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H1993 Enforcement Accomplishments Report
The FY1993 Enforcement Accomplishments Report was prepared by the Compliance
Evaluation Branch within the Office of Enforcement. Information contained in the
report was supplied by the EPA Regional Offices, Headquarters program offices
and the Office of Enforcement.
Printed on recycled paper
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X
FY1993 Enforcement Accomplishments Report CSffi^
Dedication to Paul G. Keough
The Fiscal Year 1993 EPA Enforcement Accomplishments Report is dedicated to
Paul G. Keough. Paul was the Acting Regional Administrator of EPA Region I in
New England at the time of his sudden death on January 17,1994. Paul served EPA
since its inception in 1971, and had held the position of Acting Regional
Administrator since January 1993. It was the third time he had served as Acting
Regional Administrator. Since 1983, Paul's official position was as the Deputy
Regional Administrator, and in that role he had lead responsibility for Region I's
enforcement programs.
With his background in journalism, Paul also was a national leader in EPA's
efforts to better communicate the successes of our enforcement program. He chaired
a national Agency workgroup on communications with the media during the late
1980's. Among other things, this workgroup recommended a major expansion of
the scope and distribution of the annual Enforcement Accomplishments Report.
EPA Administrator Carol Browner recognized Paul Keough's contributions to
EPA in her announcement of a national award in his name as follows: "Paul was
the toughest of defenders of the environment and EPA, fighting passionately for
what he believed to be the correct course of action."
Dedication of this Enforcement Accomplishments Report to Paul Keough
recognizes his national leadership in both enforcement and communications.
We are grateful for his efforts and we miss him very much.
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FY 1993 Enforcement Accomplishments Report
Table of Contents
I. FY 1993: Maintaining Enforcement Priorities
II. Environmental Enforcement Activity
III. 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.
CAA Enforcement Cases page 3-1
CWA Enforcement Cases page 3-9
MPRSA Enforcement Cases page 3-16
SDWA Enforcement Cases page 3-19
RCRA Enforcement Cases page 3-21
CERCLA Enforcement Cases page 3-31
TSCA Enforcement Cases page 3-53
EPCRA Enforcement Cases page 3-58
FIFRA Enforcement Cases page 3-63
Multi-media Enforcement Cases page 3-66
Federal Facility Cases page 3-71
Criminal Enforcement Cases page 3-73
IV. Federal Facilities Enforcement and Federal Activities
V. Building and Maintaining a Strong National Enforcement Program
Summaries of major enforcement program strategies, initiatives, guidance, and management studies.
Subsections on local enforcement, 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 1993 highlights.
Appendix:
Historical Enforcement Data
List of Penalties by Media
List of EPA Headquarters and Regional Enforcement Information
Contacts
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FY1993 Enforcement Accomplishments Report
I. FY 1993: Maintaining Enforcement Priorities
During FY 1993, EPA's enforcement program, in partnership with the
enforcement programs in each state and the Department of Justice, worked hard to
maintain its strong traditional, media-focused enforcement programs and assure
that violations of environmental rules and regulations were addressed swiftly and
in an appropriate manner. At the same time, EPA accelerated its implementation of
innovative multi-media, risk-based enforcement approaches to solving compliance
problems and environmental risks, approaches which are described in the
Enforcement Four-Year Strategic Plan and the Enforcement in the 1990's Project.
Two additional high priority areas for FY 1993 Agency enforcement were
environmental justice impacts and our international enforcement program.
The FY 1993 enforcement priorities for each of the Agency's traditional
enforcement programs are detailed in Section Three of this Report. In addition, that
section highlights significant enforcement cases supporting those priorities. Section
Two of this Report and the Appendix provide quantitative statistics on the
accomplishments of EPA's media-specific enforcement efforts; these data provide
strong evidence that the Agency continues to enforce environmental laws
forcefully.
During FY 1993, the Agency continued the expansion of the criminal program
under the Pollution Prosecution Act of 1990, increasing the number of field offices
and agents. Criminal sanctions resulting from the expansion in the capacity of our
criminal program provide a clear message to those engaged in criminal behavior
that those actions will not be tolerated. (For examples, see Section Three criminal
cases write-ups.) With increased authority also to assess penalties administratively,
the Agency continued to screen cases to ensure use of the appropriate mix of
administrative, civil judicial and criminal enforcement authorities to prosecute and
resolve violations. Civil enforcement continues to be the primary mechanism for
establishing program precedents and resolving complex technical issues. Civil
injunctive relief and administrative settlements compel industry to invest in
environmental cleanup, pollution controls, and new technology to mitigate
environmental damage resulting from noncompliance.
Innovative Enforcement Approaches
Major elements of the innovative enforcement approach which the Agency
continued to implement in FY 1993 are: targeting enforcement at sources and
pollutants of particular risk or compliance concern, or at geographic areas of
concern; multi-media compliance assessments and multi-media enforcement
responses; and developing settlements which include pollution prevention, waste
minimization and other innovative solutions to environmental problems.
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FF1993 Enforcement Accomplishments Report
Multi-media. Risk-based Enforcement Targeting
As part of its multi-media, risk-based strategy, beginning in FY 1991 the
Agency has emphasized annual national 'targeted' enforcement initiatives.
National enforcement initiatives can focus on specific pollutants, industries, and
sensitive geographic zones which present a national risk from the standpoints of
human health, the environment, and the maintenance of the integrity of agency
regulatory programs. This effort continued during FY 1992 when the Agency filed
nine benzene cases, prosecuted twenty-four previously filed lead cases, and filed a
total of sixty-four cases against the primary metals, pulp and paper, and industrial
organic chemical industries. These three industries were targeted on the bases of
toxic releases and historical noncompliance. These cases have resulted in significant
settlements in FY 1993, many of which are discussed in detail in Section Three.
