,000. In addition, the District Court
ruled that, despite the "responsible corporate
officer" doctrine, a corporate employee
responsible for environmental and safety matters
could be held criminally liable only for
"knowing" conduct, and not for activities of others
of which he, "should have known." The court
further held that the term "knowingly" modifies
hazardous waste, as well as, treats, stores or
disposes of.
U.S. v. Queen Products Company,Incorporated and
John Thomas Cnttrell (W. D. Kentucky): On May
22, 1991, in the United States District Court for
the Western District of Kentucky, sitting in
Louisville, Queen Products Company (QPC) and
John Thomas Cottrell were sentenced pursuant to
their guilty pleas entered on March 20,1991, to an
information charging violations of RCRA. QPC
was also sentenced pursuant to its guilty plea to a
one count information originating in the Southern
District of Indiana, charging the company with
the knowing disposal of hazardous waste without
a permit. QPC, a corporation engaged in the
manufacture of electrical enclosures, admitted to
the knowing disposal of hazardous waste without
a permit at its Louisville, Kentucky facility and
at property owned by the president in
Jeffersonville, Indiana. The company was
sentenced to pay a fine of $165,000, half to be
suspended upon payment of $82,500 to the
Commonwealth of Kentucky as restitution and an
additional $10,000 to be paid to the State of
Indiana as restitution.
QPC was also placed on eighteen months
probation, and ordered to publish a public
apology and to incur the cost of remedial action at
the sites. Cottrell, the former plant
superintendent of QPC, admitted to the knowing
transportation and disposal of hazardous waste
without a permit. He was sentenced to serve four
months incarceration of a three year sentence, the
balance suspended, two years of probation, and to
pay a total of $10,000 in fines.
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U.S. v. Sanchez Enterprises. Kpc;,f et al. (E.P.
Tenn| A jail term for an environmental crime was
imposed against Gale Eugene Dean, the
production manager of General Metal Fabricators,
a metal coating facility in Irwin, Tennessee, and a
division of Sanchez Enterprises, Inc. On August 5,
1991, the U.S. District Court for the Eastern
District of Tennessee sentenced Dean to 40 months
imprisonment for his part in the illegal disposal
of spent solvents by burying the drums at the
General Metal Fabricators' site between 1984 and
1989. On August 22, 1991, Sanchez Enterprises,
Inc. entered a plea of guilty to a single felony
violation of RCRA for the illegal disposal of
hazardous waste. The corporation was fined
$150,000, of which $25,000 is to be paid into an
environmental fund for the State of Tennessee.
U.S.v, Saunders Asbestos Service, Imy et al. (D.
Maisi In a case against one of the largest asbestos
removal companies in Massachusetts, Saimders
Asbestos Service and its foreman, Dominic
Lamarra, were sentenced on April 1, 1991, in the
District of Massachusetts, for violating the CWA
by discharging large amounts of asbestos-laden
wastewater into the Charles River. Lamarra was
sentenced to four months incarceration, and the
company to a $5,000 fine and 2 years probation. In
1988, Lamarra supervised and directed his
employees to wet down asbestos with water and
then illegally dispose of the waste by pumping
the asbestos-laden water into a street in
Brookline, Massachusetts. The case is the result
of the first joint environmental prosecution
brought cooperatively by the United States
Attorney's Office, the Commonwealth's Attorney
General's Office, and the Commonwealth's
Environmental Strike Force,
U.S. v. United
Corp; On May 14,
1991, United Technologies Corp. pleaded guilty to
six felony violations of RCRA and was sentenced
to pay a $3,000,000 fine, the largest criminal fine
for a hazardous waste violation in the country.
The case related to the use and disposal of an
industrial solvent at the company's Sikorsky
Aircraft Division in Stratford, CT. Workers at
the facility sprayed the solvent on helicopter
transmissions after the transmissions were tested.
The resulting waste fell to the floor and was
routinely hosed and squeegeed out the door onto
the ground. An area of approximately 4,000
square feet was contaminated and eventually
removed by Sikorsky under EPA supervision,
During the relevant period of time, Sikorsky,
which employs 14,000 people, had one person
responsible for environmental compliance for all
of its facilities nationwide.
U.S. v. Michael Weitzenhoff and Thomas
Mariam: On October 2,1991, a jury, in the District
Court in Hawaii, convicted two former
government officials of the Hawaii Kai
Wastewater Treatment Plant of Clean Water Act
violations. The two were found guilty of illegally
dumping tons of partially treated sewage sludge
into the waters of Hawaii, and are the first
individuals convicted in Hawaii of CWA
violations. Michael Weitzenhoff, the formal
plant manager, and Thomas Mariani, the former
assistant manager, were convicted of five felony
counts under the CWA, and of an additional
conspiracy count, charging them with authorizing
the illegal discharges. The government alleged
the discharges occurred in 1988 and 1989 on an
estimated 40 occasions. The discharges were
secretly made at night to avoid detection.
Although it was not possible to determine the
exact amount discharged, an expert estimated
that some 440,000 Ibs. of solids were in the
millions of gallons of waste activated sludge
discharged through the outfall. Sentencing is
scheduled for January 13,1992.
U.S. v. Weyerhaeuser Co. (W.D. Washington):
On November 16, 1990, the Weyerhaeuser
Company agreed to enter a plea of guilty to five
misdemeanor counts for violations of the CWA.
The criminal charges stemmed from the
unpermitted discharge over a nine year period of
paint wastes and wash water into Shannon
Slough, a tributary of the Keyholes River, from
the end seal and stencil painting operation at the
company's Aberdeen, Washington sawmill. As
part of the plea agreement, Weyerhaeuser agreed
to pay a $125,000 criminal fine and $375,000 will
be placed in a trust fund to be controlled by public
officials as a form of restitution to the citizens of
Grays Harbor County. The money from the fund
will be used for cleaning up and eradicating all
pollution sources along the Shannon Slough.
Trustees of the fund will be representatives of
governmental entities, including EPA. This case
was the first effort of the newly created
Environmental Crimes Unit of the U.S. Attorney's
Office for the Western District of Washington,
now staffed full-time by two Assistant United
States Attorneys.
Contractor Listing
Under the Clean Air Act CAA §306 and
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the Clean Wafer Act CW4 §505, EP,4 has
authority to prevent facilities that violate
Federal water pollution and air pollution
requirements from receiving or being used in the
performance of Federally funded contracts,
grants or loans, by placing the facility on the
List of Violating Facilities. Federal agencies are
prohibited by statute from entering into
contracts, grants or loans (including subcontracts,
subgrants or subloans) to be performed at
facilities owned or operated by persons who are
convicted of violating air standards under CAA
§113(c) or water standards under CWA §309(c).
The prohibition is effective automatically on
the date of the conviction. Facilities which are
mandatorily listed remain on the List until EPA
determines that they have corrected the
conditions giving rise to the violations.
Facilities with records of civil violations
may also be listed, at the discretion of the
Assistant Administrator for Enforcement, upon
the recommendation of certain EPA officials, a
State Governor, or a member of the public (this is
referred to as discretionary listing). A facility
may be recommended for listing if there are
continuing or recurring violations of the CAA or
CWA after one or more enforcement actions have
been brought against the facility by EPA or a
state enforcement agency. 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 1991 were Exxon Corporation (Exxon Bayway
Refinery, Bayonne Terminal and Inter-Refinery
Pipeline) and Big Apple Wrecking Corp. The
Assistant Administrator's decision in the Exxon
mandatory listing case established that a listed
facility may include integrally related sites of
operation constituting one complex facility, in
this case a petrochemical refinery, pipeline, and
terminal.
In Big Apple, a discretionary listing case
against a construction and demolition company,
the General Counsel upheld on appeal the
Agency's interpretation of the definition of
"facility" as including the business address of a
construction company not the building or
demolition site where the violation occurred.
The General Counsel reversed on other grounds
the Case Examiner's decision to list Big Apple,
and remanded the case to the Case Examiner for
further proceedings.,
Big Apple Wrecking Corporation: In a
discretionary listing proceeding against Big
Apple Wrecking Corporation of Bronx, New York,
an EPA Case Examiner had determined in 1990
that Big Apple should be placed on the List.
On appeal of the Case Examiner's decision by Big
Apple, the General Counsel upheld EPA's
interpretation of the "facility" to be listed as
being the business address of a mobile or
transitory business, rather than the site at which
the violations occurred (which usually is not
owned by the violator). However, the EPA Case
Examiner's decision to place Big Apple on the List
was vacated and remanded for further
proceedings; the General Counsel held that he
was unable to determine from the record of the
proceeding whether the Case Examiner had
applied a pass rule that any series of violations
could constitute "continuing or recurring
violations" (the legal standard for discretionary
listing), or whether the Case Examiner had
conducted a case-by-case determination, as EPA
had indicated it would in the 1985 preamble to
the contractor listing regulations. Nevertheless,
the General Counsel -held that there were
undoubtedly numerous violations by Big Apple of
the asbestos NESHAPS standards, which could
constitute a basis for listing if the proper legal
standard was applied. The General Counsel
indicated that, on remand, the Region could
initiate a new listing proceeding against Big
Apple, or continue the current proceeding to
clarify the application of the legal standard
applied.
Exxon Company. U.S.A. (Linden and Bayonne.
MJh In a mandatory listing case involving Exxon
Company, U-S.A.'s (Exxon) Bayway Refinery,
Bayonne Terminal, and Inter-Refinery Pipeline
(1RPL), EPA determined that the three sites.of
operation are not independent facilities, and that
Exxon's facility consisting of the three sites
should remain on the List of Violating Facilities
(List). Exxon's complex petrochemical facility in
Linden and Bayonne, NJ, was listed after Exxon
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FF1991 Enforcement Accomplishments Report
Corporation pled guilty to criminal violation of
CWA § 309(c> for spilling some 567,000 gallons of
Number 2 heating oil into the Arthur Kill, as a
result of negligent failures in training,
supervision, and operation.
In denying the first "independent facilities
petition" filed under 40 CFR Part 15, the Acting
Assistant Administrator relied upon the
historical, operational, personnel, and budgetary
connections among the three sites of operation,
finding that the IRPL was controlled solely by
employees and managers of the Terminal and the
Refinery, and that together the three sites were
part of a larger system serving a unitary purpose.
The Acting Assistant Administrator also noted
that even if the Terminal and Refinery were
independent, each could be listed properly,
because each could be deemed to be a facility
which gave rise to Exxon Corp.'s conviction, in
view of the responsibilities each had for
operating the IRPL. Therefore, all three sites
were properly placed on the List, and remained
listed pending resolution of Exxon's petition for
removal of the facility from the List.
Wheeling-Pittsburgh Steel Corp,: A
discretionary listing action against three
Wheeling-Pittsburgh Steel Corp, (Wheeling-
Pittsburgh) facilities for continuing or recurring
violations of the CWA was concluded when
Wheeling-Pittsburgh entered into a Consent
Decree, settling the civil enforcement actions
against it. The discretionary listing case played
an important role in facilitating the settlement of
the judicial enforcement actions against
Wheeling-Pittsburgh, which included a
$6,000,000 civil penalty.
Multi-Media Enforcement
Bethlehem Steel/Lackawanna FlanJ: In FY 1990,
EPA became aware of serious CAA asbestos
NESHAPs violations in connection with the
demolition of BSC's Basic Oxygen Furnace at its
Lackawanna, New York plant. At that time, EPA
initiated a case concerning this violation, and
scheduled a full multi-media inspection for the
first quarter of FY 1991. As a result of this
inspection and other information EPA gathered
subsequently, EPA identified an additional
serious asbestos violation in connection with the
demolition of the Slab Mill, and significant
EPCRA and CWA/SPCC violations. EPA issued
an administrative complaint for the- EPCRA
violation; EPA issued several administrative
orders to BSC and its contractors for the
CAA/NESHAPs violations; EPA prepared an
administrative complaint for the CWA/SPCC
violation, which will be issued in early FY 1992;
and EPA terminated settlement negotiations with
BSC, and requested that DOJ immediately file a
civil action for the asbestos violations (which
was done on October 1,1991). EPA also continued
to oversee implementation of a RCRA §3008(h)
order issued to BSC in FY 1990 addressing cleanup
of contamination at the facility.
U.S. v. fipeing Company On June 28, 1991, Region
III issued complaints under §16 of the TSCA and
§3008(a) of RCRA against the Boeing Company,
Ridley Township; PA. The complaints were issued
following a multi-media investigation of the
Boeing Helicopter Company Division. The RCRA
complaint alleges fifteen counts, including the
failure to provide LDR prohibition levels on 107
LDR notifications, failure to ensure that facility
personnel complete initial safety training
programs, and failure to remedy the deterioration
or malfunction of equipment or structures, which
an inspection had revealed, on a schedule that
ensures the problem does not lead to an
environmental or human health hazard. The
TSCA complaint alleges nine counts, including
marking, storage and record keeping violations of
the PCB Rule.
Brookhaven National Labs: EPA performed a
comprehensive multi-media inspection of this
contractor-operated Federal facility located on
Long Island, New York, and documented serious
violations in a number of media. EPA issued
administrative complaints citing serious TSCA
and RCRA violations. EPA also issued an
administrative order under the Clean Air Act for
asbestos NESHAPs violations; EPA identified
serious CWA/SPCC violations, which will be the
subject of an administrative complaint to be issued
in early FY 1992. Further, EPA is in the process of
negotiating plume stabilization measures (a
pump-and-treat system), and a CERCLA IAG for
long-term cleanup of contaminated groundwater.
Finally, EPA required the submission of
information pursuant to §114 of the CAA and is
investigating potential violations of PSD and
VOC regulations.
Caldwell Systems. Inc.: Caldwell Systems (CSI),
a defunct commercial hazardous waste incinerator
in North Carolina, was the subject of a public
health advisory by a TSDR in July 1990. Region
IV issued a RCRA §3008(h) order in May 1991,
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FY 1991 Enforcement Accomplishments Report "
requiring corrective action in response to releases
that occurred at the CSI site. The Region also
conducted a site investigation under §104(b) of
CERCLA to establish whether the site poses any
current risk to area residents, and to identify
information relevant to the corrective action
under the RCRA order.
Street Site : On December 20, 1990, the
Region III Regional Administrator signed a
CERCLA unilateral administrative order for the
East 10th Street Site in Marcus Hook, PA. This
order was issued to several past and present
owners and operators of the site. The order
requires the respondents to identify and properly
dispose of bagged and loose asbestos, identify and
properly dispose , of drums of PCB-contairung
materials and other hazardous substances, and to
identify and properly dispose of other PCS
contamination. These tasks are to be completed in
compliance with the CAA and TSCA. The order
also restricts and conditions access to the site by
the respondents and their agents,
Hawk. lnc.f Phar Q|i Company and Jim
Daugherty, Ky- Kentucky Oil Well Violations:
CWA and SDWA authorities were used to stop
unpermitted discharges. The Region used its
authority under both the CWA and the SDWA to
address violations at two separate oil well
operations in Kentucky. In one case, against
Hawk, Inc., and Phar CHI, the Region negotiated
a combined settlement of $8,000 with .these
parties for the unpermitted injection of brine into
wells. The enforcement action was the result of.
joint inspections by EPA and the State of
Kentucky. In addition to the penalty, Hawk
completed remedial actions to stop the
unpermitted discharges,
The Region used the same approach in enforcing
against similar violations by Jim Daugherty in
the Taffy Field in Ohio County, Kentucky. To
settle this matter, Daugherty agreed to obtain a
UIC permit for one of the wells, to plug and
properly abandon, four other injection wells, to
monitor all wells and take any other necessary
corrective action. He also agreed to pay a penalty
of $5,000.
Lawtey Correctional Institute; A consent
agreement and administrative penalty order was
filed with the Regional Hearing Clerk on August
27, 1991 to fully resolve a CWA administrative
action against the, Florida Department of
Corrections (DOC) for IsfPDES violations at the
Lawtey Correctional Institute in Lawtey, Florida,
The agreement requires payment of a $12,600
penalty and the implementation of a mitigation
project consisting of a Radon survey and
abatement work at Lawtey and other DOC
facilities.
Region IV had cited the Lawtey facility for
exceedances of its NPDES permit limits and
assessed a Class I administrative penalty of
$25,000 against the DOC. In exchange for a 50%
reduction in the penalty, the DOC offered a series
of environmentally beneficial projects, the Region
accepted a Radon project valued at $35,000,
which involves a survey to determine the levels
of radon at DOC facilities. Those facilities with
radon readings above recommended levels will
undergo remediation to. reduce the radon
emissions.
Letterfcenny Army Depot Federal Facility
Compliance Agreement: On July 17, 1991, Region
III and the Department of the Army entered into
a multi-media Federal Facility Compliance
Agreement (FFCA) regarding the Letterkenny
Army Depot. The FFCA resolves numerous
outstanding RCRA and CWA violations and is
designed to bring the Depot into RCRA and CWA
compliance. The FFCA also commits the Depot to
perform a multi-media environmental audit of
the Depot, and further establishes pollution
prevention and waste minimization projects to
reduce the production and disposal of hazardous
wastes at the Depot.
Louisiana Land & Exploration (LL&E^ Ah
RCRA was the lead program with the UIC
program in issuing an Order to LL&E for failure to
notify in a timely manner, pursuant to RCRA, of
benzene injections. The State cited LL&E for UIC
and base RCRA violations and assessed a $25,000
penalty. LL&E owns an oil refinery in southern
Alabama which injects wastewater into Class I
UIC well. LL&E injection well was erroneously
permitted as a Class II well (a well associated
with production of oil and gas). LL&E injected
benzene into the well on several occasions in
amounts in excess of the Land Disposal Restricted
Treatment Standards. EPA's RCRA program
coordinated and led a multi-media inspection at
the facility. As a result of the order, the facility
then made, process changes that rendered the
waste non-hazardous.
Maiqg v. International Paper Co; On April 12,
1991, the State of Maine entered into a consent
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FY1991 Enforcement Accomplishments Report
decree with the International Paper Company.
Under the consent decree, International Paper
agreed to pay a civil penalty of $885,000 to
resolve multi-media violations of the State's
environmental regulations. The State of Maine
inspected International Paper's Jay, ME facility,
the largest paper mill in the state, in 1988 and
found numerous violations of the RCRA
regulations, as well as of water, air, hazardous
matter, and waste oil regulations. The consent
decree requires International Paper to comply
with all the applicable federal and state
environmental regulations and provide testing,
analysis, and monitoring of the site,
Monsanto - Pensacola. PL (RCRA/UIC): RCRA
and UIC issued a Consent Agreement and final
Order with an April 23, 1991 effective date to
Monsanto for disposing hazardous wastes in a
surface impoundment and the subsequent injection
of the waste to a UIC well. The order assessed a
total penalty of $29,300 for the RCRA and UIC
violations, The Monsanto Chemical Company
plant in Pensacola, Florida had a spill of maleic
anhydride, a land disposal restricted waste on
July 10, 1990. Because the material was
discharged into Monsanto's surface
impoundments, all of the material in the
impoundments became a listed hazardous waste
under RCRA's mixture rules. When the liquid
from the impoundments was then injected into an
underground injection well that was not permitted
to receive listed waste, a violation of the SDWA
occurred.