During FY 1993, the agency commenced two additional two-year long
national initiatives. One, a Data Integrity/Data Quality initiative, focussed
principally on non-reporters and false reports of data that are required under
national and delegated programs. The goal is to send a positive, consistent message
to the regulated community on the importance to EPA and the states of obtaining
complete and accurate data to determine compliance and to assess environmental
progress. Each Agency enforcement office is participating in this effort
The second FY 1993 initiative is a comprehensive program to address multi-
media enforcement and compliance issues at federal facilities.. At least forty high
priority federal facilities across the all EPA regions are being inspected for multi-
media compliance. Selection of the facilities was based upon pre-established criteria
that include compliance history, EPA regional risk rankings, pollution prevention
opportunities, and compatibility with EPA national or regional/state program
priorities. States have been encouraged to participate in the inspections.
As part of the initiative process, EPA and states, to the extent possible,
"cluster" or group individual cases for filing. The purpose of case "clusters" is to
gain maximum deterrence through capturing the attention of the media and the
regulated community. EPA is analyzing the impact of completed initiatives to assess
"what works best and what doesn't work" so that future enforcement activity can be
carried out in the most efficient manner. As EPA expanded its use of initiatives and
case clusters, state participation in both the formulation and execution of these
activities is taking on added significance. The process for multi-media strategic
planning ensures that states are directly involved in the formulation of national
priorities and will have sufficient time to plan for this involvement. National
initiatives for FY 1994 and beyond will be identified in conjunction with a broad-
based multi-media team, including state representatives.
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FY1993 Enforcement Accomplishments Report
One of the major tools for identifying enforcement initiatives is the
agency's IDEA (Integrated Data for Enforcement Analysis) computer capability.
IDEA, which links the agency's compliance, toxic release inventory (TRI), and
geographic (GIS) data systems/ is used to screen and target single and multi-media
enforcement efforts. EPA has already demonstrated the IDEA capability to several
states and has worked to more widely deliver IDEA training to states.
Environmental Justice
A central tenet of our enforcement philosophy is that citizens receive full and
equal protection under our environmental laws and regulations, regardless of
race, nationality, or social standing. Environmental equity concerns are being
institutionalized as a core component of our enforcement program and throughout
the Agency as a whole in rulemaking. research, and policy.
The Agency has taken specific steps to ensure that the enforcement program
supports the health and welfare of minority populations. For example, the national
enforcement initiative to reduce lead exposure was implemented in large part
because of the understanding that lead is one of the most pervasive chemicals
impacting minority populations, especially children. Our Federal Facilities
Enforcement Program is beginning a comprehensive study of environmental equity
issues as they relate to pollution generated and emitted at federal facilities.
The EPA regional offices are taking specific enforcement actions to protect
minority populations. For example, Region II is performing a study of Superfund
enforcement at minority/low income communities using geographic information
system (GIS) mapping, and Region V implemented a geographic enforcement
initiative to reduce pollution exposure to Southeast Chicago residents and the
Wisconsin Native American Indian Tribes. Similarly, Region VI and Headquarters
are coordinating compliance and enforcement actions in a geographic initiative
targeted at the Mexican border area (in conjunction with Mexico), and Region IX has
implemented an enforcement initiative targeted for drinking water sources at
migrant farmworker camps.
Innovative Settlements
Over the last several years, the Agency has looked for ways to expand the
impact of enforcement settlements by securing additional environmental benefits
beyond that which can be required through injunctive relief. One of the major tools
used by the agency has been the use of Supplemental Environmental Projects (SEPs),
especially ones which emphasize pollution prevention and waste minimization.
Over the last two years, the inclusion of SEPs in settlements have increased
substantially and the environmental benefit resulting from them has indeed far
exceeded the benefits available through injunctive relief. A review of case
summaries in Section Three of this report will demonstrate the frequent use of
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FF 7995 Enforcement Accomplishments Report
these projects and illustrate their innovative solutions to solving pollution
problems.
As EPA looks for opportunities to promote pollution prevention and waste
minimization opportunities through enforcement, the Agency's Pollution
Prevention Senior Policy Council endorsed the delivery of more enforcement-
oriented pollution prevention training to legal and technical enforcement
personnel. This training emphasizes the types of pollution prevention technology
which are most appropriate to the types of facilities regulated by the media
programs and the types of violations encountered.
Transboundary International Enforcement
The point that pollution respects no national boundaries could not have been
more clearly made than in the debates over NAFTA, involving the United States,
Mexico, and Canada. Most of the discussions involved the Mexican Border area,
where the expected trans-border movement of hazardous substances, wastes, and
other materials regulated by both countries creates the need for expanded
cooperation in environmental enforcement. NAFTA contains a provision
recognizing the inappropriateness of encouraging investment by relaxing
environmental laws. A strong commitment by each country and its political
subdivisions to adequate enforcement of their respective environmental laws is the
key to ensuring that NAFTA does not result in such behavior. The United States
and Mexico have made mutual commitments to respond aggressively to
environmental problems along the U.S.-Mexican Border.
EPA and Mexico continued to expand their cooperative enforcement efforts in
FY 1993 by: working to improve tracking of environmental enforcement activity in
the Mexican border area by both countries; conducting joint training and
investigations aimed at criminal prosecution; and conducting expanded border
checks to detect transboundary shipment violations.
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FY1993 Enforcement Accomplishments Report
II. Environmental Enforcement Activity
A. Federal Judicial and Administrative Enforcement Activity
During FY 1993, EPA continued to implement the strategic approaches called for in the Agency's
Enforcement Four-Year Strategic Plan through through cross-program/multi-media and multi-facility
enforcement actions which seek to bring about comprehensive solutions to complex interrelated
environmental problems. With this perspective, EPA 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 alone. In FY 1993, EPA fully implemented modifications to its
activity counting methodologies that track and account for civil referral activity. These adjustments
were recommended by an Agency-wide workgroup rnd are intended to account for the greater magnitude
of cross-program/multi-media actions, and to remove any accounting-related disincentives to bringing
more complex cases.
EPA is also implementing other enforcement indicators that are intended to provide a more
complete and balanced picture of the quality and magnitude of its enforcement efforts. In this and other
sections of this report, more information is provided on EPA's use of Administrative Penalty Orders,
which are an effective complement to civil judicial enforcement tools, along with information on the
value of injunctive relief and Supplemental Environmental Projects, which complement information
reported on civil penalty assessments.
B. Federal Civil Judicial Enforcement
In FY 1993, EPA referred 338 civil judicial cases to the Department of Justice, down six percent
from FY 1992. Program-specific increases were recorded for the Clean Water Act and the Safe Drinking
Water Act, which when combined, increased 9% from FY 1992. Clean Air Act civil referrals declined by
12 cases, however, use of Clean Air Act Administrative Penalty Order (APO) authorities increased by
154 cases, an increase of 67% over the FY 1992 level. Agencywide, issuance of APOs increased by 180
cases from FY 1992, an increase of 12%. The Office of Enforcement expects that the trend toward greater
use of APO authorities will continue, and in the future the civil judicial referral and APO indicators
will need to be viewed together in assessments of civil enforcement activity levels.
400-/
300-
200-
100
Civil Judicial Referrals to DOJ Since FY1977
I WATER
TOXICS/
PESTICIDES
QlRCRA
ISUPERFUND HAIR
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FF1993 Enforcement Accomplishments Report
C. Monitoring Judicial Consent Decrees
The high levels of civil judicial enforcement activity over the last several years have resulted
in accompanying large increases in the number of consent decrees which the Agency has entered into
with violating facilities. EPA places high priority on ensuring that defendants live up to the
obligations assure that are spelled out in consent decrees. At the end of FY 1993, the Agency reported
that 968 active judicial consent decrees were in place and being actively monitored to ensure
compliance, an increase of 153 (up 18%) from FY 1992. Where noncompliance with 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 referred 18 cases to DOJ for enforcement of the consent decree
compared to 19 cases in FY 1992.
D. Federal Criminal Judicial Enforcement
EPA's criminal program established records in FY 1993 for several categories of activity. New
records included referring 140 cases to DOJ (the previous record was 107 in FY 1992), bringing charges
against 161 defendants (the previous record was 150 in FY 1992), and the number of months of jail time
defendants served with 876 months (the previous record was 744 months in FY 1992). Seventy-seven
criminal cases concluded during the year, in which 135 defendants were convicted. In addition, 57 of the
defendants convicted were sentenced to incarceration.
Incarceration and probation are key parts of the criminal program, including serving a strong
deterrent role. 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 429 years, and
1,261 years of probation have been imposed,
EPA's increased emphasis on the criminal enforcement program over the past five years,
coupled with passage and implementation of the Pollution Prosecution Act of 1990, has significantly
raised the profile of criminal enforcement both within EPA and in the regulated community. By the end
of FY 1993, EPA had increased the number of criminal agents to 110 compared to 47 in FY 1989. This
additional investment in agents has yielded significant increases in most of the key outputs of the
criminal program.
Criminal Enforcement Increases: FY 89 to FY 93JJ
FY 1989 FY 1990 FY 1991 FY 1992 FY 1993
Agents
Cases Initiated B Referrals D Defendants
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FY1993 Enforcement Accomplishments Report
E. Administrative Enforcement
EPA posted its third highest annual total for administrative enforcement activities in FY 1993
with 3,808 actions. The Agency record of 4,136 was set in FY 1989. The totals for FY 1993 demonstrate
that although judicial actions (both civil and criminal) have been the most visible indicators of EPA's
performance, other indicators need to be considered to fully ascertain EPA's effectiveness in enforcing
environmental laws and regulations. In recently enacted or reauthorized statutes, Congress has
expanded EPA's authority to use administrative enforcement mechanisms to address violations, compel
regulated facilities to achieve compliance, and assess penalties. Many of these administrative
authorities provide for injunctive relief and penalties that are comparable to those which can be
obtained through civil judicial enforcement. EPA programs issued 1,614 administrative penalty orders
(APOs) in FY 1993, an increase of 180 (12%) from FY 1992.
45(Xh
3600-
EPA Administrative Orders Since FY 1977
o
'77 78 '79 '80 '81 '82 '83 '84 '85 '86 '87 '88 '89 '90 '91 '92 '93
CAA
CWA/SDWA • RCRA
D CERCLA
HFRA
TSCA/EPCRA
F. EPA Contractor Listing
In FY 1993, fifty-seven 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, sub-grants 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) (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
corrected the conditions giving rise to the violations. Fifty-seven facilities were listed in FY 1992
based on criminal convictions. Nine facilities were removed from the List in FY 1993. Since FY 1986,
175 facilities have been placed on the mandatory list. One hundred eighteen facilities remained on
the List as of the end of FY 1993.
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
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FY1993 Enforcement Accomplishments Report
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 1PA or a state enforcement agency.
Facilities recommended for. discretionary listing have a right to an informal administrative
proceeding. In FY 1993, one proposed discretionary listing was settled. Also, the possibility of
discretionary listing helped to achieve settlements in numerous other civil enforcement cases.
G, Federal Penalty Assessments
Delaying or foregoing capital investment in pollution controls, as well as failure to provide
resources for annual pollution control operating expenditures, can allow undeserved economic benefits to
accrue to a regulated entity. As part of the effort to deter noncompliance, EPA's enforcement programs
have developed penalty policies designed to assess penalties which recover any economic benefit that
a noncomplying facility has realized, and assess additional penalties commensurate with the gravity
of the violation(s).