NASAJkangley Research Center: On December
31, 1990, a Federal Facility Compliance
Agreement (FFCA) was signed with the NASA
Langley Research Center located in Hampton,
VA. This FFCA addresses violations of both the
CWA and the TSCA and represented the first
multi-media FFCA completed in the Region.
Since this facility is in the Chesapeake Bay
drainage basin, the FFCA helped the
Chesapeake Bay Program goal of bringing
Federal facilities in the Chesapeake drainage
basin into compliance with environmental laws
by the end of December 1990.
Nelson Galvanizing: This facility, located in a
densely populated area of New York City, was
found to be operating with virtually no proper
management of its hazardous feedstock and waste
streams. Toxic chemicals were leaking into the
ground, and there was almost no security to
prevent persons from entering into the plant area.
A multi-media inspection identified significant
RCRA and EPCRA violations. A CERCLA
removal order on consent was issued for clean up of
the waste materials and reimbursement of EPA's
oversight costs. The order was complied with.
Administrative complaints citing RCRA and
EPCRA violations were then issued, seeking
penalties of about $1 million.
U.S.
Chemical Company On
September 30, 1991, EPA issued an administrative
complaint to Neville Chemical Company,
Pittsburgh, PA for violations of the chemical
reporting requirements under §8 of the Toxic
Substances Control Act. The complaint assessed a
penalty of $78,000. On the same date, EPA issued
a CAA administrative compliance order to
Neville ordering the company to comply with the
benzene Waste Operation National Emissions
Standard for Hazardous Pollutants. This facility
is one of the targeted sites in the Region's cross
media risk-based enforcement project.
Oxy OH & Gas USA, Inc.. Tn.: - On September 15,
1991, EPA executed a CERCLA §106 Order on
Consent with Oxy, the past owner and operator of
a contaminated area in Copperhill, Polk County,
Tennessee. Oxy has agreed to operate a
wastewater treatment plant that treats acid mine
drainage, deep mine waters, and contaminants
from an abandoned tailings pond, until the
influent to the plant meets water quality
standards. Oxy will also conduct a hydrogeologic
study of the area, install ground monitoring wells,
and upgrade the wastewater treatment plant.
Effluent limitations established by the State of
Tennessee's NPDES permit program are included
in the order as ARARs, and OXY has agreed to
pay stipulated penalties if the effluent from the
plant violates the ARARs.
Peach
_M£ials_
Industries.
Inc.
Site
(CERCLA/RCRAL Ga.: - On February 12, 1991,
the Region issued a CERCLA 106 Unilateral
Administrative Order requiring the removal of
numerous 55-gallon drums and vats containing
electroplating chemicals and other plating
process wastes, and all associated contamination
from an abandoned electroplating facility. The
order also required the removal of all
contamination contained in and about a surface
impoundment and drainage ditch at the facility.
Prior to the issuance of the order, EPA coordinated
its enforcement action with the State of Georgia,
Immediately after issuance of the EPA Order, the
State issued an administrative enforcement order,
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FY19911 Enforcement Accomplishments Report
pursuant to 'its' RCRA-equivalent statute,
requiring the present owners to apply for a
Closure/Post-closure RCRA Permit and to conduct
corrective actiort(s) at the facility.
The corrective action(s) required by Georgia's
order involved addressing . groundwater,
contamination problems (releases from the surface
impoundment primarily) from the disposal of
hazardous wastes at the facility. ,
U.S. v. Precision National Plating Services, Inc.
On September 30,1991, Region III entered into an
administrative order by consent pursuant to §1431
of the SDWA and §106 and §122 of CERCLA. The
consent order settles an appeal to the Third
Circuit Court of Appeals of an administrative
order issued.by EPA on February 11, 1991. Region
III had issued its first combined SDWA and
CERCLA unilateral administrative order to
Precision National Plating Services, Inc. requiring
remedial action for groundwater contamination at
the company's Clark's Summit, PA facility. EPA's
order,found that underground drinking water was
contaminated by chromium released from
Precision National's facility. The appeal of the
order will be withdrawn as part of the
settlement. :
U.S. v. STCPA. Inc.: On .September 25, 1991, a,
consent order was issued assessing a penalty of
$710,000 against SICPA Industries of America for
violations of TSCA §5, §8, and §13 and EPCRA
§313. SICPA's violations of TSCA include among
other things, the failure to file a pre-manufacture
notification before importing a new chemical
substance on 54 days in 1984 and 1985 and failing
to certify that these imports. either complied
with the requirements of TSCA .or were not subject
to TSCA. The agreed penalty for all TSCA
violations reflected in the consent order, including
those voluntarily disclosed to. EPA during
settlement negotiations, is $681,100, believed to
be the largest penalty ever collected by Region III
for violations of TSCA. The EPCRA penalty was
$28,900. , .
STAR Enterprises (Joint SDWA/RCRA Order):
On September 23, 1991, Region III issued an
administrative order by consent under RCRA,and
the SDWA to STAR Enterprises, a joint venture
partnership in which Texaco Marketing, Inc. has
an interest, to address a massive release of oil
that is migrating under a residential area in
Fairfax, VA.
The order constituted an arrangement for , the
removal of oil within the meaning of §311(c)(l> of
the CWA. In order to obtain access for STAR to
perform the work, it was necessary for the United
States to file suit against the Stockbridge
Community Association which owns an 8.3 acre
parcel of property between the site from which
the oil apparently originated and a community of
residences. The Association had refused to grant
access voluntarily because.its members were angry
about the spill and about the threats of explosion
and drinking water contamination the spill
presents. Access was granted by the Court on
October 2,1991, and work has commenced.
U.S. v. USX Corporation (Pairiess Hills. PA*
Region III sent USX a draft RCRA consent order
for corrective actions and also issued
administrative penalty complaints under the
CWA and TSCA and the United States sent a
demand for stipulated penalties for violations of
the consent decree in U.S. et al v. USX Corp.. in
response to violations at USX's Fairless Hills, PA
steel plant. > The draft RCRA order seeks to
initiate a process whereby USX would
characterize the extent of hazardous waste
deposition at the Fairless facility, evaluate the
risks posed by that contamination, and prepare
and evaluate alternatives for remediation. This
site was one of the targeted sites in the Region's
cross media, risk- based enforcement project ,
U.S. v. York Metal Finishing Company and Edwin
Walter (E.D. FA): The first Federal charges as a
result of an investigation conducted by the
Philadelphia Environmental Task Force were
filed on September 11,1991. York Metal Finishing
Company and its owner Edwin Walter were
charged with storing hazardous waste without a
permit and with discharging polluted
wastewaters containing cyanide into the
Philadelphia sewer system. The defendants
have agreed to pay $120,000 to reimburse the City
and to pay a fine to the federal government of
$100,000 for RCRA and CWA violations. In
addition, the company's discharge to the sewer
system has ceased and the illegally stored drums
have been removed. Sentencing for the defendants
has not been scheduled. The Philadelphia
Environmental Task Force was formed to organize
and coordinate Federal, state, and local resources
to more effectively investigate and prosecute
environmental crimes.
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V. Building and Maintaining a Strong National Enforcement Program
Program Development
FY 1991 Pollution Prevention Activities
A strong enforcement program creates a climate of deterrence which forcefully encourages
pollution prevention on the part of the regulated community. The costs of being in violation both the
direct litigation costs as well as those resulting from remediation and civil or criminal penalties -- may
be substantial. Compliance with stringent regulatory requirements creates an incentive for companies to
find better ways to reduce and manage their waste,
' Once the Agency has detected a violation and initiated an enforcement action, it can use its
formal negotiations/settlement process to fashion pollution prevention conditions as part of the consent
order or decree. During FY 1991, the Agency issued two policies relating to the systematic use of
pollution prevention conditions in enforcement settlements: The Policy on the Use of Supplemental
Environmental Projects in Enforcement Settlements (February 12,1991) and the Interim Policy on the Use
of Pollution Prevention and Recycling Conditions^n Agency Enforcement Settlements (February 25,
1991). Both encourage the federal negotiators to incorporate pollution prevention conditions in both
single and multi-media settlements when feasible, and lay out the boundaries and criteria the Agency
will use to consider whether to seek and/or accept a pollution prevention activity as a basis for
compliance and/or penalty mitigation activity. The Agency is interested in proposals that not merely
transfer problems from one media to another, but is instead seeking genuine and permanent source
reduction. (For further information contact OCAPO)
National Enforcement Training Institute (NETI)
Section 204 of the Pollution Prosecution Act of 1990 mandated that the Administrator establish
the National Enforcement Training Institute within the Office of Enforcement to train Federal, State,
and local lawyers, inspectors, civil and criminal investigators, and technical experts in the enforcement
of the Nation's environmental laws. During FY 1991, the Agency took several steps to meet that
statutory mandate.
An Advisory Council consisting of 38 representatives from EPA (Headquarters and the Regions),
the NEIC, DOJ, State and local governments, and academia was formed to focus on significant
enforcement training issues such as developing alternative funding approaches to assure that the NETI
is self-sustaining, communications, outreach/delivery, and adequacy and effectiveness of enforcement
curricula.
A key element of the NETI's training mission is the development and delivery of basic
enforcement training with a multi-disciplinary, multi-media perspective. An agenda for this course
was prepared and circulated for comment. New training on the Clean Air Act Amendments, RCRA, the
Non-APA Consolidated Rules (Part 26, and an Enforcement Workshop for Lab Personnel were developed
and delivered. Existing generic enforcement skills courses covering inspections, criminal investigations,
financial case analyses, technical and scientific case development, information systems, enforcement
communications, enforcement negotiations, and administrative practices and procedures were brought
under the NETI "umbrella." Over 1800 enforcement personnel at the Federal, State, and local levels
were trained in more than 60 courses delivered at EPA Headquarters and the Regions, the NEIC, and
FLETC. (For further information contact OCAPO)
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Addendum on Multi-Media Enforcement
The Office of Enforcement drafted an Addendum on Multi-Media Enforcement to the Policy
Framework on State/Federal Enforcement Agreements (1986). This Addendum describes EPA's
approach to multi-media enforcement and encourages, but does not require, States to undertake multi-
media enforcement; lays out how EPA will build state capacity; outlines general processes for advance
notice and consultation including strategic planning, enforcement cluster planning, and case screening.
Most importantly, the Addendum lays out principles for multi-media enforcement by EPA in delegated
or approved states that reflect the criteria in the Policy Framework. Members of the Steering
committee on the State/Federal Enforcement Relationship, EPA's Programs Offices and Regions
commented extensively on this draft in the last quarter of FY 1991. OE will issue the final Addendum
during FY 1992. (For further information contact OCAPO)
Contractor Listing Policy on The Role of Corporate Attitude,
Policies, Practices and Procedures
EPA issued a policy statement clarifying the role of corporate attitude, policies, practices and
procedures in determining whether the condition giving rise to a criminal conviction has been corrected.
This policy has been applied in several recent cases. Such policies, practices and procedures will
always be relevant when a facility that has been listed as the result of a criminal conviction requests
removal from the List. The significance of these factors will depend upon the degree of intent involved
in the violation. Cases involving fraud, concealment, falsification or deliberate deception are the most
serious. ' .
Factors which EPA will consider relevant include the existence or lack of appropriate and
effective programs to prevent and detect environmental problems and violations of law; appropriate
and effective training programs; effective communication of standards for employees, and enforcement
of those standards; and appropriate and effective corrective action (including environmental audits in
appropriate cases) after a problem or violation has been detected. (For further information contact
OCAPO)
Penalty Calculation Models (BEN and ABEL)
The BEN model, which is used to calculate a violator's economic gain from noncompliahce, was
used over 4,000 times by the EPA and 36 States. It was used in two States to set all time record civil
penalties in two enforcement actions. It is estimated that the ABEL model, which is used to analyze
violators' claims that they cannot afford to pay for compliance or penalties, was used in a similar
number of instances. The Office of Enforcement provides consultation help on inquiries and conducts
training courses in the Regions, Headquarters and one local government enforcement program (For
further information contact OCAPO)
Federal Facility Enforcement
In 1991, the Deputy Administrator approved an OE reorganization which created the new Office
of Federal Facilities Enforcement (OFFE). This reorganization consolidated the Office of Solid Waste
and Emergency Response's (OSWER's) Federal facilities program with those Federal facility-related
functions previously assigned to the Office of Federal Activities (OFA). OFFE is charged with securing
compliance by Federal agencies with all environmental laws. The creation of OFFE reflects EPA's
commitment to multi-media enforcement of environment laws against Federal facilities.
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The Federal government manages a vast array of industrial activities at its 27,000 installations.
These activities present unique management problems from the standpoint of compliance with Federal
environmental statutes. Although Federal facilities are only a small percentage of the regulated
community, many Federal installations are larger and more complex than private facilities and often
present a greater number of sources of hazardous waste requiring cleanup. During FY 1991, a total of 15
Federal agencies reported a combined budget of approximately $2.9 billion to be devoted to
environmental programs in the various media areas. This amount, a new record, was almost double the
FY 1990 record of $1.5 billion.
EPA has continued to encourage compliance at Federal facilities through a vigorous enforcement
and outreach program. Nationwide, over 820 inspections were conducted at Federal facilities during
Fiscal Year 1991. The cornerstone of the enforcement program dealing with the 116 Federal facilities
listed on the National Priorities List (NPL) is the negotiation of an enforceable Interagency Agreement
(IAG) under CERCLA at each facility, with specific schedules for cleanup of the hazardous wastes at
the sites located on those installations. During FY 1991, EPA negotiated 24 agreements under CERCLA
to accomplish required hazardous waste cleanups, for a total of 85 lAGs signed to date with other
Federal agencies. Additionally, to date EPA has signed 70 Federal Facility Compliance Agreements
(FFCA's) and issued 18 Unilateral Orders and Administrative Consent Orders with other Federal
agencies under statutes other than CERCLA.
EPA took several precedent setting actions in Federal facilities cases during FY 1991. One of the
most significant of these came as a result of a stipulated penalty dispute at the Department of Energy
(DOE) Fernald facility. This was the first time a stipulated penalty dispute under a CERCLA IAG was
elevated all the way to the EPA Administrator for resolution. In May 1991 the dispute was settled.
The settlement provided that DOE pay $100,000 in fines and spend $150,000 on extra environmental
projects at Fernald. This settlement received national attention by the Federal regulated community.
Another difficult and complex negotiation with DOE covered RCRA violations at the Rocky
Flats Plant in Colorado. The agreement, signed in May 1991, requires DOE to take steps to come into and
maintain compliance with the land disposal restrictions ("land ban") provisions of RCRA. In this case,
in lieu of stipulated penalties, a system was devised whereby EPA will be able to cite violations of the
agreement and declare the amount of the penalty that would have been assessed against a private
party in similar circumstances. DOE, in turn, must report the violation and the penalty amount to
Congress.
EPA also negotiated a federal facility compliance agreement to address TSCA violations at the
DOE gaseous diffusions plants in Ohio, Kentucky, and Tennessee. Also in the TSCA area, EPA
negotiated a TSCA compliance agreement with the Navy to address the large number of Naval vessels
contaminated with PCBs.
On September 13, 1991, EPA signed a Federal Facility Interagency Agreement under CERCLA
Section 120 with the Department of Interior, the Department of the Army, and the Illinois
Environmental Protection Agency, which provides for remedial action at the Crab Orchard National
Wildlife Refuge. The agreement is the first to date between the Department of the Interior and EPA
pursuant to CERCLA Section 120 and it is one of the first, if not the first CERCLA Section 120 agreement
to include more than one other federal agency as a PRP. It is also the first CERCLA Section 120
agreement to provide for private party participation in remedial activities pursuant to Sections 120 (e)
(6) and 122 of CERCLA.
The EPA Federal facilities program also represented the Agency on the Defense Environmental
Response Task Force, an interagency group tasked with reporting to Congress under the Base Closure and
Realignment Act of 1988. On November 5,1991, the Task Force submitted its report, which addressed:
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a) ways to improve interagency coordination within existing laws, regulations, and administrative
policies; and b) ways to consolidate and streamline, within existing laws and regulations,the practices,
policies, and administrative procedures of relevant federal and state agencies in order to expedite
response actions. EPA is continuing the base closure discussion. To support this effort, EPA established a
formal internal workgroup on base closure issues during FY1991. ': , '
EPA also worked during FY 1991 to develop a consistent approach to the environmental issues
associated with the closure of military bases. The initial focus of this effort was on Pease'Air. Force
Base in Portsmouth, N.H., where a proposal has been made to redevelop a portion of the base as an
aircraft maintenance facility. The EPA Federal facilities program facilitated the development of an
agency position that would enable the base to be redeveloped in an environmentally sound mariner
while at the same time ensuring that the Air Force can discharge its responsibilities under CERCLA.
EPA continues to recognize that it is far more efficient to prevent pollution problems at Federal
installations through educational outreach before those problems actually occur. The Agency has
continued to seek fundamental change in the behavior and understanding of Federal agency, personnel
regarding responsibilities in the environmental arena. To promote this change, EPA has continued ,to
coordinate a number of important interagency educational and outreach efforts in the enforcement area
to accomplish this goal. For example, during FY 1991 EPA continued to host the highly successful
EPA/Federal Agency Environmental Roundtable, where representatives of approximately 50 Federal
agencies meet monthly to exchange information. At the Roundtable, EPA media experts discuss existing
or proposed regulatory approaches affecting compliance by the other Federal agencies..The Roundtable.
also provides a forum for an exchange of technological information between agencies. , , .
EPA also continued a high-level dialogue with DOD and DOE to improve protection of the
environment at installations under their control. This was accomplished through the efforts of a
steering committee consisting of the Deputy Assistant Secretary of Defense (Environment), the Director
of the Office of Environmental Restoration and Waste Management at DOE, the Deputy Assistant
Administrator for Federal Facilities Enforcement at EPA, and seven workgroups consisting of subject
matter "experts" from each of the three agencies. These workgroups are developing position papers and
approaches to remove barriers, to developing effective compliance and cleanup programs. These
position papers will be coordinated throughout EPA, ' '>.',.-
To facilitate close coordination throughout the Agency on Federal facilities issues, the EPA
Federal facilities program established a "Leadership Council" consisting of headquarters
representatives, regional officials from program offices and regional Counsels as members. The
Leadership Council met for the first time during FY 1991. It has focused initially on policy matters and
strategic initiatives related to cleanup programs at Federal facilities. Priority topics included
oversight, accelerated cleanups, technology development and base closure.
* '"*,,.