In FY 1993, $115.1 million in civil penalties were assessed, an all-time record ($85.9 million in
civil judicial penalties, a record, and $29.2 million in administrative penalties). The overall increase
was in part a result of a substantial increase in CERCLA § 104,106,107 penalties (from $6.7 million in
FY 1992 to $24.3 million in FY 1993). Since 1974, EPA has assessed $435.9 million in civil and judicial
penalties, with over sixty percent of this total being assessed in the last three years. Criminal fines
totaled $29.7 million in FY 1993. Since 1984, $139 million in fines have been levied in EPA criminal
cases.
In FY 1993, $22.9 million in dean Air Act civil penalties were assessed ($20.4 million for
stationary source violations and $2.5 million for mobile source violations); $27,8 million in Clean
Water Act penalties were assessed ($23.1 million in civil judicial penalties and $4.7 million in
administrative penalties); over $6.9 million in Toxic Substances Control Act penalties were assessed;
$22.8 million in Resource Conservation and Recovery Act penalties were assessed ($14.2 million in civil
judicial penalties and $8.6 million in administrative penalties); and $24.3 million in CERCLA civil
judicial penalties were assessed. The Federal Insecticide, Fungicide, and Rodenticide Act and Safe
Drinking Water Act programs are largely delegated to the States; however, EPA assessed $632
thousand, and $5.6 million, respectively, under these statutes. The Toxic Release Inventory program
assessed nearly $2.6 million. The Emergency Planning and Community Right-to-Know Act (EPCRA)
had $1.6 million in assessed penalties (including CERCLA §103).
c
M
"3
TJ
"8
a
o
160-
140
120
100
SO
60
40
20
0
Civil Judicial and Administrative Penalties
and Criminal Fines Assessed
a CRIMINAL
t
• ADMINISTRATIVE
• JUDICIAL
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FY1993 Enforcement Accomplishments Report
H. 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 1993, the States referred
690 civil cases to State Attorneys General and issued 11,881 administrative actions to violating
facilities. The major portion of State administrative actions occur in the FTFRA and water programs,
35% and 33% respectively. (Additional data on State administrative orders and referrals is contained
in the Appendix.)
State Administrative Orders: FY 86 to FY 93
FY93
FY92
FY91
FY90
FY89
FY88
FY87
FY86
2000
4000 6000 8000 10000 12000 14000
I FIFRA D WATER • AIR
IRCRA
State Judicial Referals: FY 86 - FY 93
FY93
FY92
FY91
FY'
FYI
FYi
FY87
FY86
0
200
400
600
800
1000
WATER DAIR
IRCRA
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FY 1993 Enforcement Accomplishments Report
I. Supplemental Environmental Projects
The analysis of FY 1993 settlement data indicated that the EPA regional offices negotiated 229
Supplemental Environmental Projects (SEPs). These SEPS, which had an estimated total value of
$73.8M, were negotiated in EPCRA, RCRA, CERCLA, TSCA, FIFRA, AHERA, OPA, CWA, SDWA,
stationary source CAA and multi-media cases. Forty-eight percent of the SEPs were in the category of
pollution reduction, and another 18% were in the category of pollution prevention. In addition to these
figures, the Nationally Managed Mobile Sources Air program negotiated an additional 62 SEPs, the
majority of which were in the Public Awareness category. More detailed information on SEPs can be
found in the FY 1993 National Penalty Report, which will be published separately,
J. Cross-Program/Multi-Media Enforcement and Targeted Enforcement Initiatives
While maintaining strong traditional enforcement programs, EPA stressed implementation of
the cross-program/multi-media perspective and use of targeted and innovative enforcement
approaches. The Agency's primary goal in implementing these approaches it to obtain additional
public health and environmental protection results, greater deterrence, and efficiency which might not
be achieved through use oif traditional approaches alone. Highlights of Regional performance in these
areas include:
» Cross-program/multi-media inspections and enforcement actions - The Regions implemented
the cross-prpgram/multi-media perspective through use of workgroups which targeted cross-
program/multi-media inspections, conducted case screening on single media enforcement cases, and
coordinated case management against facilities with cross-program violations. FY 1993 was the second
year for which the Agency has collected data on cross-program/multi-media activities, and the data
are very encouraging. In FY 1993, the Regions conducted 209 consolidated (simultaneous) cross-
program/multi-media inspections and 71 additional coordinated inspections (inspections conducted in
follow-up to concerns raised during an inspection by another program). In all, 858 individual program
compliance assessments occurred in these 280 inspections. During FY 1993, the Agency initiated 24 cross-
program/multi-media administrative enforcement actions, referred 12 multi-media judicial cases to
DOJ and completed 18 cross-program/multi-media settlements which grew out of a single media case.
In addition to these inspections the Regions reported conducting 2700 single-median inspections using a
multi-media inspection checklist.
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FY1993 Enforcement Accomplishments Report
III. Major Enforcement Litigation
and Key Legal Precedents -
Protecting Public Health and
• the Environment through .
Enforcement
This chapter provides highlights of
major environmental litigation in FY 1993. These
cases support EPA and state enforcement
priorities and demonstrate innovative
approaches in the enforcement process. FY 1993
was an exciting and challenging year for EPA's
and the states' enforcement efforts. EPA
continued implementation of the new
enforcement approaches, described in the
Agency's Enforcement Four-Year Strategic Plan
and 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.
Clean Air Act Enforcement
Stationary Sources
The 1990 Clean Air Act (CAA)
amendments generally expanded EPA's
enforcement authorities and tools, providing for
a more flexible enforcement program. For
example, in May 1992, the program undertook a
coordinated nationwide filing of fifty-two CAA
administrative penalty cases under the new
authorities granted by the act. These cases
covered a variety of regulations, including new
requirements for continuous emissions monitoring
equipment at petroleum refineries, benzene and
uranium mining waste piles, and state standards
for smoke density and airborne particle emission.