Also during FY 1991, OFFE began a pivotal national dialogue on Federal Facility Environmental
Management. The participants in this effort, facilitated by the Keystone Center, met several times:
during FY 1991. This multi-party group includes representatives from DOD, DOE, EPA, State and tribal
governments,environmental and public interest groups.- The group has focused on the development of a
consensus concerning priority setting for the cleanup of federal facilities. Its deliberations will continue
in FY 1992. (For further information contact OFFE)
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National Reports on FY 1991 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. (For further information contact OCAPO)
National Penalty Report
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, (see Appendix)
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 1991 report is scheduled for
publication in May 1992. (For further mlormation contact OCAPO)
Enforcement Four-Year Strategic Plan
As part of EPA's Agency-wide strategic planning process, the Office of Enforcement developed a
comprehensive enforcement plan with both media-specific and cross-media components. The
Enforcement Four-Year Strategic Plan outlines the capabilities which will be needed to enhance
enforcement efforts for the future. Several of these efforts are now being implemented on a pilot basis,
while others will be fully developed over the next several years. The Strategic Plan is a sound guide
for the Agency's future enforcement efforts. (For further information contact OCAPO)
Enforcement in the 199Q's
The decade of the 1990's represents a new era in environmental enforcement as the Federal, State
and local governments and citizen's groups better combine their resources to vigorously enforce .the
nation's environmental laws. The strategic planning reflected in the Enforcement Four-Year Strategic
Plan, set themes and directions for the Agency's enforcement program. In FY 1991, the Office of
Enforcement, other EPA personnel in Headquarters and the Regions, and, in some instances, non-EPA
personnel, produced reports, collected in the Enforcement in the 1990's Project, which complement the
earlier Strategic Plan. These final reports provide recommendations for action in six discrete areas:
measures of success, the State/Federal relationship, environmental rulemaking, innovative
enforcement techniques, compliance incentives, and the role of local governments.
The 1990's Project reports establish an agenda that points in new directions and identify numerous
action steps for EPA staff at Headquarters, the Regions, the States, the local governments, and citizens.
EPA has begun to implement many of these, and more will be undertaken in the near future. The
Enforcement in the 1990's Project provided valuable, practical ideas whose implementation will
strengthen significantly the Agency's enforcement program. (For further information contact OCAPO)
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Intergovernmental/International Enforcement Activities
International Environmental Enforcement Training
Environmental issues have become a global concern and many countries are developing
requirements to protect the environment Without a strong program to ensure compliance with those
requirements and deter violators, however, environmental requirements will not achieve their intended
results.
In FY.1991, the US. Environmental Protection Agency, in conjunction with Poland's Ministry of
Environmental Protection, Natural Resources and Forestry, the Katowice Ecological Department and
the Netherlands Ministry of Housing, Physical Planning and Environment, developed a three-day
environmental enforcement training course to address these issues. This course was designed for
international use by many countries and cultures. The goal of the course is to develop a replicable
training program on environmental enforcement principles for any country, or locale interested in
enhancing compliance and achieving results. By introducing policy-makers, including government
officials, industry and academic leaders, and private citizens, to essential elements in the design of
enforcement programs, the course will create a forum within which officials can design their own
environmental management approach, write enforceable requirements and structure their own
compliance monitoring and enforcement programs. (For further information contact OCAPO)
Mexican Border
In FY 1991, EPA released the Integrated Environmental Plan for the U.S.-Mexico Border Area for
public comment. The plan is currently in the process of being revised. The integrated plan for the border
is part of a larger plan by which the economies of Canada, the U.S. and Mexico will be further united in
the North American Free Trade Agreement (NAFTA). The NAFTA will incorporate the integrated
plan for the border as part of the Administration's commitment to help strengthen environmental
protection on both sides of the border.
SEDUE (Mexico's EPA) and EPA are jointly responsible for administering the plan and have made
commitments to initiate cooperative environmental protection, monitoring and enforcement activities in
the coming years. Among the priorities identified in the plan are: control of municipal and industrial
discharges to surface waters; tracking the movement of hazardous waste and the proper disposal of
waste to prevent surface or subsurface water contamination; controlling and reducing air pollution
sources; and development of joint contingency response plans for spills of hazardous materials. These
initiatives will be implemented through the cooperative efforts of SEDUE, EPA and the states as
embodied in the Border plans and its annexes. (For further information contact OE-Water)
Clean Air Act
Inspector Training Delivery Demonstration
EPA signed a multi-year, cooperative agreement with Rutgers University at Cook College and
the University of Medicine and Dentistry of New Jersey Environmental and Occupational Health
Sciences Institute to demonstrate and deliver quality compliance inspector training on a quarterly basis.
to State, local, and EPA compliance staff. The training will fulfill requirements of EPA Order 3500.1.
While this training is not required of State/local personnel, State/local officials have identified the
need for systematic training and indicated a strong desire to participate. Non-agency personnel may
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attend if space is available. The agreement is a turn-key operation requiring communication and
marketing, training delivery, and evaluation functions. (For further information contact Stationary
Source Compliance Division (SSCD))
Lead NAAQS Attainment Strategy
The Lead NAAQS Attainment Strategy is part of the Agency Lead Strategy which is intended to
lower population exposure to lead. To accomplish this goal, the Office of Air Quality Planning and
Standards {OAQPS) identified 29 lead sources in non-attainment areas. These sources were inspected to
determine compliance status. Enforcement actions were initiated against eight sources for violations of
SIP requirements and ambient air quality standards. To ensure accurate recording of data, OAQPS has
positioned two monitors at each source to monitor the ambient air quality. In addition to the monitoring
efforts, OAQPS is recommending changes to SIPs in order to provide greater enforceability in
regulations. (For further information contact SSCD)
Rule Effectiveness
The Stationary Source Compliance Division has been working to revise the Rule Effectiveness
protocol. Revisions stress State involvement in the program and address calculation methods and
application of the results of the studies to challenge the 80 percent effectiveness default value in the
ozone strategy. The national protocol document should be issued early in FY 1992. (For further
information contact SSCD)
Compliance Monitoring Strategy
SSCD issued the Revised Compliance Monitoring Strategy (CMS) on March 29,1991. The revised
CMS provides 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 demonstrated that a closer coordination and exchange
between the Region and State was 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 requires additional reporting activities and responsibilities. Additional
reporting 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. These efforts will help build a stronger State-Federal partnership. In addition to
reporting activities and responsibilities, a network of CMS Regional Representatives has been
established to ensure successful implementation of the strategy. (For further information contact SSCD)
Early Reductions - State Delegation
Under the Early Reductions Programs, a source must submit an enforceable commitment to EPA or
its delegatee, pledging to achieve the required emission reductions to qualify for a six year extension of
compliance with MACT.
A draft "Early Reductions Program; State Delegation Manual' was prepared to combine some of
the requirements currently used by NSPS, NESHAP, and PSD programs. Recommendations are provided
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on the criteria a Regional Office should consider in evaluating a State's request for delegation. (For
further information contact SSCD)
Significant Violator/Timely and Appropriate Guidance
A substantial revision to the Agency's Significant Violator (SV) and Timely and Appropriate
Guidances has been under development during the past two years to: (1) encourage a greater degree of
team-building and cooperative resolution of Significant Violators by all responsible agencies, <2)
encourage agencies to give priority attention to those violators which they believe are most
environmentally important; (3) permit an increased degree of agency flexibility in identifying and
resolving Significant Violations and, (4) provide a more accurate picture of the time and resources
necessary to bring and maintain major sources into a state of continuous compliance.
The guidance specifically defines what a Significant Violator is and gives agencies two options
in resolving them. They may resolve all Significant Violators or prioritize the Significant Violators
with the use of a checklist provided in the guidance. The violators would then be resolved according to
their ranking. The guidance is expected to be effective in mid FY 1992. (For further information contact
SSCD)
Volatile Organic Compound (VOC ) Technical Agenda Activities
Ten VOC "Technical Agenda" activities were accomplished by the Stationary Source Compliance
Division during FY 1991. These projects were selected after surveys of the Regions identified where
guidance and support were needed to assist Regional and State/local agencies enforce the air
compliance program. The projects consisted of compilation of data bases and policy documents,
development of inspection procedures and clarification of test methods so that the compliance status of
VOC sources could be determined and appropriate, consistent enforcement follow-up activity
determined. (For further information contact SSCD)
Stratospheric Ozone Protection Compliance Program
Title VI of the Clean Air Act Amendments of 1990 expands the restrictions on consumption and use
of chemicals that deplete the stratospheric ozone layer; adds new chemicals to the list of those
already regulated, and; accelerates the phaseout of CFCs and halons. The Amendments add carbon
tetrachloride, methyl chloroform and ten previously unregulated CFCs to the list of chemicalsS
controlled by the Rule to Protect the Stratospheric Ozone. The Agency built upon the existing program
to ensure compliance among producers and importers of the newly regulated chemicals. The compliance
program relies upon the submission and analysis of quarterly reports, production and shipping records,
information from U.S. Customs and inspections to monitor compliance. (For further information contact
SSCD)
Clean Air Act - Mobile Sources
Enforcement Provisions for Reformulated Fuels, Anti-dumping and
Oxygenated Fuels of the Clean Air Act Amendments of 1990
The Office of Mobile Sources (OMS) established workgroups to draft the new enforcement
provisions, through negotiated rulemaking, prescribed by the Clean Air Act Amendments of 1990.
These enforcement provisions include: reformulated gasoline regulations, anti-dumping regulations, and
oxygenated gasoline guidelines to be implemented through a State Implementation Plan (SIP). The
purpose of the reformulated gasoline regulations is to reduce VOC and toxic emissions by at least 15% in
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the nine most severe ozone non-attainment areas with the option for many other areas to enter the
program as well. The purpose of the anti-dumping regulations is to prevent the dumping of "dirty"
gasoline components removed in the reformulated areas into ozone attainment areas that would
degrade air quality from levels below that resulting from the use of gasoline produced in 1990. The
purpose of the oxygenated gasoline guidelines is to reduce carbon monoxide (CO) emissions in 39 CO non-
attainment areas throughout the country during the winter months by the addition of oxygenates (e.g.,
alcohols and ethers) to gasoline. Enforcement of the oxygenated program will be handled by the
respective state, rather than by the EPA. (For further information contact FOSD)
Volatility Enforcement Program
Last year OMS increased the efficiency of field inspectors by equipping each with a reliable and
accurate instrument for quickly measuring gasoline volatility in the field. This eliminated the need to
ship over 9,000 samples (90%) for enforcement analysis to the laboratory in Ann Arbor and resulted in
an enormous cost savings. This new device enabled inspectors to inform facility operators on site of
potential violations and advise that the product be removed from distribution or sale until it was
brought into compliance. More importantly, EPA resources were able to reach a much larger segment of
the regulated industry. (For further information contact FOSD)
Clean Water Act
Chesapeake Bay Enforcement Initiative
Upon assuming the chair of the Chesapeake Bay Executive Council in December 1990, EPA
Administrator Reilly announced two concrete goals: 1) reducing the Clean Water Act significant non-
compliance (SNC) rate of major dischargers in the Bay watershed by 50% by the end of calendar 1991
and 2) bringing all Federal facilities located in the Bay watershed into full compliance with all
environmental statutes by the end of 1991. Through an enhanced enforcement effort by EPA Region III
and the Bay States of Maryland, Pennsylvania, and Virginia, the 50% reduction in the SNC rate was
achieved by December 1991, and nearly all the Federal facilities had been compelled to fully comply.
Region III and the Bay States also executed a long-term strategy for increased enforcement in the Bay
watershed. (For further information contact OE-Water)
Wetlands Penalty Policy
On December 14, 1990, EPA issued the final "Clean Water Act Section 404 Civil Administrative
Penalty Settlement Guidance and Appendices." The document provides guidance to EPA staff on
calculating an appropriate settlement penalty for Class I or Class II Section 404 administrative penalty
proceedings. The guidance considers all of the statutory penalty factors and contains a matrix for
environmental significance. The statutory criteria portion of the policy can also be used to calculate
judicial settlement amounts. Use of the Guidance will promote more nationally-consistent settlement
penalties for Section 404. (For further information contact OE-Water)
Publication of Proposed Non-APA Penalty Procedures
On July 1, 1991, EPA published in the Federal Register a proposed rule for assessing
administrative penalties under several statutes without recourse to the Administrative Procedure Act.
The proposal encompasses actions under the NPDES and Oil Pollution Act sections of the Clean Water
Act, the Underground Injection Control provisions of the Safe Drinking Water Act, as well as elements
of CERCLA and EPCRA. The Agency also announced its plan to use these procedures as guidance for the
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Clean Water Act sections before the rule is promulgated as final, EPA is now considering the public
comments received on its proposal, (For further information contact OE-Water)
EPA/Army Guidance on Judicial Enforcement Priorities
During FY 1991, EPA and the Department of the Army jointly issued guidance to the EPA Regions
and Army corps of Engineers districts on judicial enforcement priorities for unauthorized discharges of
dredged or fill material to waters of the United States in violation of the Clean Water Act. The stated
purposes of the guidance are: encouraging consistency in the manner in which EPA and the Corps enforce
the Act's requirements nationally, protecting the integrity of the Section 404 regulatory program, and
directing limited program resources in a manner that produces the most beneficial environmental
results, (For further information contact OW-Office of Wetlands, Oceans, and Watersheds-Wetlands
Division)
Implementing the Regulatory Definition of Significant Noncompliance (SNC) for
Industrials Users (IU)
In July, 1991, the EPA promulgated modifications to the General Pretreatment Regulations (40
CFR 403) which included a regulatory definition of SNC for Ills. In response to comments and questions
from the regulated community, the EPA issued a policy statement which clarifies how the definition is
to be properly implemented. The policy clearly establishes a rolling quarters evaluation of SNC,
similar to the NPDES direct discharge program, and identifies how POTWs and EPA Regions are to use
effluent data in determining SNC, This policy promotes parity in how IU SNC is determined and
allows the EPA to more efficiently assess the implementation of the National Pretreatment Program.
(For further information contact OWEC)
Guidance on Division of CWA Administrative Penalties with State or
Local Governments
On September 27, 1991 EPA issued to Regions, guidance on the issue of whether the 1987 Clean
Water Act (CWA) authorizes EPA to divide administrative penalties with State or local governments.
The Agency had previously issued guidance on the subject of dividing judicial penalties with the States
(October 30, 1985). Based on a review of the relevant statutes (the CWA and the Miscellaneous
Receipts Act), the guidance finds that no authority exists under the CWA administrative penalty
authority for EPA or an administrative law judge to award any portion of an administrative penalty to
a State or local government. The CWA limits the administrative assessment of penalties to penalties
for violations of Federal law. Further, the Miscellaneous receipts Act requires that penalties finally
assessed by an administrative law judge must be paid only to the United States Treasury, (For further
information contact OWEC)
Revised Pretreatment Compliance Inspection Checklist
On September 27,1991, the final revised Pretreatment Compliance Inspection (PCI) checklist was
transmitted to the Regions. A revised PCI guidance document and a question-by-question PCI reference
guide were also transmitted with the checklist. This package was developed to replace the PCI section
of the Fretreatment Compliance Inspection and Audit Manual for Approval Authorities, issued July
1986. The PCI checklist was revised to reflect the considerable evolution of the pretreatment program
in the past five years. The revisions ensure that the PCI would continue to be a useful tool in accurately
assessing POTW pretreatment monitoring and enforcement activities. In addition, emphasis on the
interview section of the PCI checklist was reduced and the format of the file review section was revised
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to encourage the inspector to better document problems. Regions and States are generally expected to
begin using this revised PCI checklist in FY 1992. (For further information contact OWEO
Pretreatment Enforcement Initiative
On May 1, 1991, EPA and the U.S. Department of Justice (DOJ) announced that judicial
enforcement actions were filed that day against the City of Los Angeles, four other public entities, and
six companies to address pretreatment violations. Those Actions were part of an ongoing Federal and
State effort that addressed, through formal enforcement actions, pretreatment violations by over 250
other public entities and companies since late 1989. In 1989, EPA and DOJ launched the first phase of
their pretreatment enforcement initiative against public entities which had failed to implement and
enforce pretreatment requirements. EPA also announced that a $3,100,000 settlement with Pfizer, Inc.
(of Easton, PA) had been lodged in court; this constituted the largest federal civil penalty which had
been obtained (up to that date) under the Clean Water Act. (For further information contact OWBC)
NPDES and Pretreatment Inspector Training and Development
The Water Enforcement Division of OWEC presented a variety of inspector training during FY
1991. NPDES/Pretreatment program specific minimum training was presented nine times (Dallas,
Denver, Cleveland, Boise, New York, Atlanta, San Francisco, Philadelphia, and Trenton).
Pretreatment compliance inspection training was present five times (Denver, Buffalo, New Paltz,
Philadelphia, and Boston). Two specialized training workshops were held: (1) to conduct diagnostic
inspections in Florida, and (2) for offshore oil facility compliance evaluation in New Orleans.
Approximately 300 EPA and State inspectors received training. More than thirty on-the-job-training
(OJT) exercises held as part of compliance inspections conducted by OWEC contractors. A new class for
compliance evaluation inspections (CEIs) was developed.
Five inspector training modules which address NPDES Overview, Legal Issues, Laboratory
Analysis, Biomonitoring, and Sampling Procedures were presented in workshops. The sampling module
was completed in December 1990 and the others earlier in FY 1990. Drafts of the Diagnostic Inspection
Manual and Training Guides for Students and Supervisors were prepared during the year. A 16 minute
training video on "Inspecting a Parshall Flume" was also completed. (For further information contact
OWEC)
Safe Drinking Water Act
Underground Injection Control Initiative
On July 18,1991, EPA announced the 5X28 Class V Proposed National Administrative Orders on
Consent with ten major oil companies, (Amoco, Ashland, BP, Exxon, Marathon, Mobil, Shell, Sun Oil,
Texaco, and Unocal). On September 13,1991, the ten National Administrative Orders on Consent were
issued in final. The Orders require extensive inventory information, cessation of injection, waste
minimization, extensive closure, an oversight contractor for ten percent of the closures, and penalties
totaling more than $800,000 for the ten oil companies. This action will lead to the permanent closure of
over 1800 service station bay drain wells nationwide which had been receiving automotive-related
wastes such as oil, anti-freeze, solvents, etc. This enforcement action was the first of its kind under the
Underground Injection Control (UIC) Program in its use of national administrative orders to address oil
company operations in 49 states and territories. (For further information contact OE-Water)
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Resource Conservation and Recovery Act
The Revised RCRA Civil Penalty Policy
EPA issued a new RCRA Civil Penalty Policy (RCPP) in October, 1991. A 1989 Inspector General
Report and a 1990 Agency review of the overall RCRA program, the RCRA Implementation Study
(RIS), had concluded that the prior 1984 penalty policy did not create a sufficient deterrent effect and
failed to adequately reflect the gravity and duration of violations. The new RCPP is designed to ensure
that penalties reflect the gravity and duration of violations and requires that economic benefits of
noncompliance (EBN) be recouped using the BEN computer model. The RCPP also includes mandatory
penalty documentation requirements. Further, for the first time, the RCPP will apply to civil judicial
settlements, in addition to administrative complaints and settlements.
Under the 1990 RCPP, the penalty for a violation is calculated in four steps: (1) determining the
appropriate gravity based penalty (GBP) based on the "probability of harm" posed by a violation and
its "extent of deviation from regulatory requirements"; (2) calculating a multiday component based on
the duration of the violations (if appropriate); (3) adjusting the overall GBP based on case-specific
factors; and (4) calculating and recapturing the EBN obtained by the violator.
A critical change in the new RCPP concerns the assessment of multiday penalties. Under the old
penalty policy, multiday penalties were in assessed in rare, "egregious" cases only. The 1990 RCPP
creates three classifications of violations based on the relative gravity of the violations. These
multiday penalty classifications, which apply to days 2-180 of continuing violations, are "mandatory,"
"presumed," and "discretionary." Multiday penalties for days 180+ of all violations are discretionary.
To facilitate the implementation of the RCPP, the Office of Enforcement (OE) and Office of
Waste Programs Enforcement (OWPE) developed a joint RCPP training course. OE and OWPE presented
the course to all Regional EPA offices, Headquarters, the Department of Justice, and State
representatives.
While the new RCPP has been in effect throughout FY 1991, EPA has continued to litigate and
settle a significant number of older cases under the 1984 policy. Nevertheless, preliminary indications
are that the RCPP is resulting in significantly higher penalties (see Section VI, pp. _ - _). Agency data
show that in FY 1990, prior to the Revised RCPP, the number of proposed administrative actions or
complaints totaled 122 with proposed total penalties of $18.8 million. The highest penalty collected
was $550,000, After implementation of the revised RCRA Civil Penalty Policy, the number of proposed
administrative actions totaled 99 with proposed total penalties of $56.7 million. The highest penalty
collected was $3.3 million. EPA anticipates penalty totals in future years to continue to exceed pre-
RCPP levels. (For further information, contact OE-RCRA or OWPE).
Pollution Prevention
The Office of Solid Waste and Emergency Response (OSWER) has been working to develop a
pollution prevention action plan for RCRA, including an enforcement section which recognizes the need
for several activities, including training for inspectors and guidance on the use of pollution prevention in
enforcement settlements. OSWER developed a policy on the "Role of the RCRA Inspector in Promoting
Waste Minimization," which was released in September, 1991. The policy provides RCRA inspectors
with extensive background on pollution prevention and its relation to RCRA inspections, minimum
training requirement for inspectors before conducting an inspection for pollution prevention and an
outline of the inspectors' role in outreach, (For further information contact OWPE)
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Air Emissions Training
The RCRA Enforcement Division provided training on the first phase of the Air Emission Rule to
RCRA field inspectors/enforcement personnel in all ten Regions. This is the first rule under RCRA that
requires TSDFs to regulate air emissions from certain types of equipment. (For further information
contact OWPE)
Land Disposal Restrictions Handbook/ Land Disposal Restrictions
OWPE revised the LDR Handbook to include the latest LDR rule development. The handbook is
designed to help the regulated community understand and comply with land disposal restrictions. This
handbook was distributed in February, 1991. OWPE up-dated the original LDR Enforcement Strategy to
include all of the latest LDR determinations. The strategy is intended to help the EPA Regions' and
States' RCRA Enforcement Programs establish work load and violation priorities. (For further
information contact OWPE)
Organic Toxicity Characteristic (TO Workshop Rule Enforcement Strategy
and Workshops
OWPE developed and issued a strategy on enforcing the requirements of the new TC Rule.
Workshops on enforcing the TC Rule were held in ten regions and two states. (For further information
contact OWPE)
Enforcement Policy Compendium
OWPE updated and significantly expanded RCRA enforcement policy compendium for use by
Headquarters, Regional and State enforcement staff. The three-volume compendium contains guidance
documents and other pertinent information, along with an extensive listing of other applicable
documents not included in the compendium. (For further information contact OWPE)
RCRA Inspection Information Pamphlets
Two pamphlets were developed which describe three different types of RCRA compliance
inspections; Compliance Evaluation Inspection; Compliance Groundwater Monitoring Evaluation; and
Operations and Maintenance Inspection. The pamphlets are designed to educate owner/operators of
facilities that are subject to such inspections on what is being evaluated, what EPA authority is, and
what follow-up action might be expected. (For further information contact OWPE)
Superfund
Alternative Dispute Resolution Enforcement Program
A highly successful pilot program in Region V in the use of alternative dispute resolution (ADR)
techniques in Superfund actions made major strides toward meeting Agency goals of implementing ADR
into Agency practice. The pilot demonstrated the transaction costs benefits to the Agency of using
mediation professionals to assist in the resolution of complex Superfund actions. The Agency is currently
expanding this pilot to other Regions for use in additional Superfund actions.
In the Fall of 1990, the Deputy Assistant Administrator for Enforcement presented testimony
before Congressional committees in support of passage of the Administrative Dispute Resolution Act
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(subsequently enacted as Public Law 52-101). In furtherance of the Act, the Assistant Administrator for
Enforcement has been appointed by the Administrator as Agency Dispute Resolution Specialist with
responsibility for statutory requirements. The Office of Enforcement has established an Agency-wide
task force to oversee implementation of the Act. (For further information contact OE-Superfund)
Model RD/RA Consent Decree
On July 8,1991, EPA published in the Federal Register an Interim Model CERCLA Consent Decree
for Remedial Design/Remedial Action Settlements. This document provides model language for
drafting RD/RA consent decrees for settlements pursuant to CERCLA sections 106, 107 and 122. The
model language standardizes CERCLA consent decrees and will expedite settlements by reducing the
time and resources consumed by RD/RA settlement discussions. (For further information contact OE-
Superfund)
Residential Homeowner Policy
On July 3,1991, EPA issued a guidance document entitled "Policy Towards Owners of Residential
Property at Superfund Sites", signed by Assistant Administrators of the Office of Solid Waste and
Emergency Response and the Office of Enforcement. The policy provides guidance for Regional staff
regarding the Agency's policy toward residential homeowners whose activities have not led to a
release or threat of release of hazardous substances, resulting in the taking of a response action at the
site. (For further information contact OE-Superfund)
Lender Liability
On June 24,1991, EPA published in the Federal Register a proposed rule interpreting the "secured
creditor" exemption in CERCLA. The proposed rule specifies a range of activities that a security
holder can undertake without incurring Superfund liability. The rule also provides that a security
holder can foreclose on contaminated property without necessarily voiding the exemption, provided
that the foreclosing lender also seeks to sell the property within a reasonable period of time so as to
recoup the loan loss. In addition, the proposed rule provides protection for federal entities such as the
Resolution Trust Corporation that acquire property involuntarily. The Agency received approximately
350 public comments on the proposed rule and is in the process of finalizing the rule. (For further
information contact OE-Superfund)
Toxic Substances Control Act
TSCA Section 8(e) Compliance Audit Program (CAP)
During FY 1991, EPA launched the TSCA Section 8(e) Compliance Audit Program (CAP), a first-
of-its-kind voluntary audit program designed to achieve the Agency's goal of obtaining any outstanding
Section 8(e) substantial risk information, and provide maximum encouragement for companies to
voluntarily audit their files. Section 8(e) applies to any person who manufactures, imports, processes,
or distributes a TSCA-covered chemical substance or mixture and who obtains new information that
reasonably supports a conclusion that the substance or mixture presents a substantial risk of injury to
health or the environment. Under the CAP, companies agreed to register for the program, conduct a
corporate-wide audit for TSCA 8(e) reportable information, and pay stipulated penalties for each
study reported up to an overall $1,000,000 ceiling. The CAP sets forth guidelines that identify - in
advance - EPA's enforcement response, and allow companies to assess liability prior to electing to
participate. Approximately 125 companies (excluding subsidiaries) registered for the CAP which is
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not scheduled to conclude until late 1992 or early 1993. The CAP program follows closely the approach
taken by EPA in the settlement of the TSCA Section 8(e) case involving Monsanto Corporation, in which
Monsanto paid a record penalty of $859,000 for such violations, (For further information contact OE-
Toxics Litigation Division (TLD))
OSHA-EPA Enforcement Memorandum of Understanding
A joint OSHA-EPA Enforcement Workplan for FY 1991 was signed by the EPA Assistant
Administrator for Enforcement and the Administrator of OSHA. The workplan, and supplemental
agreement covering cross-agency training and data exchange, implement the November 1990
Enforcement Memorandum of Understanding signed by Administrator Reilly and former Secretary of
Labor Elizabeth Dole. The work implements ongoing efforts to inspect petrochemical facilities as part
of the OSHA "PetroSEP" initiative, lead reduction initiative, and cross-agency tip and complaint
reports. In addition, EPA is exploring the possibility of having OSHA monitor compliance with TSCA
Section 5(e) consent orders which require manufacturers of new chemicals to implement a number of
protective measures for their employees, such as dermal and respiratory equipment, and a hazard
communication program. Ideally, when OSHA conducts an industrial hygiene inspection at a facility
which produces, processes or uses a chemical covered by a 5(e) order, it would monitor for compliance
with the 5(e) order as well as for compliance with the OSHA health standards. (For further
information contact OE-TLD)
Inter-Agency Agreements
Two examples of Inter-Agency agreements, initiated in FY 1991, involve the Department of
Defense (DOD) and the Mine Safety and Health Administration (MSHA). In December, 1990, EPA and
DOD entered into an agreement that allows the import of 300,000 pounds of PCBs and PCB items into
the U.S. for disposal. The agreement requires DOD to comply with the PCB Notification and
Manifesting for PCB Waste Activities Final Rule and provides for a specific schedule to be followed
during shipment, transport and disposal phases of the project. The Office of Compliance Monitoring
(OCM) also entered into an agreement with MSHA for cooperation on inspections and targeting for PCBs
in underground mines. This agreement will be implemented in FY 1992. (For further information contact
OCM)
Compliance Monitoring Strategies
During FY 1991, EPA updated and finalized compliance monitoring strategies addressing the
asbestos ban and phase out rule, and polychlorinated-biphenyls (PCBs) rule. (For further information
contact OCM)
Federal Insecticide, Fungicide, and Rodenticide Act
Pesticide Export Enforcement Initiative
EPA issued complaints charging nine companies with unlawful export of pesticides in violation of
FIFRA §17 and §12. 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".
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These cases are highly significant as they represent the first cases brought since PIFRA was
amended in 1978 to bring exported pesticides within the purview of the Act, They, therefore, involved
highly complex legal, policy and technical issues of first impression. Furthermore, they were of great
interest to the public and Congress as they were brought during the Congressional session which focused
on the "circle of poison" issue, ie,, illegal pesticides returning to the US on imported food stuffs. Third,
the labeling violations had the potential to result »n serious illness, death or environmental
contamination. Finally, settlement oi these cases resulted in adoption of a tough enforcement stance of
"zero tolerance" or "no mitigation" for certain violations,
The companies charged in these complaints and the amounts of the proposed penalties are as
follows: Dow Chemical Company, $22,400; SWeld-Brite Corporation, $222,000; Mobay Corporation,
$314,800; Exxon Chemical Americas, $36,400; Rohm and Haas Bayport, Inc. $36,000; Sandoz Crop
Protection, $1,629,200; Monsanto Chemical Corporation $562,800; NL Industries, Inc. $19,600; Chevron
Chemical Comparvy $29,200, Penalties obtained so far * $470,360. (For further, inforaaatiori contact OB'
TLD)
Section 6(aK2) Reporting Requirements
In January 1991 EPA mailed a letter to over 225 persons and firms holding registrations for
pesticides used on domestic animals. The letter explained the requirements of F1FEA §6
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Senior Pesticide Officials Training Program
In FY 1991, OCM and the Office of Pesticides Programs implemented the second year of a national
training program to assist senior State officials managing State-delegated pesticide enforcement
programs. Two hundred and fifty pesticide program leaders from 49 States, six tribal groups and two
U.S. territories participated in the 1-2 week residential training session at the University of
California at Davis. The goal of this program is to enhance State and Regional capabilities to develop
and implement pesticide regulatory programs for the 1990's and to undertake new environmental
initiatives which feature reduction, pollution prevention and innovative approaches to pesticide
management and enforcement. (For further information contact OCM)
FIFRA §19 Procedural Rule
In FY 1991, EPA drafted the FIFRA §19 Proposed Procedural Rule, which covers procedures for: a)
EPA acceptance of canceled pesticides for disposal; b) the requirements for a voluntary or mandatory
recall of suspended or canceled pesticides; c) requirements for submittal of storage and disposal plans,
and the Agency's procedures for review of plans; and d) indemnification procedures for suspended and
canceled pesticides. (For further information contact OCM)
FIFRA §6(g) Policy Statement
On March 28, 1991, EPA issued the FIFRA §6(g) Proposed Policy Statement which outlines the
responsibilities of persons who must submit information under FIFRA §6(g) and accompanying
procedures for information submittal. Section 6(g) of FIFRA requires persons to notify the Agency and
appropriate State and local officials of the quantity and location of any suspended or canceled
pesticides in their possession. (For further information contact OCM)
Policy Statement for Pesticide Exports
In FY 1991, OCM drafted the Final Policy Statement for Pesticide Exports. The policy clarifies
the requirements for labeling exported pesticides and the requirements affecting the export of research
and development pesticides. It also broadens the scope of actions which will trigger international
notifications and presents a new system for transmittal of international notices. The policy is expected
to be published In the Federal Register in January, 1992. (For further information contact OCM)
Case Development Training Program
In FY 1991, OCM conducted a highly successful Case Development Training Program for Regional
and State case development officers in NJ, MO, CA, VA, TX, MA and WA. The course covered a range of
topics including evidence gathering and evaluation, and the civil administrative process. About 300
State and federal case officers, attorneys, and inspectors attended. Each attendee received a manual
which outlines TSCA, FIFRA, and the Emergency Planning and Community Right-to-Know Act
(EPCRA), as well as a TSCA case study used in a mock settlement conference. (For further information
contact OCM)
Emergency Planning and Community Right to Know Act (EPCRA) S 313
EPCRA §313 Targeting System (ETS)
By the end of FY 1991, OCM had installed the pilot EPCRA §313 Targeting System (ETS) in nine
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Regions. The system provides the Regional EPCRA §313 inspectors with a flexible, PC-based tool for
creating automated inspection targeting lists based upon region-specific priorities, (For further
information contact OCM.)
EPCRA §313 Late Reporter Initiative
On June 10, 1991, EPA issued approximately 2,429 Notices of Noncompliance to facilities which
had submitted over 5,000 late reports under EPCRA §313 after the July 1 deadline in 1989 or 1990 or both
years. This effort required a quality assurance review of the EPCRA files of over 400 suspected late
facilities; a crosscheck, by hand, of the list of late facilities with the list of over 1500 facilities
inspected by the Regions; and the creation of a d-Base file downloaded from the TRIS database, of
facilities submitting late reports. EPA is now able to track the timeliness of those facilities which
received an NON for late reporting; enabling EPA to assess penalties for repeated late reporting. (For
further information contact OCM.)
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VL Media Specific Enforcement Performance and
Regional Accomplishments
Clean Air Act - Stationary Sources
At the beginning of FY 1991, EPA's Stationary Source Compliance Program, in conjunction with
State agencies, identified 401 Significant Violators (SV). Throughout the year an additional 660 SVs
were identified. By the end of the fiscal year, 608 SVs were brought into compliance, subject to an
enforceable compliance schedule, or were subject to formal enforcement action. In addition to
traditional SIP, NSPS, and NESHAP inspection activity, the air compliance program conducted 1,250
inspections of wood heater manufacturing and retailing operations.
To improve efforts to return air emissions facilities to compliance, the EPA's Stationary Source
Compliance Division piloted Compliance Planning and Oversight initiatives in Virginia and Maine.
This program, developed with close State and EPA Regional involvement, establishes an
accountability process in which the States negotiate compliance program goals and strategies.
EPA supplemented the successful asbestos NESHAP outreach program by developing and
distributing brochures to asbestos removal contractors.
Under Title VII of the Clean Air Act, EPA initiated a number of regulatory activities to
implement the title's enforcement provisions. These initiatives include work on Field Citations,
Citizen Suits, and contractor listing.
Clean Air Act - Mobile Sources Field Operations and Support Division
EPA's Field Operations and Support Division in the Office of Mobile Sources enforces the fuels,
anti-tampering, emissions warranty, and related provisions of Title II of the Clean Air Act and assists
in developing enforcement policy. This enforcement program covers all phases of enforcement including:
field investigating (augmented by State and local efforts and by contractor inspections), the issuance of
Notices of Violation (NOVs), negotiation of settlements, referral of cases to the U.S. Department of
Justice, and litigation if necessary.
Major enforcement achievements during FY 1991 include the acceptance by all participating
parties of an Agreement in Principal relating to the reformulated gasoline and oxygenated fuels
provisions of the Clean Air Act Amendments of 1990. The volatility enforcement program resulted in
continuing high levels of compliance. Settlement of lead phasedown cases brought substantial
penalties for violations. As a result of the Clean Air Act Amendments of 1990, tampering enforcement
was initiated in the area of high performance modifications to vehicles.
EPA issued a total of 269 NOVs, of which 157 were for violations of the aftermarket catalytic
converter policy, 56 were for fuel volatility violations, 54 were for tampering and fuel violations and
two were for lead phasedown violations.
EPA settled 211 cases in FY 1991 with cash civil penalties totaling $2,246,008, and additional
payments totaling $454,381 went to alternative payment projects. The largest civil penalties were
generated from the settlement of five outstanding lead phasedown cases with $1,218,249 in total civil
penalties.
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Clean Air Act - Mobile Sources Manufacturers Operations Division
The Manufacturers Operations Division in the Office of Mobile Sources enforces the provisions of
Title II of the Clean Air Act related to the manufacture of new motor vehicles, including the testing of
production line motor vehicles and engines and in-use vehicles to determine conformity with Federal
emission requirements. EPA conducts its own investigations, surveillance, and testing of new and in-use
vehicles, and concentrates its enforcement efforts on testing of 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, .
EPA's recall testing program is a key component of efforts to enforce Federal emission
requirements. Since the beginning of recall activity, a total of 31 million vehicles have been recalled as
a direct result of EPA investigations. In FY 1991, the motor vehicle emission recall program continued to
play an important role in EPA's enforcement efforts, investigations resulting in 6 influenced recalls
involving 2 manufacturers and a total of 1.2 million recalled vehicles. In addition, 830,000 vehicles
were recalled voluntarily by manufacturers without specific EPA action.
In addition, EPA continued motor vehicle enforcement testing in a high altitude area '(Denver,
Colorado). This high-altitude program conducted in coordination with the Colorado Department of
Health, was initiated to ensure vehicles in high altitude areas comply with Federal emission
standards. Colorado tested 8 engine families representing 1.0 million vehicles, and 4 influenced recalls
are expected as a result of this testing program.
The Selective Enforcement Auditing (SEA) program consists of production-line emission.testing of..
new light-duty vehicles and heavy-duty engines. Less than 80 individual tests ordered during FY 1991
induced over 24,000 additional voluntary emission tests conducted by manufacturers. The heavy-duty
SEA audits focused on engines that manufacturers choose to participate in the averaging, banking and
trading programs. The audits targeted engines which had family emission limits either below the
Federal standards or close to the engines certification level. Thirteen (13) heavy-duty engine audits
were conducted and a result of these audits, EPA revoked two manufacturer's certificates of conformity
for two engine families which failed the audits because the engine configurations would not meet
applicable emission limits. The certificates were re-issued when the manufactures made modifications
to the engines and testing demonstrated compliance with Federal standards. The manufacturers also
agreed to recall previously produced engines.
EPA's Imports Program, implemented on July 1, 1988, permits only independent commercial
importers (ICIs) that possess an appropriate certificate of conformity from EPA to import nonconforming
vehicles. Accordingly, the ICI is solely responsible for meeting all EPA emission requirements for all
nonconforming vehicles it imports. To determine compliance with the Imports program in FY 1991, MOD
conducted in-office document audits of all operating ICIs conducted four on-site ICI inspections and one
port of call inspection. Pursuant to these audits, numerous imports regulation violations were identified.,
In addition to pursuing enforcement action on these violations, investigations of four other ICIs for
various imports regulations violations are continuing. , ^ , ,
* ' "' f
Clean Water Act Enforcement - NPDES
Record Penalties under NPDES . ' .