The 1990 amendments also expanded contractor
listing sanctions, authorized a. new field
citations program and tougher criminal
enforcement provisions, and provided for citizen
suits. In addition, the CAA necessitated
implementation of the revised Significant
Violator/Timely and Appropriate Guidance,
which applies to all major sources as defined by
the amendments. The air program continues to
place high priority on supporting
implementation of the guidance.
In FY 1993, the program's general
compliance monitoring and enforcement efforts
continued to place high priority upon
implementation of the 1990 amendments. The
program, working with the states, also
emphasized the compliance of sources with
State Implementation Plans (SIPs), New Source
Performance Standards (NSPS), and the
National Emissions Standards for Hazardous
Air Pollutants (NESHAP) and compliance with
the dry cleaning rule, permits enforceability
review under Title V, and the benzene
wastewater rule. The program maintains an
active effort to implement the requirements of
the Montreal Protocol to protect stratospheric
ozone. Enforcement actions were taken against
persons who import CFCs without first obtaining
the allowances necessary to ensure that overall
U.S. consumption of these chemicals does not
exceed the limits imposed by the protocols.
The air program continues to focus
enforcement activity on criteria pollutants. It
also emphasized compliance for pollutants
specific to certain industries and geographic
areas that, pose the greatest health and
ecological risk. For example, the program has
previously implemented lead and benzene
NESHAP initiatives and will continue to target
for violations involving asbestos and vinyl
chloride. As part of the geographic initiatives
for the Mexican Border area, the program
emphasizes compliance with air quality
standards for ozone, PM-10, and carbon monoxide.
The program also emphasizes compliance with
volatile organic compound limitations in ozone
nonattainment areas.
With passage of the 1990 Clean Air Act
amendment, the air program will be developing
a host of new rules that are heavily dependent
on data accuracy and integrity (e.g., enhanced
monitoring, continuous emission monitoring,
hazardous air pollutants). As part of the FY 1993
National Data Quality Initiative, the air
program ensured the quality of air emission
reports submitted by stationary sources to
regional, state, and local air agencies, and
compliance with emission monitor certification
requirements.
In the Matter of; Applied Magnetics Corporation:
On July 22,1993, Applied Magnetics agreed to pay
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SB)
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FF /99J Enforcement Accomplishments Report
a civil penalty of $67,525 resolving EPA's first
administrative enforcement action initiated to
address violations of CAA requirements governing
the importation of chlorofluorocarbons (CFCs).
The CFC regulations help protect the
stratospheric ozone layer and are an important
element of the U.S. government's implementation
of the Montreal Protocol on Substances that
Deplete the Ozone Layer.
Archer Rubber Company (D.Mass.): On October
12, 1993, the U.S. District Court approved a
settlement between EPA and Archer Rubber
Company of Milford, Massachusetts settling an
action initiated by EPA in July 1990 alleging
violations of §113 of the CAA and the
Massachusetts State Implementation Plan (SIP).
EPA's complaint alleged violations at Archer's
Milford facility since 1985 involving uncontrolled
emissions of volatile organic compounds (VOCs)
from the company's fabric surface coating
operations. Under the settlement, Archer is
obligated to, among other things: (1) pay a
$200,000 penalty; (2) install, test and operate
VOC capture and control equipment in compliance
with the SIP; (3) keep extensive written records
concerning VOC emissions and the use of emission
controls; (4) report to EPA on a quarterly basis;
and (5) pay significant stipulated penalties for
each day of each violation of the consent decree
terms. The settlement allows Archer to admit no
liability for the alleged violations.
Under the settlement, EPA agreed to withdraw a
contractor listing action against Archer, under
§306 of the CAA, based on Archer's record of
continuing or recurring noncompliance with clean
air standards and on prior EPA enforcement
actions taken against the company. While
agreeing to withdraw the listing action, EPA
expressly reserves the right to initiate a second
listing action in the event of any future violation
. by Archer of the CAA, the SIP, or the consent
decree.
U.S. v. Bethlehem Steel e^jd, JLjckwanna^ New
XfirJi: On September 7, 1993, the United States
entered into a settlement with Bethlehem Steel
and several asbestos contractors in which these
companies agreed to pay a civil penalty of
$560,000, the largest penalty ever collected for
violations of the asbestos NESHAP. The consent
decree requires Bethlehem and the contractors to
implement asbestos abatement programs to ensure
all future asbestos removal operations follow the
requirements of the asbestos NESHAP. One of
the abatement contractors, Safe Air
Environmental Group (now defunct) and its
president, James Long, were convicted in 1992 of
criminal violations in connection with their
work at mis Bethlehem Steel facility.
U.S. v. B.F. Goodrich {W.D. Kent,); On September
13, 1993, the court entered a consent decree
resolving a CAA civil enforcement action against
B.F. Goodrich for violations of the benzene and
mercury NESHAPs at Goodrich's plant in Calvert
City, Kentucky. Goodrich agreed to pay a civil
penalty of $160,000, implement an
environmentally beneficial project to reduce
mercury emissions beyond the NESHAP
requirement, and conduct environmental audits at
several of its facilities.
U.S. v. City of Chicago, ct al.. (N.D. III.); On
February 16,1993, the court, after a trial, found
Coif ax liable on all of the 11 CAA violations
alleged in the complaint. The court also found
Metropolitan Structures liable for all nine
violations alleged at the two sites which it
owned. The penalty, assessed against Colfax was
$95,000 and against Metropolitan Structures was
$20,000, for a total of $115,000,
U.S. v. Consolidated Edison Company (E.D.N.Y.):
The complaint • in this action, filed in 1988,
charged that asbestos had been removed from Con
Ed facilities in New York City in violation of the
CAA, including both failure to notify and work
practice infractions. After extensive litigation
involving, inter a 1 i a. numerous depositions and
summary judgment motions from both parties, the
case was resolved with Con Ed's agreement to pay
$219,500. The consent decree was entered by the
court on October 7,1993.