1
EPA water enforcement in FY 1991 obtained record-breaking penalty dollars, removing to the
greatest extent feasible the economic benefit of non-compliance. An overview of recent water
enforcement activities shows the following accomplishments:
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Nearly 25 percent ($26.6 million) of total civil penalties assessed under the Clean Water Act
since 1975 ($106 million) were assessed in FY 1991;
Five of the ten largest civil penalties ever assessed under the Clean Water Act were assessed in
FY 1991;
The top two civil penalties were obtained in FY 1991 ($6.1 million against Wheeling-
Pittsburgh Steel Corp. for effluent violations and $3.1 million against Pfizer, Inc. for
pretreatment violations); and
Over half (21 of 39 cases) of civil CWA penalties in excess of $500,000 were assessed in the last
three years.
Timely and Appropriate Enforcement and the NPDES Exceptions Report
The NPDES enforcement program has defined Significant Noncompliance (SNC) to include
violations of effluent limits, reporting requirements, and/or violations of formal enforcement actions.
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 basis. During FY 1991, 91% of all
NPDES SNCs were resolved in a "timely and appropriate" manner.
Those facilities that have been in SNC for two or more quarters without returning to
compliance or being addressed by a formal enforcement action are identified on an "exceptions list".
During,FY. 1991, 354 facilities were reported on the SNC exceptions list including 152 facilities that
were unaddressed from the previous year and 202 facilities that appeared on the list for the first time
during the year. Of the 354 facilities on the exceptions list, 204 returned to compliance by the end of the
year, 109 were subject to formal enforcement action, and 41 facilities remained to be addressed during
the upcoming year.
National Municipal Policy
Through implementation of the National Municipal Policy {NMP), over 95% of all major
Publicly-Owned Treatment Works (POTW) are in compliance A total of 101 major POTWs completed
construction to meet final effluent limits during FY 1991, and all but four facilities in the NMP universe
have been addressed through a judicial or administrative schedule, are in the referral process to
establish a schedule, or have already complied. Estimates of environmental benefits directly related
to NMP requirements include removal of an additional 2.8 million Ibs/day of conventional pollutants
and removal of over 18,000 Ibs/day (approximately 9 tons) of toxic pollutants.
Clean Water Act Enforcement - §404 (Wetlands)
EPA and the Army Corps of Engineers jointly enforce the requirements of §404 of the Clean Water
Act, which prohibits the unpermitted discharge of dredged or fill material into wetlands and other
waters of the United States. Under a Memorandum of Agreement between the two agencies, the Corps -
as the Federal permitting agency - has the lead on Corps-issued permit violations and EPA has the
lead on many unpermitted discharge cases.
A primary goal of EPA's wetlands enforcement program is environmental protection. EPA seeks
timely removal of the unauthorized discharge and restoration of the site, where appropriate. Another
important goal of §404 enforcement is deterrence, both with regard to the particular violator and to the
regulated community as a whole. Consequently, EPA may seek monetary penalties either alone or in
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addition to injunctive relief. The program also strives for fair and equitable treatment of the regulated
community. EPA is committed to enforcing the requirements of §404 to ensure' that violators are not
allowed to profit from their illegal actions, During FY 1991, EPA continued to use the various
enforcement mechanisms provided under the Clean Water Act in response to violations of §404.
Nationwide, the EPA Regions issued 98 administrative compliance orders, 21 administrative penalty
complaints, and referred 11 civil and criminal judicial cases to the Department of Justice. In addition,
the Agency continued to build on recent efforts to strengthen coordination with the Department of the
Army and the Department of Justice on §404 enforcement matters. ;
Safe Drinking Water Act Enforcement
Public Water System Supervision Program(PWSS)
In FY 1991, the PWSS Program strengthened and improved enforcement at the State and Federal
levels. EPA Regional offices more than doubled their enforcement efforts from the previous year, with
significant increases in the numbers of notices of violation (NOVs), proposed administrative orders
(PAOs), and final administrative orders (FAOs) issued against violating systems. EPA issued a total of
2,448 NOVs, 443 PAOs, and 303 FAOs (as compared with 453 NOVs, 312 PAOs, and 149 FAOs in FY
1990).
Many of these enforcement actions were a. result of Regional initiatives. Several Regions issued
PAOs and FAOs against water system users in an attempt to address water systems in violation where
no owner was identified. Regions also issued NOVs against the majority of coliform monitoring and,
reporting violators in selected states. Nationally, the Regions focused on violations incurred by water
systems that serve over 10,000 people. Both Regions and States have issued NOVS and administrative
orders (AOs) against many of these water systems. . ., ..--t . -
State and EPA timely and appropriate enforcement performance continued to improve along with
improvements in the rate of resolving exceptions. More SNCs were identified in FY 1991 as a result of a
more stringent SNC definition that became effective during the year.
Resource Conservation and Recovery Act Enforcement (RCRA) ,
The primary recommendations of the 1990 RCRA Implementation Study (RIS) for the RCRA
Enforcement Program included strategically targeting enforcement actions, publicizing enforcement
actions, maximizing the deterrent effect of RCRA enforcement, improving the mix of civil judicial and
administrative cases, seeking higher penalties, and incorporating pollution prevention into
enforcement settlements. During FY 1991, the RCRA Enforcement Program implemented those
recommendations.
The RCRA Enforcement Program played a significant role in three strategically targeted
initiatives in FY 1991: 1) In February, 1991, EPA announced eight judicial and twenty administrative
actions targeted at violators of the Land Ban Disposal Restrictions regulations. Assessed penalties
from the administrative cases totaled $3.5 million. The settlement of a civil judicial action against
DuPont netted a $1.85 million penalty. 2)The twenty RCRA cases (12 judicial and 8 administrative
cases) filed in July, 1991 were a significant part of a multi-media initiative (total 36 cases) to enforce
against a specific pollutant-lead; and 3) A multi-media initiative against exporters (generators and
transporters) of hazardous waste was announced in late September, 1991. The RCRA Enforcement
Program contributed sixteen of twenty-three cases to the initiative. Each of these well-publicized
initiatives sought to convey the message that company non-compliance of RCRA regulations will be
likely to result in enforcement actions and will involve significant monetary penalties. In addition, the'
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FY 1991 Enforcement Accomplishments Report
initiatives targeting exporters and violators of the Land Disposal Restrictions follow from priorities
identified in OE's Enforcement Strategic Plan.
Consistent with the RIS, the RCRA program has worked to improve the ratio of civil judicial
enforcement actions to administrative actions. In FY 1991, the Agency witnessed a dramatic surge in
judicial referrals as part of this effort. EPA referred 34 civil judicial actions to the Department of
Justice for filing in Federal District Court. This represents a significant increase over FY 1989 and FY
1990, in which the Agency referred 16 and 18 cases respectively.
The revised RCRA Civil Penalty Policy (RCPP) was implemented in FY 1991. This revised
policy provided the Regions with the ability to assess multi-day penalties as well as assess higher
dollar penalties. Agency data show that in FY 1990, prior to the RCPP, the number of proposed
administrative actions or complaints totaled 122 with proposed total penalties of $18.8 million. The
highest penalty collected was $550,000. After implementation of the revised RCRA Civil Penalty
Policy, the number of proposed administrative actions totaled 99 with proposed total penalties of $56.7
million. The highest penalty collected was $3.3 million.
The Regions incorporated more pollution prevention activities into enforcement settlements. One
such action in FY 1991 involved the Du Pont facility at Deepwater, NJ. As part of the enforcement
settlement, Du Pont must study 15 processes for waste minimization opportunities and provide EPA data
on their findings. This data will assist EPA in future efforts to promote pollution prevention. The
RCRA Enforcement Program also developed a policy on the role of the inspector in promoting waste
minimization. The policy included extensive background information on pollution prevention, minimum
training requirements of inspectors before they could perform a pollution prevention inspection and the
role of the inspector in this outreach program.
Superfund Enforcement
FY 1991 was a banner year for the Superfund Enforcement Program. The estimated value of the
263 settlements reached with Potential Responsible Parties (PRPs) in FY 1991 exceeded $1.4 billion for
all activities (compared with 283 settlements worth $1.3 billion in FY 1990). Of this amount,
approximately $1.1 billion was for §106 or §106/107 remedial (RD/RA) settlements (versus $1.0 billion
in FY 1990). In FY 1991 the Agency "referred 71 §106 or §106/107 consent decrees for RD/RA to the
Department of Justice (DOJ), for remedial work estimated at $834 million (60 consent decrees worth
$730.6 million were referred in FY 90). In FY 1991 the Agency issued a total of 137 unilateral
administrative orders (UAOs), versus 134 in FY 90, and 132 administrative orders on consent were signed
with PRPs. Of the total of 137 UAOs issued, 48 UAOs were issued under §106(a) for RD/RA work (44
were issued for RD/RA in FY 90). At the end of FY 1991 PRPs were in compliance with 29 of the UAOs
issued for RD/RA; these were valued at $286 million. Under §107 only, the Agency referred 73 cases to
DOJ seeking cost recovery for past costs worth $164.8 million (as opposed to 79 referrals seeking $184.5
million in FY 1990). Since the inception of the Superfund Program in 1980, PRPs have committed
to response actions worth over $5 billion. The percentage of PRP leads at NPL sites (under enforcement
consent decrees or administrative orders) for remedial design (RD) and remedial action (RA) responses
has increased to 70% for RD and 63% for RA respectively (Federal Facilities excluded). When SARA
was passed in FY 1987 the percentage of PRP leads at NPL sites was 27% for remedial designs, and 37%
for remedial actions.
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F7 799.7 Enforcement Accomplishments Report
180 -p
160 - -
140 -
120 -
100 -
80 - ,
60 4-
40
20
0
Superfund Program Accomplishments
(All Actions)
Total RI/FS
Tolal ROD
Total RD
TotalRA
I
FY88 FY89 FY90 FY9I FYB8 FY89 FY90 FY91 FY88 FY89 FY90 FY 91 FY88 FY89 FY90 FY 91
EPA Selected Remedy D Fund-Lead Response Q PRP-Lead Response
Toxic Substances Control Act Enforcement (TSCA)
During FY 1991, OPTS launched the TSCA §8{e) Compliance Audit Program (CAP), a first-of-its-'
kind voluntary audit program designed to achieve the Agency's goal of obtaining any outstanding §8(e)
substantial risk information, and provide maximum encouragement for companies to voluntarily audit
their files. Section 8(e) applies to any person who manufactures, imports, processes, or distributes a
TSCA-covered chemical substance or mixture and who obtains new information that reasonably
supports a conclusion that the substance or mixture presents a substantial risk of injury to health or the
environment. Under the CAP, companies agreed to register for the program, conduct a corporate-wide
audit for TSCA §8(e) reportable information, and pay stipulated penalties for each study reported up
to an overall $1,000,000 ceiling. The CAP sets forth guidelines that identify, in advance, EPA's
enforcement response and allows companies to assess liability prior, to electing to participate.
Approximately 125 companies (excluding subsidiaries) registered for the CAP which is not scheduled to
conclude until late 1992 or early 1993. These companies represent a wide variety of industries including
those engaged in chemical production and importation, petroleum refining, paper production, the
aerospace industry, and microelectronics.
During FY 1991, the EPA's toxics enforcement program included approximately 168 settlements
with Environmentally Beneficial Expenditures (EBEs) (16 rcr FIFRA, 87 under TSCA, and 65 under
EPCRA) or Supplemental Environmental Projects (SEP).. These settlements include provisions such as
altering manufacturing processes to reduce waste, use of safer products, removal of PCB-containing
transformers, and requirements to conduct compliance audits.
Federal Insecticide, Fungicide, and Rodenticide Act Enforcement (FIFRA)
EPA's FIFRA program placed high priority on import/export issues in FY 1991, including
participating in the Agency's import/export initiative and case filing.
Good Laboratory Practices (GLPs), which are management standards for operating laboratories
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active in environmental matters, are a major factor in efforts to assure high quality data in support of
pesticide registrations. A significant amount of FIFRA test data comes from abroad, and OPTS1
international program, involving bilateral Memorandums of Understanding (MOUs) and multilateral
activities in the Organization for Economic Cooperation Development (OECD), is an important means
of ensuring the quality of the data,
In 1991, OCM implemented three MOUs with inspectional visits addressing GLPs to Germany,
Switzerland, and the Netherlands. OCM initiated new MOU activities with Japan (related to toxic
chemical inspections) and established contact with the European Commission and Israel. In May 1991,
OCM also successfully managed the OECD Vail Consensus Workshop on the application of GLPs to
field studies. The document produced by this Consensus Workshop will have a major impact on how the
U.S. and our major trading partners conduct studies in the field.
B. Regional Office Accomplishments
Region I - Boston
(Connecticut,, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont)
During FY 1991, Region I accelerated its efforts to build a multi-media perspective into all
phases of its enforcement programs. In pursuit of this goal, the Region made adjustments to many
aspects of the enforcement process, including inspections, case development, negotiations, data
compilation, and policy-setting.
For example, in FY 1991 the Region completed design of a facility multi-media survey form to be
used by EPA inspectors conducting single-program inspections. This checklist form provides inspectors
with key questions to ask under any of EPA's regulatory programs if they see evidence of possible
violations of a program other than the one for which the inspection is being conducted. During FY 1991,
75 of Region Fs senior inspectors received training on use of the multi-media survey form, and the
Region designed procedures for ensuring that the inspectors' observations are addressed by the
appropriate program.
In its Federal facilities enforcement program, the Region conducted multi-media inspections at
four federal facilities posing significant environmental problems. The follow-up actions to these
inspections are being coordinated among the EPA programs in which violations were uncovered and also
with the affected States. Because of the success of this effort. Region I is planning to increase the
number of multi-media inspections at Federal facilities in FY 1992.
Region I also made further refinements to its case screening process under which a multi-media
compliance/enforcement status check is conducted for any facility slated for enforcement, and a Toxic
Release Inventory (TRI) Report for the facility is reviewed. As a result of this screening process, the
Region coordinated the issuance of several administrative penalty actions to facilities found to be
simultaneously violating more than one regulatory program. The programs most commonly involved in
these multi-media administrative actions were those under the Resource Conservation and Recovery
Act, the Toxic Substances Control Act, and the Emergency Planning and Community Right-to-Know Act.
The Region also has ongoing three significant multi-media judicial actions involving violations of
RCRA and the Clean Water Act.
In negotiating settlements to enforcement actions, Region I continued efforts begun in FY 90 to
encourage innovative forms of relief. The Region has achieved many settlements incorporating
supplemental environmental projects which go beyond merely correcting the violations cited by the
action. Often the ideas for such projects arose from review of the TRI report for the violating facility
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FY 199J Enforcement Accomplishments Report.
and led to adoption of projects to reduce or eliminate releases of toxic air pollutants not currently
regulated under Federal law. In two major judicial enforcement actions. Region I ended the year having
made substantial progress toward negotiating settlements that will include comprehensive
environmental auditing programs.
Region I also recognized the need for better integration of data from each enforcement program.
The Region thus designed a multi-media enforcement tracking system (MMETS) which complements a
national effort to integrate enforcement data. MMETS is a tickler system that contains information
about current enforcement actions and planned inspections and enforcement at facilities throughout New
England. In FY 92 use of MMETS will become a standard component of case screening in the Region,
To facilitate the multi-media approach to enforcement, Region I has frequently relied on an
Enforcement Workgroup composed principally of managers of the Region's enforcement programs. With
representatives from all the programs, the Workgroup has been effective in developing regional
policies for implementation of new directions in enforcement, such as fine-tuning the multi-media case
screening process. Taken together, all the changes described send a clear signal that Region I has
broadly embraced the Agency's push towards a multi-media perspective in its enforcement programs.
Region II - New York
(New Jersey, New York, Puerto Rico, Virgin Islands) ,
Region II's record for FY 1991 displays a continued strong commitment to an aggressive enforcement
program. It was also a year in which the Region devoted considerable effort to a number of enforcement
initiatives, including notably the multi-media enforcement program. The Region is proud of the results
they have achieved: the Region carried out six major, consolidated multi-media inspections, and
commenced five multi-media enforcement cases. The Region has in place an ambitious multi-media
inspection program for FY 1992 to build on their current efforts. Perhaps of greater importance, the
Region has created effective institutional structures in the Region for enhanced multi-media
coordination, communication, and tracking.
Region II had a very strong year in the civil enforcement program. The Region sent nearly 60 civil
referrals, consent decree enforcement referrals and PRN packages to Headquarters or the Department of
Justice during FY 1991; the Region's second highest total ever. Region II settled or otherwise resolved
fifteen non-Superfund civil cases, yielding penalties of over $3.8 million - their highest ever, and over
two and a half times the FY 1990 total. One single case - the Dupont RCRA settlement ~ accounted for
$1.85 million in penalties, and included landmark pollution prevention provisions.
The Region's Superfund enforcement program accounted, for 26 civil referrals and pre-referral
negotiation packages, a Regional record. The total dollar value of all settlements and orders complied
with, including Federal facility Inter-Agency Agreements, was over $280 million. This brings the
dollar value of their Regional Superfund enforcement program to $970 million during the past three
fiscal years alone, and substantially over $1 billion since its inception -- a significant and impressive
milestone. Region II developed, four new civil referrals in support of the national Superfund Non-
Settlor /Non-complier (NS/NC) Enforcement initiative. r j . .
Region II's administrative enforcement activity levels reached an all time high in FY 91, with
over 585 new actions commenced proposing penalty assessments of over $50 million. Indeed, proposed
penalties in five separate programs exceeded $1 million. Region II completed about 175 adjudicatory
cases; the administrative case resolutions resulted in penalty assessments of about $4.34 million, nearly
twice the.FY 90 assessments. . , ,
The Region continues to closely monitor compliance with civil and administrative consent decrees
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FY1991 Enforcement Accomplishments Report
and orders, fully utilizing the Agency's Consent Decree Tracking System, Five consent decree
enforcement cases in FY 1991, and some six Motions to Enforce were filed in court.
The pace and intensity of the criminal enforcement program has increased in FY 91, with six new
case referrals; plea agreements in several cases (including one very significant case -- Exxon/New
Jersey), and a substantial number of new investigations initiated.
Region HI - Philadelphia
(Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia)
During FY 1991, Region III organized a cross-media enforcement workgroup to explore multi-
media enforcement opportunities for situations involving noncompliance and risk to human health and
the environment. At the close of the fiscal year, the work group had completed site characterization
reports on six facilities and had brought enforcement actions against four. In addition to facility-
specific actions, the work group established a model process to conduct multi-media site screening,
including risk assessments, at facilities; developed and piloted the use of cross-media enforcement
authorities to address significant environmental concerns; and accelerated the use of multi-media
inspections in the Region. Participation in the work group was praised by both technical and legal
members as a positive experience that provided cross program education.
Region III established a comprehensive case screening program which achieved its goals of
identifying potential multi-media enforcement cases, improving civil/criminal coordination and
enhancing docket management and the use of innovative enforcement techniques. The entire Region III
significant noncompliance case inventory, over 325 cases, was screened during FY 1991 in a series of
program-specific screening meetings. From these meetings, over 70 cases were evaluated for potential
multi-media enforcement action during multi-program screening meetings attended by senior program
enforcement managers. The case screening process played an important role in a number of successful
multi-media enforcement actions issued during FY 1991 and at the close of the fiscal year the Region
retained an active potential multi-media case inventory of over 25 cases.
Region III was an active participant in the national Resource Conservation and Recovery Act
Land Ban Initiative which sought to focus attention and enforcement action on violators of the RCRA
land disposal restriction rule. The Region completed five administrative complaints and referred one
case for judicial action. AH of these actions were completed and announced as part of the national Land
Ban Initiative on February 22,1991.
In a comprehensive multi-media enforcement initiative designed to address significant lead
compliance problems, Region III completed four judicial and nine administrative actions as part of the
national Lead Initiative announced on July 31, 1991. The penalties being sought in the administrative
actions totaled over $10 million. Enforcement actions were issued as a result of violations in the
Comprehensive Environmental Response, Compensation, and Liability Act,
As part of its continuing focus on multi-media compliance within the Chesapeake Bay drainage
area. Region III completed many significant actions during FY 1991 to initiate compliance actions by
industries, municipalities, and Federal facilities. Enforcement actions continued under the Clean Water
Act, Resource Conservation and Recovery Act, Toxic Substances Control Act, and the Clean Air Act,
with notable successes attained in completing Federal Facilities Compliance Agreements for Federal
facilities. Other activities included increased attention to Federal Insecticide, Fungicide, and
Rodenticide Act inspections and encouragement of alternative pest control measures and Integrated Pest
Management in the Bay area.
Approximately a dozen multi-media inspections were conducted or coordinated this year by
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FY1991 Enforcement Accomplishments Report
Regional Environmental Services Division staff. They were targeted mostly through the Regional cross
media enforcement project or by the enforcement screening process. These inspections have provided
valuable experience for Regional staff and provided excellent opportunities to enhance skills.
Significant progress has been made on developing a multi-media screening protocol and it is anticipated
that a pilot effort will be implemented in the second quarter of FY 1992.
The Region participated in the development of the nation-wide EPA/Occupational Safety and
Health Administration Memorandum of Understanding (MOU) which calls for information exchanges,
cross agency referrals, training, and joint inspections. The joint inspections are viewed as the first
tangible product, and Region III was the first EPA Region to achieve this goal by conducting a joint
EPA/OSHA multi-media inspection at WITCO Corporation, Bradford, PA. This facility was part of
OSHA's Petroleum Special Emphasis initiative and also was consistent with EPA priorities. In
addition, EPA staff have referred several potential violations to OSHA and, as a result of those
referrals, OSHA investigations were initiated.
An enforcement action, initiated by Region HI staff,'was escalated to the Office of Drinking
Water and Office of Enforcement and evolved into the first national administrative orders on consent
issued by the Agency. These orders, completed following extensive negotiations with both primacy
States and companies, have proven to be an effective mechanism to address violations for corporations
which operate on a national basis.
The orders address the discharge of automotive wastes into injection wells (septic tanks and
drywells, commonly known as Class 5x28 wells) by ten major oil companies. The generic orders for all
companies had many "firsts" including distribution of outreach materials, mandatory implementation
of pollution prevention and waste minimization procedures for service stations, generic closure plans,
and oversight contractor services supplied by the company to certify compliance with closure.
Region IV - Atlanta
(Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, Tennessee)
Region IV supported the Agency's national multi-media enforcement focus by initiating new
activities and implementing institutional changes to accomplish multi-media objectives and goals.
Region IV has identified five regional geographic initiatives that support the Agency's goal of
increased multi-media activities. Currently, Region IV is working with the Commonwealth of
Kentucky, West Virginia, and Ohio and Regions III and V on what is know as the Tri-State Initiative.
The principal goal is to achieve environmental improvements through the use of regulatory and non-
regulatory tools. Examples of these tools include sampling, monitoring, multi-media inspections,
pollution prevention, and voluntary reduction. Other Regional geographic initiatives underway or in
the planning stage are; Calvert City, KY, Chattanooga Creek Basin, (GA and TN), Tampa Bay, FL, and
South Florida.
Region IV completed several other activities that provide the institutional capability to
respond to multi-media requirements. These activities include: »
development of multi-media inspection and enforcement protocols;
pollution Prevention training of key enforcement staff, to determine what
is pollution prevention and when and how to incorporate it into enforcement
settlements;
development of a multi-media enforcement training course in cooperation with NEIC;
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FY1991 Enforcement Accomplishments Report
improvement of enforcement communications that include quarterly issuances of the
regional multi-media news to highlight current and ongoing regional activities; and,
establishment of a Total Quality Management Quality Action Team (QAT) chaired
with improving multi-media enforcement actions.
Region IV programs continue to make significant contributions to creating EPA's outstanding national
record, including participation in several national initiatives. Notable achievements in this area
include a civil case filing against American Brass, Inc., as part of the National Lead Initiative, and a
filing against Grumman as part of the National Land Ban Initiative.
Region V - Chicago
(Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin)
Region V's record of enforcement accomplishments during FY 1991 again demonstrated national
leadership in environmental enforcement. The region led the national in numbers of judicial referrals,
settlements, and assessed penalties by a wide margin. Region V also accelerated its efforts in
implementing a risk-reduction based, cross-program perspective in its enforcement targeting, screening,
case development, negotiations, and filings." The Geographic Enforcement Initiative (GEI) targets
limited geographic areas with chronic non-compliance profiles and severe risks to human health and
the environment. The GEI has lead to an acceleration of multi-media, risk-based targeting of facilities
for enforcement actions. This geographic approach promises a greater opportunity to obtain measurable
results, primarily in terms of Toxic Release Inventory (TRI) reductions. The first GEI focused its
attention and resources on Southeast Cook County and Northwest Indiana. The overall goal of this GEI
is 50% reduction in toxic loading to NW Indiana by 1995. Within the regulated community, GEI hopes
to instill both environmental concern and momentum. Ideally, the Initiative will serve both as a
deterrent to non-compliance and an inspiration for voluntary environmental improvements. Amoco Oil's
voluntary testing program in NW Indiana suggests this may already be happening.
On October 16, 1991, DO], on behalf of Region V EPA, filed three civil enforcement cases in NW
Indiana-Inland Steel Corporation's Indiana Harbor facility (RCRA, CWA, SOW A, CAA). Bethlehem
Steel Corporation's Burns Harbor Facility (RCRA, SOW A), and the Federated Metal Corporation's
Whiting facility (RCRA). The coordinated case filings included in the GEI not only mark a turning
point in this area, but also stand out as a ground-breaking model for interdivisional cooperation and
multi-media enforcement. Widespread press coverage that EPA will be seeking 50% reduction of toxic
releases in NW Indiana and throughout the Great Lakes Basin promises to deter non-compliance
throughout the target area.
The GEI for the Northwest Indiana/Southeast Chicago area developed very rapidly to produce
tremendous results in water enforcement. A final stipulation resolved consent decree violations by the
East Chicago Sanitary District. It was entered in Federal District Court on October 4,1991. A consent
decree with the bankrupt USS Lead Company designed to control contaminated run-off from the site
into the Grand Calumet River was entered on May 28, 1991, and the first installment of a $40,000
penalty has been paid. An agreement in principle was reached with LTV Steel of East Chicago which
will result in the payment of a $250,000 fine and a $3 million sediment remediation effort in a water
intake plume that opens directly into Lake Michigan. The company is expected to sign the decree by
late October 1991. Gary Sanitary District signed a Consent Decree on September 3,1991, that calls for a
$1.25 million civil penalty, the repair and proper operation and maintenance of the Gary wastewater
treatment facilities and $1.7 million of sediment remediation on the Grand Calumet River
immediately downstream of the USX Gary Works discharges. The decree is expected to be entered in
October 1991. These cases form the foundation of the first comprehensive enforcement effort undertaken
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3 FY1991 Enforcement-Accomplishments Report
in a specifically designated Area of Concern.
In response to public concern for the ambient air quality in this GEI area, and the nationwide
interest in coke oven emissions, Region V instituted an area-wide coke oven compliance initiative. Coke
oven emissions are a known carcinogen, which have been listed under §112 of the Clean Air Act as
hazardous emissions. The Agency is currently developing standards for these emissions under its
National Emission Standards for Hazardous Air Pollutants (NESHAPS) program. There are fifteen
operating coke oven batteries in this area in Region V, representing over 50 percent of the Region's total,
and almost 20 percent nationwide. Under the direction of the Region V air enforcement office, detailed
inspections of all NW< Indiana/SE Chicago coke oven batteries were completed in FY 1991. Violations
were found at five of the coke oven batteries, and settlement negotiations to remedy the problems are
underway.
Region V has actively participated in national enforcement initiatives, including the filing of
eight of the 24 judicial actions filed national-wide in the Lead initiative. These complaints include
actions under RCRA, CERCLA, and the dean Water Act.
On September 26, 1991, Region V filed two administrative RCRA cases involving improper
import of hazardous waste from Canada. These cases were part of a, nation-wide Import/Export
Enforcement Cluster filing of two judicial and " 21 administrative . import/export cases. An
Administrative Complaint filed against Industrial Fuels and Resources South Bend, Indiana alleged
that the facility failed to submit required annual reports for exporting material during the periods of
1987-8 and 1989-90. The Agency is seeking compliance with annual report regulations as well as
penalties for past violations. * The second regional action, brought, against the Safetv-Kleen
Corporation, alleges that the facility failed to submit the required notifications of its intent to receive
hazardous wastes from foreign sources. The Administrative Complaint entered against the facility
requires the filing of such notices and seeks payment of a civil penalty. ' .
Region VI - Dallas , , ' , .'
(Arkansas, Louisiana, New Mexico, Oklahoma, Texas)
The Fiscal Year 1991 enforcement accomplishments in Region VI include expansion of multi-media
enforcement and intense involvement in the (development of enforcement activities and environmental
enforcement planning with Mexico. . ;
Four very intensive multi-media inspections were completed in Region VI during FY 1991. These
inspections included inspection and enforcement personnel from all EPA programs and from the State
agencies. The inspections were designed to assure that facilities in a targeted geographic are in
compliance with all environmental statutes and are not releasing toxics to the environment in violation
of the law. In addition, each of these facilities was requested to and has submitted a voluntary Toxics
Reduction Plan, in which the facility has outlined proposed methods of reducing the level of toxics
released to the environment beyond the level required by law. The compliance status of each of these
facilities in the various media is either under review or negotiations 'have commenced toward
developing a compliance order. Toxic Reduction Plans are being completely analyzed and will be
approved -after the compliance status is determined for all media.
The four multi-media inspections completed during FY 1991 were completed in two phases, with
Air, NPDES, and RCRA being conducted during Phase A and all other programs and sampling under Air,
NPDES, and RCRA being conducted during Phase B. The phased approach allowed a more complete
inspection with a second opportunity to address issues not adequately addressed or understood during
Phase A. The phased approach worked better with smaller facilities due to the limited number of
environmental staff the facility had available to escort EPA personnel throughout the site. The larger
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FY 1991 Enforcement Accomplishments Report
facilities generally had a larger staff and more flexibility. Regardless of the size of the facility,
advanced planning and knowledge of the size and expertise of the facility's environmental start is
paramount in the effective completion of a multi-media inspection.
Multi-media training is being implemented in Region VI with a module being added to the Basic
Inspector Training Course which provides new inspectors with an overview and status of multi-media
inspection activities in Region VI. In addition, multi-media inspection screening checklists are being
developed for use in FY1992.
In order to plan for expanded multi-media enforcement activities in FY 1992, Region VI prepared
a Multi-Media Enforcement Strategy which centers on a method for targeting facilities for multi-
media inspections, based on environmental risk and on the likelihood for violations in more than one
program. The strategy is intended to provide for several levels of multi-media inspections, including
the very intensive inspections with personnel from all programs, limited two media inspections, and
the use of multi-media screening checklists in single media inspections. The FY 1992 strategy has also
been provided to the States with requests for development of similar strategies in FY 1992 for FY 1993.
Four cases were filed against hazardous waste treatment, storage and disposal facilities (TSDs)
for failing to provide notifications to EPA of the intent to import hazardous waste, as required by RCRA
regulations. These cases were the first to be filed against violators involved in illegal hazardous
waste shipments from Mexico. Two export cases were filed against hazardous waste generators for
failing to comply with the terms of export notifications and Acknowledgements of Consent to export to
Mexico emission control dust or sludge from the primary production of steel in electric furnaces. These
two cases were part of the national cluster filing of import/export cases on September 26,1991.
EPA Region VI met with SEDUE, EPA's counterpart in Mexico, to begin work on an import/export
database integrating existing EPA/SEDUE data sources. The purpose of the database is to use as a tool
for coordinated enforcement of U.S--Mexico regulations related to hazardous waste transport and
management. The Region joined with SEDUE on seven cooperative visits to U.S. and Mexican
{maquiladora) facilities in order to review compliance by those facilities with U.S. and Mexico
hazardous waste requirements. The United States is particularly interested in "maquiladoras", which
are manufacturing plants located in Mexico in a sister city to one in the United States (e.g., Ciudad
Juarez and El Paso). The raw materials are shipped from a plant in the United States to a plant in
Mexico, where the manufacturing is done.
In December 1989, Presidents Salinas and Bush requested that environmental agencies draft an
Integrated Border Environmental Plan (IBEP) to assure that the border environment would be protected.
Region VI was the major author of the industrial source control section of this document and of the
hazardous waste section of the version which was first made available to the public in 1991. The
Region also participated in multiple meetings with states and local governments regarding the plan.
Finally, Region VI participated with the Office of International Activities in conducting six public
hearings and one public meeting on the IBEP in Texas and New Mexico.
In FY 1991, EPA Region VI co-hosted the third annual Maquiladora Conference in Tijuana, Mexico,
along with SEDUE. The conference was attended by 700 participants. The purpose of the conference
was to present information and discussions of the 1983 U.S./Mexico Agreement on Cooperation for the
Protection and Improvement of the Environment in the Border Area, The Conference focused on the
implementation of Annex III of the agreement, which concerns the transboundary shipment of
hazardous wastes and and hazardous materials. The conference also addressed U.S. and Mexican
regulations that govern the generation, transportation, treatment, storage and disposal of hazardous
wastes generated by the maquiladoras and U.S. border facilities.
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FY1991 Enforcement Accomplishments Report
A meeting was held on September 11,1991, with representatives of the U.S. parent companies of
eight maquiladoras operating in the border region in order to discuss the latest international
environmental developments and their prospective impacts on their operations. EPA explained the
status and direction of the proposed Integrated Border Environmental Plan (IBEP), as well as United
States federal and state initiatives planned for the remainder of 1991 through 1994. Each company
was asked to sign an environmental compliance pledge committing to make every effort to ensure that
its operations in Mexico, as well as the operations of all maquiladora subsidiaries or other affiliates
operating in Mexico fully comply with Mexico's environmental laws. In addition, each company was
requested to sign a compliance assessment pledge committing to initiation of an assessment of the
compliance status of all of its operations in Mexico. The assessment would include a review of all of its
operations to determine whether they are in compliance .with all applicable provisions of Mexico's
environmental laws. Each company was asked to submit to SEDUE, either a statement that its
operations are in compliance with Mexico's environmental laws or a proposal to expeditiously come into
compliance with Mexico's environmental laws and was asked to submit to Region VI a confirmation
that it has transmitted the results of the assessment to SEDUE. -.
Region VII - Kansas City
(Iowa, Kansas, Missouri, Nebraska)
Region VII actively participated in the National Lead Enforcement Initiative. Region VII
contributed to the overall effort with one judicial and four administrative enforcement actions. The
judicial case was filed under the Clean Air Act, and the Region filed one CERCLA, one CWA, one
EPCRA and two RCRA administrative cases. These cases were in addition to other EPA and state
enforcement actions taken since 1990 to address lead contamination under state and federal
environmental statutes.
Region VII filed three RCRA administrative cases on February 22, 1991, in the national effort to
address violations of the land disposal regulations. One of the cases, In the Matter of Universal
Rundle Corp.. was settled by an order entered July 18, 1991, requiring the respondent to pay a civil
penalty of $96,280. , . .
Region VII filed its first export case under RCRA on September 26,1991, against a facility which (
failed to file a notice of intent to export hazardous wastes and failed to obtain EPA approval prior to
exporting the wastes.
Region VII initiated a number of enforcement actions involving two or more statutes, and
negotiated several settlements which require environmental remediation in more than one media. For
example, in United States v. Gates Energy Products, an action under the Clean Air Act, the defendant
agreed to develop and implement an operational change to reduce lead releases into air, land, and
water media. In a RCRA administrative action, In the Matter of Hallmark Cards. Inc.. the respondent
is required to reduce printing-related hazardous wastes by 80% and to reduce air emissions of volatile
organic compounds by 80%. The Region also included requirements for multimedia environmental audits
in a number of settlements of enforcement actions.
Region VII included pollution prevention and waste minimization requirements in a number of
settlements of enforcement actions in FY 1991, primarily in actions under EPCRA, TSCA and FIFRA. In
twelve settlements entered pursuant to EPCRA §313, the Region assessed penalties of $208,500 and;
required supplemental environmental projects totaling $294,150, including reductions in or cessation of
the use of chemicals regulated under §313. In 33 settlements under TSCA for violations of the
polychlorinated byphenyls (PCB) regulations, Region VII obtained agreements to dispose of 6,500 PCS'
transformers, 381 PCB-eontammated transformers, 265 capacitors, and to test and eliminate PCBs in
65,919 transformers,
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FY1991 Enforcement Accomplishments Report
Region VIII - Denver
(Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming)
Organizational Improvements
During FY 1991, Region VIII implemented several organizational changes designed to enhance
the Region's media-specific enforcement activities as well as to expand multi-media capabilities. An
important modification has been the implementation of a two person team: the Regional Enforcement
Officer and the Regional Enforcement Coordinator, whose fulltime duties center on multi-media and
other enforcement issues. Their duties include: (1) monitoring new directions in the national enforcement
program and strengthening the Region's ability to address these new directions (2) promoting the
Administrator's multi-media program by developing the multi-media aspects of various enforcement
processes, such as case screening and inspection targeting; (3) assisting with regional initiatives
(geographic, industrial, or pollutant-specific); (4) supporting the Enforcement Standing Committee in
addressing enforcement issues and activities, such as case screening and inspection targeting.
Region VIII also broadened and strengthened the role of the Enforcement Standing Committee
which is responsible for making Regional enforcement-related decisions. The committee is chaired by
the Deputy Regional Administrator, and made up of the Division Directors and their Deputies, the
Enforcement Branch Chiefs, the Regional Enforcement Officer, the Regional Enforcement Coordinator,
the Office of Regional Counsel, the Office of Criminal Investigations, the Office of External Affairs,
The Committee meets at least once each month to review and screen potential cases according to the
national case screening guidance. For Regional issues, the committee establishes subcommittees (which
function as a Quality Action Team) to research specific topics and/or to develop options. To date this
method has successfully redesigned the screening process, targeting, enforcement strategic planning,
communications, and financial analyst support. In pursuing the multi-media processes, the Region has
seen value added in the improved communication and coordination between EPA Regions and programs
and Region VIII and its States. Region VIII's involvement in multi-media efforts has increased
knowledge of other program requirements, and and it has improved working relationships among the
people who manage the programs. Many of the Region VIII programs reported that the multi-media
efforts have given them an extra set of ears and eyes in the field, resulting in more efficient use of
resources and more comprehensive correction of environmental problems.