U.S. v. Consolidated Rail Corporation (N.D.
Ohio): On October 14, 1992, the U.S. District
Court entered a Second Amendment to Consent
Order resolving EPA's CAA contempt action
against Consolidated Rail Corporation (Conrail).
The amendment requires Conrail to pay $165,000
in penalties for its past violations. In addition, it
allows the company to apply encrusting agents in
lieu of water to control fugitive dust.
EPA and Conrail had negotiated a consent order in
1986 which resolved violations of Ohio's CAA
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SIP at the company's Ashtabula, Ohio coal
facility. Among the consent order provisions was
a requirement that Conrail utilize a water
spraying system to suppress fugitive dust
emissions from its coal piles. In 1988, the Agency
filed a Motion to Enforce the Consent Order, citing
Conrail's failure to comply with the order's
watering requirements on more than 200 days.
Coors Brewing Company. Inc. (Elkton. VA): On
August 10, 1993, Coors Brewing Company, Inc.
executed a consent. decree with EPA, which
requires Coors to pay a civil penalty of $245,000.
The decree resolved violations of the Prevention
of Significant Deterioration (PSD) regulations
under the CAA that require a valid PSD permit
before construction commences on a new major
stationary source. In March 1981, EPA Region III
issued Coors a PSD permit for the construction of a
10 million barrel-per-year brewery. The permit
was reissued and extended on numerous occasions
by the State, who required, as a condition of the
extension, that Coors complete a new PSD review
prior to initiating construction of the brewery.
However, Coors initiated construction of certain
brewery elements without meeting the terms and
conditions of its PSD permit extensions. The
consent decree requires Coors to send a letter to the
Virginia Department of Environmental Quality
and EPA certifying that it has abandoned plans to
construct the brewery as a major stationary source,
as defined under PSD regulations, for a five-year
period. As a result, Coors now proposes to use
natural gas instead of coal as its boiler fuel, and
will relinquish all rights it now has to available
Shenandoah Park class I sulfur dioxide
increments, held solely by Coors for over 12 years.
U.S. v. Crown. Cork & Seal Company
(N.D.Miss.): On September 30, 1993, the U.S.
Attorney filed a consent decree in settlement of
EPA's pending enforcement action against Crown
Cork and Seal Company, Inc. (Crown) for CAA
violations. On or about June 1987, Crown
commenced operations of a new two-piece can
coating facility in Batesville, Mississippi,
without first obtaining a PSD permit or testing
and reporting pursuant to requirements of the
CAA. Under this decree, Crown will pay
$343,000 for PSD and NSPS violations.
In addition to the penalty, Crown agreed to
perform three supplemental environmental
projects (SEPs) valued at more than $2,000,000,
after tax. These SEPs consist of the following: a
new regenerative incinerator at the Batesville
plant to further reduce VOC emissions below
legal requirements; a pilot project at Crown's
Cheraw, South Carolina facility to test the use of
a bio-filter to control VOC emissions; and a
management environmental awareness training
program for Crown's corporate managers and for
managers at all Crown can coating facilities in
the United States.
U.S. v. Enterprise Products Company. (S.D. Tex.:)
On August 25, 1993, the court entered a consent
decree settling the CAA civil penalty action
against Enterprise Products Company. On August
30, 1993, Enterprise paid a civil penalty in the
amount of $86,000 to resolve NSPS violations at
its Mont Belvieu, Texas storage facility. The
violations occurred due to the release into the
atmosphere of unauthorized amounts of natural
gasoline vapor from a storage vessel. The vapor
recovery system that had been installed was
insufficient to collect and/or process all volatile
organic compound vapors and gases discharged
from the storage vessel.
Idaho Panhandle Wood Products Initiative:
During fiscal year 1993, Region X completed a
two-year enforcement initiative in Northern
Idaho ("Idaho panhandle"). The shift of wood
product operations from the coast of Washington
and Oregon to Northern Idaho has resulted in
increased production at existing facilities and the
startup of many new facilities. Since the State
of Idaho had limited resources to inspect this
large universe of major stationary sources, EPA
agreed to conduct field inspections of 25 wood
products facilities in the Idaho panhandle. As a
result of violations documented during these
inspections, Region X issued nine administrative
penalty actions and made two referrals to the
DOJ (one involves a Louisiana-Pacific facility,
included in the national settlement discussed
below). In addition to substantial penalties, the
settlements included both extensive injunctive
relief provisions and supplemental environmental
projects requiring reduced emissions through
improved operations, better maintenance,
installation of continuous emission monitors, and
source testing. These provisions are expected to
reduce emissions of particulate matter by 1,398
tons per year and volatile organic compounds by
239 tons per year.
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FY1993 Enforcement Accomplishments Report
U.S. v. Kimmins Environmental Services. Ir^c,
(M.D. Fl.)t On December 7,1992, the court entered
a consent decree to settle an action against
Kimmins Contracting Corporation for violations
of the asbestos NESHAP demolition and
renovation regulations. Under the decree,
Kimmins agreed to pay a $25,000 penalty and to
develop both Asbestos Control and Asbestos
Training Programs. On December 5,1988, Kimmins
had removed asbestos pipe insulation from a
phosphorus and sulfuric acid plant, later owned
by U.S. Agri-Chemicals Corporation in Polk
County, Florida, prior to demolition of the
facility. Kimmins failed to give at least ten days
notice to the proper agency prior to
commencement, and had failed to keep the
asbestos insulation wet during stripping, as
required under 40 C.F.R. § 61.147(d).