To enhance multi-media capabilities, Region VIII established a new branch and a new office: the
Multi-Media Enforcement Branch (MMEB) and the Office of Strategic Integration (OSI). The MMEB,
which is housed in the Environmental Services Division, focuses on multi-media and cross-program
inspections and coordinates the Region VIII multi-media field work. The OSI, which is housed in the
Policy and Management Division, focuses on ambient and compliance data for effective targeting of
enforcement resources across programs, coordinates policy activities and data integration in support of
multi-year planning and inspection targeting and supports multi-media efforts through use of the
Agency's new Integrated Data for Enforcement Analysis (IDEA) system and the Geographic
Information System (GIS), Region VIII has been a national leader in the use of IDEA. Activities in FY
1991 included: (1) in June 1991, the Region sponsored a demonstration for managers and staff and
training for enforcement data personnel on the Integrated Data for Enforcement Analysis (IDEA)
system; (2) the Region used the IDEA system to develop FY 1992 inspection targets; (3) IDEA is
routinely used in the Regional case screening process which has resulted in identification of additional
multi-media components to cases.
Region VIII's Sand Creek Enforcement Pilot Project is a multi-media, cross-program, geographic
initiative designed to survey and inspect facilities in the Sand Creek area near metropolitan Denver.
This initiative, includes not only EPA Region VIII but also the State of Colorado and local entities. It
has provided experience in the use of inspection checklists, multi-media inspection coordination, multi-
6-15
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FY1991 Enforcement Accomplishments Report
media enforcement the use of the CIS for initiatives, and multi-agency coordination. This initiative
was designed to be performed in three phases. Phase One, involving selection of the study area,
preparation of the workplan, and preparation of the communications plan, is complete. Phase Two
consists of two parts. The first portion consists of initial "survey" inspection performed by teams of
inspectors from individual programs as well as the State and local Health Departments. Each program
prepared its own checklist and trained the state and local personnel in its use. Evaluation of the
checklists used during the inspections will help to target inspections where information obtained
during the inspections indicated potential violations. Eighteen (18) inspectors were trained to use
survey forms which outlined the basic requirements for each of 13 regulatory programs. The results of
these "surveys" will indicate which facilities require more in-depth program specific inspections at a
later date. The second portion of Phase Two consists of follow-up inspections. The planning stage for
these inspections began in the first quarter of FY 1992. and the actual field work is scheduled for the
second quarter of FY 1992. The lead inspection and /or enforcement role will go to either Colorado
Department of Health or EPA Region VIII with the lead depending on which agency has authorization
for the regulations. Phase Three will be the wrap-up phase where the Region looks at the costs versus
the benefits and lessons learned. Thereafter a comprehensive enforcement strategy between the State
and EPA will be developed.
Region IX - San Francisco
(Arizona, California, Hawaii, Nevada, Trust Territories )
Region IX concluded a geographically based Enforcement Pilot Project which focused the
Pretreatment Program, Spill Prevention Control and Countermeasure Program and Wetlands Protection
Program to preserve and protect the unique environmental character of San Francisco Bay. Both,
referrals and administrative enforcement actions resulted from the Region's intensive Pretreatment
Program Evaluations which were conducted at three south bay wastewater treatment plants. Enhanced
coordination with the U.S. Army Corps of Engineers San Francisco District office for Clean Water Act,
§404 permitting, and multi-agency training in wetlands enforcement will support this initiative well
into the future. The SPCC efforts verified substantial compliance levels which reflect the deterrence
established by the 1989 Shell Oil, Martinez case. Additional geographically based multi-media
enforcement initiatives will be considered as part of the Region's enforcement management process.
i
Region IX enforcement efforts produced landmark settlements with the signing of Clean Water
Act Consent Decrees with two northern California pulp mills (Louisiana Pacific and Simpson Paper
Company), achieving $5.8 million in penalties, commitments to alter processes, provide treatment, and
extend discharge structures as necessary to comply with their NPDES permits, notably chronic toxicity
limits. These nationally publicized settlements incorporate our concern for chronic toxicity, coastal
protection, and pollution prevention.
Aggressive Region IX enforcement on the US/Mexico border continues, Elpower Corporation, a
battery manufacturer with facilities in San Diego and in Mexico, was found to have violated EPCRA at
one of their U.S. based facilities. In negotiating a settlement of the administrative action, Elpower
agreed to reduce,the lead usage at their Mexican based facilities by 88,561 pounds per year.
Assuring proper operation and maintenance at major electric power plants was supported by recent
Region IX settlement agreements reached with Nevada Power Company (NPC) and Arizona Public
Services Company (APSC). These coal-fired steam generating facilities continued to operate NSPS-
affected units during periods of malfunction without employing good air pollution control practices for
minimizing emissions. NPC will pay $400,000, APSC will pay $1,310,000, and both companies agreed
to significant stipulated penalty provisions. These cases are the first time that failure to comply with,
good operations and maintenance requirements was used successfully as the principal cause of action, ,
6-16
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FY1991 Enforcement Accomplishments Report
The Department of Justice on behalf of EPA filed a major lawsuit against the owner and operators
of the Casmalia Landfill, a commercial hazardous waste land disposal facility in Santa Barbara
County, California. This is the largest case filed under RCRA in the State of California. EPA is seeking
penalties in excess of six million dollars and injunetive relief for conducting clean-up activities at the
site. Costs for closure and cleanup of the site are expected to exceed $20 million.
Region X - Seattle
(Alaska, Idaho, Oregon, Washington)
Five multi-media inspections were conducted by Region X during FY 1991. The Region inspected
pulp and paper mills, and also focused on the Longview, Washington geographic area. Region X
learned that multi-media inspections can be a very effective method to establish the baseline
compliance status of a source and to look at a facility from a more holistic viewpoint. Even when civil
enforcement actions were not taken, procedures to ensure continuous compliance, such as establishing
formal operation and maintenance programs, helped to increase awareness and promote an integrated
view of environmental programs. The Region believes the effort brought about a strong deterrence effect
since other mills, as well as other companies in the area, heard about the "new" EPA inspection
approach. Inspections were conducted at Weyerhaeuser, Longview, WA; Boise Cascade, St. Helens, OR;
Kalarna Chemical, Longview, WA; Reynolds Aluminum, Longview, WA; and Port Townsend Paper, Port
Townsend, WA.
Criminal enforcement in Region X produced three landmark actions. In US. v Exxon
Corporation and U.S. y Exxon Shipping Corporation, as part of a global settlement of Federal
enforcement actions arising from the discharge of over 10 million gallons of crude oil from the tanker
"Exxon Valdez" in Prince William Sound on March 23,1989, the two corporate defendants entered into a
new plea agreement with the government on September 30,1991. In the new agreement, Exxon Shipping
agreed to plead guilty to three counts and Exxon Corporation agreed to plead to one count of the
indictment returned against them in Anchorage, on February 27,1990. Exxon Shipping will plead to a
misdemeanor violation of the Clean Water Act, 33 U.S.C. §1311(a) and §1319(c)(l)(a), for the negligent
discharge of oil without a permit; a misdemeanor violation of the Refuse Act for the illegal discharge
of refuse (oil) from a ship, 33 ILS.C. § 407 and §411; and a violation of the Migratory Bird Treaty Act,
16 U.S.C. §703 and §707(a) for the unpermitted killing of over 36,000 migratory birds; and pay a fine of-
10-$20 million. The Exxon Corporation will plead guilty to the one Migratory Bird Act count and pay a
fine of $5 million. Both defendants also agreed to make a remedial payment of $50 million to the State
of Alaska and $50 million to the federal government for restoration projects relating to the oil spill.
The plea agreement was accepted in Federal District Court on October 8,1991.
The second was a RCRA guilty plea in U.S. y_. Rogue Valley Circuits, Inc. On March 25, 1991
Henry Broughton, on behalf of Ms corporation, Rogue Valley Circuits, Inc. of Medford, Oregon, pled
guilty to both felony counts of the indictment that had been issued on March 20, 1991. Rogue Valley
had been charged with violation of RCRA as a result of its illegal transportation and disposal of
hazardous wastes. The company manufactures circuit boards and had disposed of its electroplating
wastes on Broughton's rural ranch in southwestern Oregon. On April 24,1990, agents executed a federal
search warrant authorizing the excavation of buried sludge by EPA's Superfund contractors at the
ranch. Based on the analysis of this sludge, EPA and Broughton signed a consent order under CERCLA
which holds Broughton liable for the clean-up costs amounting to about $800,000.
In pleading guilty, Rogue Valley Circuits, Inc. also entered into a plea agreement with the U.S.
Attorney's Office. Under the agreement, the company will bear all cleanup costs, which have been
estimated to range between $500,000 and $800,000. On May 28, 1991, Rogue Valley Circuits was
sentenced to pay a $1 million fine.
6-17
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Enforcement-Accomplishments Report
In the third criminal case, Weyerhaeuser Company agreed to enter a plea of guilty to five
misdemeanor counts for violations of the federal Clean Water Act The criminal charges stem from the
unpermitted discharge of paint wastes, solvents and wash water into Shannon Slough, a tributary of
the Chehalis River, from the end seal and stencil painting operation at the company's Aberdeen,
Washington, sawmill.
As a result of an inspection and a subsequent search warrant executed on October 6, 1989, the
agents learned that Weyerhaeuser had discharged these wastewaters directly into the Shannon
Slough for almost nine years. As part of the plea agreement, Weyerhaeuser paid a total of $500,000 in
a combination of fines and restitution. Of this half million dollar amount, $125,000 was paid by
Weyerhaeuser as a criminal fine. This represented a fine of $25,000 per count, the maximum possible
fine under the Clean Water Act. The remaining $375,000 was placed in a trust fund controlled by public
officials as a form of restitution to the citizens of Grays Harbor County. The money from the fund was
used for cleaning up and eradicating all pollution sources along the Shannon Slough. Since the federal
involvement commenced in July 1989, Weyerhaeuser has spent almost $1.4 million to clean up the
property adjacent to the Shannon Slough, and to remedy historic pollution problems at the plant. The
$375,000 for the trust fund was in addition to this amount.
As a result of their criminal convictions, both Exxon and Weyerhaeuser were mandatorily listed
for violation of the Clean Water Act under provisions of the EPA's contractor listing process pursuant to
40 CFR 15.10 etseg.
6-18
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FY1991 Erforcement Accomplishments Report
Appendix
Historical Enforcement Data
National Penalty Report
List of Headquarters Enforcement Contacts
List of Regional Enforcement Information Contacts
-------
2997 Enforcement Accomplishments Report
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FY 1991 Enforcement Accomplishments Report
NATIONAL PENALTY RipQRT
OVERVIEW OF EPA FEDERAL PENALTY PRACTICES
FY 1991
March 1992
Compliance Policy and Planning Branch
Office of Enforcement
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FY1991 Enforcement Accomplishments Report
ACKNOWLEDGEMENTS
This report was coordinated by the Compliance Policy and Planning Branch of the Office of
Enforcement. Ann DeLong was the project manager and principal author, Robert Banks
provided the graphs. The following contributed the program-specific data:
Criminal Enforcement Howard Berman, OE
Clean Water Act
Judicial David Drelich, OE
Administrative ' Ken Keith, OWEP
Safe Drinking Water Act
UIC Peter Bahor, ODW
PWSS Anne Jaffe Murray, ODW
Wetlands Protection John Goodin, OWOW
Marine and Estuarine
Protection Catherine Crane, OW
Stationary Source Air Jerry MacLaughlin, OE
Mobile Source Air Marcia S. Ginley, OMS
RCRA
Judicial James Chen, OE
Administrative Robert Small, OWPE
r
EPCRA § 302-312 and Joe Schive, OWPE
CERCIA § 103
Toxics Release Inventory, Jerry Stubbs, OCM
TSCA and FIFRA
These authors and their colleagues devoted many long hours to the collection, verification,
analysis and display of these data. Questions and comments concerning this report should
be addressed to Ann DeLong, (202) 260-8870,
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FY199J Enforcement Accomplishments Report
TABLE OF CONTENTS
I. EXECUTIVE SUMMARY
General Findings
Program Highlights
II. PURPOSE, SCOPE AND LIMITATIONS OF THIS REPORT
Programs Covered
Cases Covered
Purposes and Limitations
HI. GENERAL OVERVIEW
Highlights
Median and Average Penalties
Percentage of Cases Concluded with a Penalty
Range of Penalty Amounts
Highest Penalties
Types of Cases
Criminal Enforcement
Relative Contributions
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FJ1991 Enforcement Accomplishments Report
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FY1991 Enforcement Accomplishments Report
I- EXECUTIVE SUMMARY
General Findings
Overall, this Administration has assessed some 55% of all civil penalties and criminal fines,
combined, assessed in EPA history ($200.7 million for FY 1989-1991 compared with $166,1 million for
FY 1972-1988).
Fiscal Year 1991 brought the highest penalty dollars in EPA's history, with $73.1 million in civil
penalties. This represents a 21 percent increase over FY 1990. There was only a slight increase in the
number of cases from FY 1990 to FY 1991, indicating that this increase in penalty dollars was due
primarily to an increase in penalty amounts per case. Program offices are making effective and
forceful use of EPA's penalty authorities.
EPA has obtained almost $320 million in cash civil penalties from FY 1974 through FY 1991 in some
12,530 civil judicial and administrative cases.
In FY 1991 alone, 23 percent of all civil penalty dollars in EPA's history were obtained.
In the last three years, 53 percent of all civil penalty dollars in EPA's history were assessed.
The FY 1991 total includes a civil judicial penalty for $220,000 assessed under the Lead Control
Contamination Act. This Act, designed to prevent excessive lead from drinking water coolers, was a
1988 amendment to the Safe Drinking Water Act. This penalty reflects the first case brought by the
Agency under this Act
Criminal fines totaled $14.1 million in FY 1991 (before deducting suspended sentences). This
represents a two and a half fold increase from FY 1990 and is the highest amount ever assessed by
EPA for criminal cases. Seventy-five years of incarceration were imposed (before suspension).
In the five years EPA's criminal enforcement program has been tracking penalty data, $43.8 million
in criminal fines and 298 years of incarceration have been imposed before deduction of suspended
sentences. One third of all criminal fines in EPA's history were assessed in FY 1991.
Penalties were obtained in 85 percent of the cases concluded in FY 1991.
Program Highlight^
Most programs set new records for total civil judicial and administrative penalty dollars.
In descending order of total penalties assessed, these programs were the following; CWA, RCRA,
Stationary Source Air, EPCRA §313, UIC, FIFRA, EPCRA §302-§312 and Marine and Estuarine
Protection. The increases for these programs over last year's totals ranged from 22% for Stationary
Air to 214% for UIC.
Medians reached record highs for both judicial and administrative cases in the CWA and UIC, and
for administrative cases alone in Wetlands*.
* Throughout the report, Wetlands actions refer to CWA §404. CWA §402 and pretreatment actions are
referred to as CWA actions.
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FY1991 Enforcement Accomplishments Report
Many programs set records for highest penalties within program offices.
The largest penalty assessed in FY 1991 was $6,184,220 obtained in a GWA judicial case. The second
largest penalty was assessed in a RCRA judicial case which settled for $5,405,000*. Both penalties
were higher than the second highest penalty assessed in FY 1990 ($3,750,000}**. Additional
programs with highest penalties greater than $1 million included Stationary Air judicial, RCRA
administrative and TSCA administrative.
Federal penalty dollars were dominated by CWA with 36% of the total. RCRA was second with
24%, followed by TSCA (15%), Stationary Air (10%) and EPCRA 313 (5%).
Numbers of cases were dominated by five programs, TSCA had the highest number of cases with 20%
followed by Mobile Source Air (16%), CWA (15%), FIFRA (13%) and EPCRA 313 (12.7%), All five
programs rely heavily on administrative enforcement.
II. Purpose, Scope. and Limitations of jhis Report
This overview report summarizes the penalty practices of EPA in FY 1991 in civil judicial, administrative,
and criminal enforcement actions. Except where specifically noted, the term "penalties" is used in this
overview to refer only to civil (administrative and judicial) penalties, not criminal fines.
This report does not attempt to portray a complete picture on penalties obtained during enforcement of federal
environmental laws, because it does not reflect penalties obtained by state or local governments, either
directly or through court actions with EPA. States conduct the vast majority of enforcement actions under
these laws, working through programs approved by EPA to carry out federal requirements.
Programs Covered
Thirteen EPA penalty programs are addressed in this report. Table 1 gives their names, the types of
enforcement cases each used in FY 1990, and any acronyms by which they are cited in this report.
CasesCovered ' . ,
The penalties discussed in this report are cash amounts assessed in EPA enforcement cases that were concluded
in FY 1991. They include final judgments by court settlements in consent decrees and consent orders and final
administrative orders.
This report does not include proposed penalties or other amounts under discussion prior to the conclusion of a
case, and it does not include penalties paid to entities other than the Federal Government. Contempt
enforcement actions (cases seeking to invoke sanctions for a failure to comply with a prior court order, decree,
or administrative order) are not included.*** "Stipulated penalties" and "deferred penalties" also are not
included in this report; they are penalties stipulated in an administrative or court order that are due only if
the violator fails to carry out certain other requirements of the order. Nor does the report include the use of
other sanctions, such as contractor listing, sewer moratoriums, or the suspension or revocation of permits.
The RCRA judicial penalty contains $5 million in contempt actions.
The highest penalty in FY 1990 was $15 million assessed under TSCA and RCRA in the Texas
Eastern Pipeline case. This was the single highest penalty in the Agency's history.
With the exception of a RCRA judicial case in Region V which includes $5,000,000 in contempt
actions.
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FY 1991 Enforcement Accomplishments Report
fe %
By1
Table 1
Penalty Programs Covered in this Report
Program
Criminal Enforcement
Clean Water - NPDES (CWA)
Safe Drinking Water Act (SDWA)
Wetlands Protection
Marine and Estuarine Protection
Stationary Source Air
Mobile Source Air
Resource Conservation and Recovery Act (RCRA)
Emergency Planning and Community
Right-to-Know Act (EPCRA §302-§312)
Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA §103,
orSuperfund§103)
Toxics Release Inventory
(TRI, or EPCRA §313)
Toxic Substances Control Act (TSCA),
Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA)
Typea of Cases
Judicial
Judicial
Administrative
Judicial
Administrative
Judicial
Administrative
Ad ministrati ve
Judicial
Administrative
Judicial
Administrative
Judicial
Administrative
Administrative
Administrative
Administrative
Judicial
Administrative
Administrative
Credits, benefit projects, or non-monetary actions which parties in enforcement cases often agree to carry out as
part of a settlement are also not included in this report. Such actions may yield large environmental benefits
of substantial dollar value. Narrative description of specific cases can be found in the FY 1991 Enforcement
Accomplishments Report,
As in past reports, the FY 1991 Federal Penalty Report does not include penalties assessed in the Underground
Storage Tank program (UST). The reason for this exclusion was because UST is primarily a state delegated
program.