In re La Roche Chemicals. Inc.; Under the terms of
a consent agreement and consent order filed. July
30, 1993, LaRoche Chemicals of Gramercy,
Louisiana, agreed to pay a $25,000 civil penalty
and expend an additional $158,400 to purchase,
install and operate equipment for recovery of
residual chlorofluorocarbons (CFCs) in used
cylinders returned by customers. Recovery of
tftese CFC residues will reduce the amount of
CFCs released into the atmosphere by an
estimated 50,000 pounds per year more than
current regulatory requirements. This agreement
resolved CAA violations by LaRoche for
facilities utilizing asbestos during manufacturing
processes. EPA accepted the company's proposal
to reduce CFC releases in lieu of paying
additional sums to resolve violations of the
unrelated asbestos rules.
U.S. v. Louisiana-Pacific Corporation and Kirby
Forest Industries. Inc. (W.D. La.): The penalty in
this case represents the largest CAA civil
penalty ever collected by EPA, and the second
largest penalty recovered under any
environmental statute. Under the terms of a
consent decree entered on September 30, 1993,
Louisiana-Pacific (LP) was required to pay an
$11.1 million civil penalty and to install state-of-
the-art pollution control equipment, valued at
approximately $70 million, in eleven of its
facilities, Louisiana-Pacific also agreed to
implement an extensive CAA compliance program
including: compliance and management audits;
obtaining PSD or NSR permits; complying with
existing state permits; installing enhanced
monitoring equipment at 11 facilities; and
maintaining records and reporting to the
government as required under the CAA.
On May 24, 1993, EPA Administrator Carol
Browner and Attorney General Janet Reno held a
joint press conference announcing settlement of this
action which involved numerous violations of
SIPs, PSD, NSR, and state permit requirements at
fourteen of LP's wood panel facilities located.in
eleven states. The Administrator and the
Attorney General stressed the Agency enforcement
themes which were addressed in this national
case, including: the environmental benefits and
deterrent effect of the settlement; data and PSD
program integrity; advancing the pollution
control technology used in an industry; and
federal-state cooperation in coordinating a
nationally managed enforcement action.
U.S. v. Midwest Suspension and Brake (E.D. Mi.)
On June 16,1993, the court ordered the defendant
in this civil judicial enforcement action to pay a
civil penalty of $50,000 for violations of the
asbestos NESHAP at its brake refurbishing plant.
The court's opinion clarified key terms under the
asbestos NESHAP. The court opined that a
"visible emissions" violation must be proven
without the aid of instruments and that
circumstantial evidence is sufficient to establish
the violation. In determining the appropriate
civil penalty, the court followed a 1992 CAA
holding that, when calculating civil penalties
under §113 of the CAA, a court must start by
imposing the statutory maximum penalty and
then must apply the appropriate penalty
assessment criteria to determine if penalty
mitigation is justified.
U.S. v. Mobil Oil Corporation (E.D. Ca.): On
February 4, 1993, the court entered a consent
decree ordering Mobil Oil Corporation to pay a
civil penalty of $950,000, the second largest
penalty levied by EPA for CAA violations in
California. In its complaint, the government
alleged that between November 1983 and
December 1985, Mobil violated the CAA at its
polystyrene foam manufacturing facility. The
complaint charged that Mobil had emitted more
isopentane, a volatile organic compound that is a
precursor to ground level ozone pollution, than
was permitted by Kern County Air Pollution
Control District Rule 414.4, which is part of the
federally enforceable SIP for California.
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v.
January 20, 1993, a consent decree was entered
resolving this case. Under the decree, Nabisco is
enjoined from further violations of the CAA and
will pay $358,000 in civil penalties. The decree
also requires Nabisco to retrofit new catalytic
incinerators onto the manifolded stacks of its
primary baking ovens and then perform stack
testing after receiving a permit and protocol
approval from the State. Nabisco's facility
produces baked leavened products for the
wholesale market. While making its bread
products, the facility was emitting ethyl alcohol,
a volatile organic substance which is a precursor
to the formation of ozone, in excess of applicable
emission requirements.
U.S. v. New York City (S,D. N.Y.): On April 22,
1993, a consent decree was entered in this case
which involves gasoline dispensing stations
leased and /or operated by the City of New York.
There are over 300 such stations at sites
throughout the City's five boroughs.
Approximately 55 of these facilities were not
equipped with Stage I and/or Stage II vapor
collection systems as required by the New York
SIP. The consent decree requires the City to
award contracts to construction managers who
will in turn provide enforceable work schedules to
bring all of the affected facilities into
compliance. The settlement also requires the City
to complete an extensive capital improvement
work program, with stipulated penalties for
failure to complete work on schedule; and the
decree requires the City to pay $200,000 in civil
penalties.
IJ,g, yt .Mew York City Board of Education, ctjLj
(E.D.N.Y.): On various dates during 1993, judicial
consent decrees were lodged with respect to the
Board of Education and two of the seven asbestos
abatement contractors which are defendants in
this multi-party action. Defendants were
charged with violating EPA's asbestos
"notification" rule, which forms an integral part
of the NESHAPs regulations. The action serves
notice on the regulated community that the
notification rule is essential to the integrity of
these regulations and will be strictly enforced. As
part of a nationwide EPA asbestos enforcement
initiative, a complaint was filed against the
Board of Education and seven contractors for
failure to notify EPA of renovations involving
asbestos removal in many City schools.
£» (D.NY): On Approximately 126 such failures were at issue in
this case. These consent decrees finalize
settlements with the Board, as owner, for all
violations, and with two of the asbestos
abatement contractors involved in the violations,
Jack's Insulation and Philson Painting Co. The
combined penalties provided for in these decrees,
and in several others for which consent decrees
have been negotiated but not yet lodged/total
$175,000.