One element of this report is an analysis of the extent to which EPA used penalties in its enforcement cases.
Some cases did not obtain penalties. The cases without penalties included in this report are enforcement
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FY1991 Enforcement Accomplishments Report
actions in which a penalty is authorized by the statutes and regulations on which the case is based. If
Congress did not authorize EPA to assess a penalty for a given type of violation, an enforcement action for such
a violation would not be counted as a case in this report,
Penalties are counted in this report as assessed in a final administrative action or in a court order; appeals and
collection of penalties are not considered here. The word "obtained" is used in this report as a general term
referring to penalties that were assessed by a court or by EPA administrative orders. Its meaning is the same
as "assessed" or "imposed."
Purposes ar^d Limitations
This overview report is not an evaluation of practices by EPA programs, and it should be viewed in the context
of the total enforcement effort. The report may illuminate individual characteristics of programs and
provide a helpful comparison among programs. Identifying differences may stimulate further thinking about
penalties in general, advancing the goal of more effective use of penalties as part of an overall enforcement
program.
The reader should bear in mind that the data presented here are historical in'nature, and do not necessarily
represent present penalty practices. Nothing in this report may be used as a defense or guide to future
settlements of federal cases involving penalties.
The specific penalty data used in this report were obtained from several federal data systems. The data have
been approved by the responsible program offices, but the quality and completeness of the data may vary.
HI, GENERAL OVERVIEW
Highlights
Fiscal Year 1991 brought the highest penalty dollars in EPA's history, with $73.1 million in civil
penalties. This represents an 21 percent increase over FY 1990. There was only a slight increase in
the number of cases from FY 1990 to FY 1991, indicating that this increase in penalty dollars was due
primarily to an increase in penalty amounts per case. Program offices are making effective and
forceful use of EPA's penalty authorities.
EPA has obtained almost $320 million in cash civil penalties from FY 1974 through FY 1991 in some
12,530 civil judicial and administrative cases.
In FY 1991 alone, 23 percent of all civil penalty dollars in EPA's history were obtained. -.
In the last three years, 53 percent of all civil penalty dollars in EPA's history were assessed.
The FY 1991 total includes a civil judicial penalty for $220,000 assessed under the Lead Control
Contamination Act, This Act, designed to prevent excessive lead from drinking water coolers, was a
1988 amendment to the Safe Drinking Water Act. This penalty reflects the first case brought by the
Agency under this Act. ' s
Criminal fines totaled $14.1 million in FY 1991 (before deducting suspended sentences). This
represents a two and a half fold increase from FY 1990 and is the highest amount ever assessed by
EPA for criminal cases. Seventy-five years of incarceration were imposed (before suspension).
In the five years EPA's criminal enforcement program has been tracking penalty data,,$43.8 million
in criminal fines and 298 years of incarceration have been imposed before deduction of suspended
sentences. One third of all criminal fines in EPA's history were assessed in FY 1991, , ,.
Penalties were obtained in 85 percent of the cases concluded in FY 1991.
6
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FY1991 Enforcement Accomplishments Report
The total amounts of civil penalties for each program in FY 1991 are shown in Table 2. Criminal penalties are
shown in Table 4. The historical picture is shown in Figures 1 and 2, displaying total penalties by fiscal year.
The relative contributions of the different EPA programs to the FY 1991 totals of civil penalty dollars and
number of cases with penalties are shown in Figures 3 and 4.
Seven programs set new records for total civil judicial or administrative penalty dollars. These programs
were CWA, Marine, Stationary Air, RCRA, EPCRA §302-§312, EPCRA §313 and FIFRA. The penalties ranged
from the high for FIFRA of $932,925 to a high for CWA of $26.6 million. The percent increases for these
programs over last year's totals ranged from 22% for Stationary Air to a 214% increase for UIC.
A comprehensive summary of the programs' civil penalty data appears in Table 3.
Table 2
Total Amount of Civil Tudicial and Administrative Penalties in FY 1991
Clean Water Act
Judicial
Administrative
Safe Drinkin
Judicial
Administrative
Wetlands Protection
Judicial
Administrative
Marine and Estuarii
Administrative
Mobile Source Air
Judicial
Administrative
RCRA
Judicial
Administrative
TOTAL
Total dollars (%)
t $ 26,623,930 (36%)
23,109,832
ive 3,514,098
faterAct $ 2,035,734(3%)
570,514
ive 1,465,220
:tion $ 504,200 (1%)
172,500
ive 331,700
larine Protection
ive $ 264,200 (<1%)
ce Air - Judicial $ 7,346,481(10%)
,ir $ 2,334,008(3%)
9,800
ive .. r 2,324,208
$17,671,457 (24%)
10,026,594
ive 7,644,863
12 - Administrative $ 631,218 (<1%)
Administrative $ 258,450 (<1%)
nventory - Administrative $ 3,910,210 (5%)
itrative $10,591,315 (15%)
strarive $ 932,925(1%)
$ 73,104,128
No. All Cases*(%)
205 (12%)
57
148
161 (10%)
8
153
23 (1%)
8
15
5 (<1%)
65(4%)
212 (13%)
3
209
142 (8%)
18
124
23 (1%)
20 (<1%)
194 (12%)
336 (20%)
278 (17%)
1,664
"Number of all cases" includes all cases with or without penalties. Percentages shown here will differ from
analyses presented elsewhere in this report which are based on only those cases with cash penalties.
* The total RCRA judicial amount includes $5,000,000 in contempt actions.
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FY1991 Enforcement Accomplishments Report
FIGURE 1
80/100,000
70,000,000
60,000,000 -
D
O 50,000,000 -
L
L 40,000,000
A
R 30,000,000 -
S
20,000,000 .
10,000,000 -
Federal Judicial and Administrative Penalty Assessments
FY 1977 to FY 1991
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88 FY89 'FY90 FY91
I ADMINISTRATIVE H JUDICIAL
FIGURE 2
i ' ' ' - '/
TOTAL PENALTIES BY FISCAL YEAR
70 000 000
60,000 000 '
D
i-i 50 000 000 -
L
L 40 000 000
A
R 3fl 000,000
S
20,000 000
10,000 000
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FY1991 Enforcement Accomplishments Report
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FY1991 Enforcement Accomplishments Report
FIGURES
FY 1991
PERCENT PENALTY DOLLARS BY PROGRAM
OTHERS 10%
TSCA15%
RCRA 24%
CWA36%
STATAIR10%
TRI5%
FIGURE 4
FY1991
PERCENT PENALTY CASES BY PROGRAM
OTHERS 5%
FIFRA 17%
MOBILE 13%
SDWA 10%
CWA 12%
STATAIR 4%
TRI12%
RCRA 8%
TSCA 20%
10
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/s
FY 1991 Enforcement Accomplishments Report
Table 4
Total Amount of Criminal Fines and Incarceration in FY 1991
Number of defendants convicted 72
Total fines assessed
Before suspension $14.1 million
Total months incarceration
Sentenced (before suspension) 963 months (80 years)
Ordered (after suspension, before parole) 610 months (51 years)
Median and Average Penalties
This section of the report attempts to look beyond the aggregate figures to see what the typical penalties
were for each program. Average and median penalty figures represent different aspects of the program,
The average penalty is the total dollars divided by the number of penalty cases in a given program. While
an average is useful in seeing overall program accomplishments, it may give a misleading picture if the
penalties within that program went to extremes. One high-penalty case and a large number of low-penalty
cases could produce a mid-level average, even though no cases had a mid-level penalty.
The median is useful to gain a different perspective on a program without the heavy influence of a few
extremely large or small penalties. The median penalty represents the middle number in the series of all
penalties for a given program arranged in order of size. That is, there were as many penalties below the
median as above it.
Medians - Figure 5 shows trends in medians over several years for the largest EPA penalty programs during
that period. Among the programs with five years or less of penalty history, only RCRA judicial cases are
shown. In the Mobile Source Air and TSCA programs, the data reflect several different penalty authorities,
including some that lead to higher-dollar penalties. However, most of the cases in both these programs are in
lower-dollar categories, which results in low median penalties.
Medians increased for both administrative and judicial cases in the RCRA program and remained the same for
judicial cases in the Water and Stationary Source Air programs. The median for administrative cases in the
Mobile Air program remained at the same level as FY 1990. Decreases were seen in the median penalties in
administrative cases in both the TSCA and FIFRA programs in FY 1991.
In the foregoing discussion of change in medians, there is no mention of TSCA judicial cases or Stationary
Source Air administrative cases, because there were too few cases in FY 1990 or 1991 or both years to make
these categories suitable for such analysis.
Clean W^ter Acfc The median judicial penalty rose from its FY 1990 level of $63,000 to a record high
of $100,000 in FY 1991. The median administrative penalty also rose to a new high of $12,000 from $10,650 in
FY 1990.
Safe_Prinking Water Acfc The median judicial penalty remained at $8,500, the same level as in FY
1990. (This reflects FY 1991 medians of $14,000 for four UIC cases and $11,250 for two PWSS cases.) The
median administrative penalty remained at $4,000 in FY 1991, the same as in FY 1990. (The subprogram
medians in FY 1991 were $6,000 for 140 UIC cases and $4,000 for 14 PWSS cases.)*
*This does not include the $220,000 Lead Control Contamination Act penalty.
11
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FY1991 Enforcement Accomplishments Report
Wetlands Protection; In this fourth year of administrative penalty cases concluded by the program,
the median dropped to $5,000, compared to the FY 1990 level of $11,000. The median judicial penalty was
$42,500, an $5,000 increase from $5,000 in FY 1990. (This is the fourth year Wetlands penalties have been
presented separately in this report. They were included as part of Clean Water Act data in penalty reports
prior to FY 1988.)
Marine and Esttiarine Protection: This program is in its second year for cases concluded and
median administrative penalty from $19,594 in FY 1990 to $66,050 FY 1991.
Stationary Source Air; The median judicial penalty rose slightly from $48,000 in FY 1990 to $48,250
in FY 1991. The record was set in FY 1987 with a median of $65,750.
* Mobile Source Air; The median judicial penalty was $4,900, reflecting only three cases. This is a
slight increase from the FY 1990 level of $4,000 for three cases. The median administrative penalty remained
at 1,200 in FY 1991, the same level as FY 1990.
RCRA: The median judicial penalty of $157,942 was the highest to date in this program. The median
administrative penalty continued rising for the eighth year in a row, also attaining a new record of $21,475.
EPCRA § 3Q2-312: In the third year of concluded cases, this program surpassed its first two years
median's with a penalty of $40,500 compared to $20,600 in FY 1990.
" CERCLA § 103; In the third year of concluded cases, this program's median penalty decreased from the
FY 1990 level of $25,000 to $13,900 in FY 1991.
Toxics Release Inventory; In this third year of concluded cases, this program's median penalty also
decreased slightly from $13,000 in FY 1990 to $12,750 in FY 1991.
* TSCA: The median administrative penalty attained a record high of $12,500, rising from $8,000 in FY
1990. Prior to FY 1986, TSCA medians were not calculated on a program-wide basis.
* FIFRA; The median penalty rose from $1,056 in FY 1990 to $1,920 in FY 1991, setting a new record for
F1FRA medians. '
Averages - Average civil judicial or administrative penalties increased in seven programs in FY 1991 as
compared with twelve in FY 1990. Declines were evident in five programs. However, it should be noted that
averages may be influenced by a few large cases, A year with one or two extremely large cases may have a
much higher average penalty than a year without any, even though the latter may have had larger
penalties in most enforcement cases,
Averages rose to record highs in the Clean Water Act in both judicial and administrative cases. For judicial
cases only, averages rose to new highs in the Stationary Source Air and RCRA programs. For administrative
cases, increases in the averages were seen in the Safe Drinking Water Act program. Wetlands program, RCRA,
TRI and FIFRA programs.
Lower average penalties were reported in the SDWA and Wetlands programs in judicial cases and in
administrative cases in the Mobile Air, EPCRA and CERCLA §103 programs.
Clean Water Acfc The average judicial penalty rose to a record high of $405,258, In the fourth year of
administrative penalties, the average attained a record of $23,937.
12
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FY1991 Enforcement Accomplishments Report
Safe Drinking Water Act The average judicial penalty dropped to $21,152 compared to a high of
$37,557 in FY 1990. However, the average administrative penalty rose to $9,566 in FY 1991.*
Wetlands Protection: The average judicial penalty dropped to $21,563, compared to $49,114 in FY
1990. In the fourth year of administrative penalties, the average rose in FY 1991 to a record high of $22,113.
Marine j*M Esttiarine Protection: In the third year of administrative penalties, the average rose
to a record high of $66,050 in FY 1991 with five cases concluded.
* Stationary Source Air; The average judicial penalty rose from $100,615 in FY 1990 to $112,217 in FY
1991.
Mobile Source Air: The average administrative penalty rose for the first time in two years, from
$8,962 in FY 1990 to $11,121 in FY 1991. The average judicial penalty dropped sharply from $335,667 in FY
1990, to $3,267 in FY 1991 based on only three cases.
RCRA; The average judicial penalty increased from the FY 1990 average of $325,333, to $527,245 setting
a record. The average administrative penalty rose substantially to $37,129, compared lo $25,339 in FY 1990
(this excludes one very large penalty of $3375,000 from the average).
EFCRA § 302-312: In this third year of concluded cases, the average penalty dropped from $40,627 to
$29,709.
CERCLA § 103: In this third year of concluded cases, the average penalty dropped sharply from
$31,400 to $8,550.
Toxics Release Inventory In this third year of concluded cases, the average penalty rose from
$15,626 to $20,464.
TSCA: The average administrative penalty decreased slightly to $33,867 compared to $34,311 in FY
1990. (Averages were not calculated on a TSCA program-wide basis before FY 1986.)
FIFRA: The average penalty rose to a new high of $3,350. For the FIFRA program, this is an increase
over the FY 1990 average of $2,555.
Percentage of Cases Concluded with a Penalty
A high percentage of cases were concluded with a penalty in all programs except one (UIC). Excluding this one
program from the calculation, 84 percent of all FY 1991 cases were concluded with a penalty, a decrease from
the FY 1990 level of 93%. (See Table 4 for each program's percentage with penalty.)
Range of Penalty Amounts
This section examines how EPA's penalties in FY 1991 ranked along the scale from low dollars to high dollars.
The penalty cases are sorted into eight ranges from no-penalty cases ("zero dollars") to cases of $1 million or
more.
Figure 6 shows the penalty distribution of all FY 1991 cases.
"This does not include the $220,000 Lead Control Contamination Act penalty.
13
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FY1991, Enforcement Accomplishments Report
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FY1991 Enforcement Accomplishments Report
Highest Penalties
Eight programs established new records for highest individual administrative or judicial penalties -- that is,
the highest penalty assessed in a single case. Record judicial penalties were set in FY 1990 in the Safe
Drinking Water Act (UIC) and Wetlands programs. Record administrative penalties were set in the Clean
Water Act, EPCRA §302-312, CERCLA §103, Toxics Release Inventory (EPCRA §313), and FIFRA. TSCA set
the highest administrative and judicial penalties in FY 1990. The highest penalties in each program are
shown in Table 5,
Table 5
Highest Penalty in FY 1991 by Program
$ 1,500,000
$5,000
$ 5,405,000*
Clean Water Act
Safe Drinking Water Act
Wetlands Protection
Marine and Estuarine Protection
Stationary Source Air
Mobile Source Air
RCRA
EPCRA §302-312
CERCLA §103
Toxics Release Inventory
TSCA
FIFRA
* Includes $5,000,000 in contempt actions.
Types of Cases
About $41.2 million, or 56 percent, of all EPA federal penalty dollars in FY 1991 came from judicial cases. The
remaining $31.9 million (44 percent) came from administrative cases.
There were more administrative cases than judicial cases. Some 89 percent (1,250) of all cases with penalties
were administrative enforcement actions, compared to 11 percent (152 cases) that were judicial actions.
In general, the penalty is likely to be higher in a judicial case than in an administrative case, but the ranges
overlap. For instance, among EPA's larger penalties in FY 1991, the highest administrative penalty was $3.4
million brought by the RCRA program, and the highest judicial penalty was $6.2 million brought by the
Clean Water Act program.
18
Administrative
$125^000
$ 125,000
$ 100,000
$ 150,000
$ 875,000
$ 3,375,000
$ 82,250
$ 60,000
$ 142,800
$ 2,220,000
$ 287,920
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FY 1991 Enforcement Accomplishments Report
Considered on an agency-wide basis, the proportions of dollars and cases from the judicial and administrative
categories in FY 1991 are similar to those in the past five fiscal years. The percentages within that period
varied within a range of 15 percentage points for penalty dollars, and 4 percentage points for cases.
Criminal Enforcement
The Criminal Enforcement program operates on a cross-media basis, serving all the major programs that have
been authorized by Congress to use criminal sanctions against violators. Most criminal cases include charges
under more than one environmental law, but for statistical purposes each case is listed under one predominant
statute. On this basis, the programs with the largest numbers of fines assessed in FY 1991 were RCRA ($8.7
million), CWA ($5.2 million) and CAA ($.3 million).
Relative Contributions
The Clean Water Act program dominated civil penalty dollars in FY 1991, with 36 percent of the total (see
Figure 3). It was followed by RCRA (24 percent), TSCA (15 percent). Stationary Source Air (10 percent) and
Toxics Release Inventory (5 percent) programs.
The majority of cases with penalties in FY 1991 were concluded by programs that made heavy use of
administrative cases (see Figure 4): TSCA (20 percent), FIFRA (17 percent), Mobile Source Air (13 percent).
These shares are very similar to FY 1990 program shares.
19
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FY1991 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
Enforcement Counsel for Air Enforcement
Enforcement Counsel for Water Enforcement
Enforcement Counsel for Superfund Enforcement
Enforcement Counsel for RCRA Enforcement
202-
202-
202-
202-
'202-
202-
202-
202-
Enforcement Counsel for Pesticides and Toxic Substances Enforcement 202-;
Office of Criminal Enforcement
Office of Compliance Analysis and Program Operations (OCAPO)
Office of Federal Activities (OFA)
Office of Federal Facilities Enforcement (OFFE)
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 Wastewater Enforcement and Compliance (OWEC)
Office of Drinking Water (ODW)
Office of Wetlands, Oceans and Watersheds
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-
202-
202
202
202-
303'
260-4134
260-4137
260-4543
260-4540
260-2820
260-8180
260-3104
260-3050
260-8690
260-9660
260-4140
260-5053
260-9801
475-8780
236-5100
703-308-8600
202-260-2633
202-260-2479
202-260-5850
202-260-5543
202-260-7166
703-308-8404
202-260-4808
202-260-3807
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FY1991 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, 1L 60604
312-353-2072 FTS: 8-353-2072
Office of External Affairs
First Interstate Bank Tower at Fountain Place
1445 Ross Ave. 12th Floor Suite 1200
Dallas TX .75202
214-655-2200 FTS: 8-255-2200
Office of Public Affairs
726 Minnesota Avenue
Kansas City, KS 66101
913-551-7003 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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