In re Placid Refining Company. Port Allen, La.; to
re Conoco. Westtake, La: As part of a hydrogen
sulfide monitoring initiative, Region VI signed
two consent agreement/consent orders (CACO)
during June 1993, concluding administrative
enforcement complaints against Placid Refining
Company (Placid) of Port Allen, Louisiana and
Conoco of Westlake, Louisiana. These two
agreements required penalties of $68,000 and
$60,000 respectively. EPA had alleged that
Placid violated NSPS rules by failing to conduct a
performance evaluation of a hydrogen sulfide
continuous emission monitor (CEM) in a timely
manner as required. Conoco was alleged to have
failed to install a hydrogen sulfide CEM and also
failed to conduct the performance evaluation.
The rules requiring petroleum refineries to install
and certify hydrogen sulfide CEMS on their fuel
gas systems were promulgated on October 2,1990,
and became effective 12 months later. Both
complaints were filed as part of a national
initiative to enforce the new hydrogen sulfide
monitoring requirements of NSPS Subpart J.
Republic Industries. Inc.? On September 27,1993,
EPA Region IV filed a consent agreement settling
an administrative asbestos NESHAP case against
Republic Industries, Inc. for $32,824.
Republic is an asbestos abatement company that
conducted asbestos renovation projects at the
Marine Corps Recruit Depot on Parris Island, S.C.
and at the Inbordan Elementary School in
Enfield, N.C., in August 1991. EPA inspections
revealed that Republic had failed to adequately
wet asbestos-containing material (ACM) at both
sites and failed to properly label containers of
asbestos-containing waste material at the Parris
Island site, in violation of the CAA asbestos
NESHAP regulations.
Shenanago, Inc; The consent decree in this CAA
case is the first to have the new dispute
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FF1993 Enforcement Accomplishments Report
resolution section patterned after the dispute
resolutions used in RCRA decrees. Shenanago, Inc.
will pay $540,000 and install innovative
desulfurization control technology at it Neville
Island Coke Plant. The consent decree, which was
entered on August 24, 1993, had been lodged
against Shenango in response to violations of its
1980 and 1987 consent decrees. As part of the
decree, Shenango must undertake specified
remedial actions, one of which is the installation
of an innovative desulfurization process, which
has been successfully employed in the petroleum
industry to desulfurize gas to very low levels.
Shenango was also placed on an schedule to study
the transferability of this process technology.
EPA believes that this process holds promise for
the steel industry and, if successfully transferred,
is likely to establish a new LAER standard for
desulfurization plants.
Texas Instruments, Inc.; On July 23, 1993, EPA
entered into a consent agreement with Texas
Instruments, Inc. of Attleboro, Massachusetts for
violations of several NSPS provisions applicable
to small boilers. The company engages in the
manufacture of various pressure bonded metal
products. Texas Instruments also operates a
utility plant which houses six boilers. In January
of 1992, Texas Instruments began operating a new
boiler. On January 26, 1993, EPA issued an
administrative penalty order to Texas Instruments
for notification, performance testing, and
reporting violations.
The case was settled for $49,900 and an agreement
by Texas Instruments to perform a supplemental
environmental project in which Texas Instruments
will replace a vapor degreaser unit, which emits
approximately 6,800 pounds per year of Freon-113,
an ozone depleting chemical, with a closed-loop,
zero-emissions degreaser unit. The project will
cost Texas Instruments over $170,000, and is the
first application of this technology to the metal
finishing industry.
Watson Electrical Construction Co.: On August 16,
1993, EPA settled a case against Watson Electrical
Construction Company with a penalty of $30,107,
the largest penalty to date received by EPA for
violations of §608 of the CAA. EPA initiated the
action against Watson as part of the Agency's
initial effort to enforce the new stratospheric
ozone protection requirements established by the
CAA of 1990. Watson is a large electrical and air-
conditioning service contractor with offices
located throughout North Carolina and Virginia.
EPA discovered that Watson had done service
work on air-conditioners in a manner which
violated the stratospheric ozone protection
requirements. The violations consisted of failure
to use refrigerant capture equipment to prevent
chlorofluorocarbons (CFCs) from being released to
the atmosphere.
U.S. v. World Color Press. Inc. (S.D. 111.); On
December 5, 1992, the court entered a consent
decree against World Color Press, Inc. for CAA
violations at three facilities in southern Illinois.
The decree requires World Color to pay a civil
penalty of $500,000, perform stack tests and
install afterburner systems to control emissions of
volatile organic compounds at its two remaining
facilities. (The company closed its Mt Vemon
facility in March 1991.) In addition, World Color
agreed to maintain compliance with its permits,
demonstrate continued compliance through
various monitoring and reporting, and pay
stipulated penalties for violations of the consent
decree.
EPA action in this matter had begun in February
1991 with a complaint alleging that World Color
had violated the CAA and regulations governing
the prevention of significant deterioration of air
quality. The company had allegedly failed to
obtain permits for the construction of eleven
printing presses at two facilities and failed to
install pollution control equipment pursuant to a
PSD permit at a third facility.
Clean Air Act Enforcement
Mobile Source Program
For mobile sources, EPA increased efforts
to control emissions from motor vehicles and
vehicle fuels under the new Clean Air Act
amendments, EPA wilt promulgate new
compliance regulations for reformulated fuels,
will promulgate regulations requiring detergents
in gasoline, and began implementing and
enforcing regulations (effective October I, 1993)
which will control the amount of sulfur in diesel
fuel. In addition, EPA enforces the volatility
standards for gasoline as well as the anti-
tampering and defeat device prohibitions. The
amended act also provided administrative
enforcement authority which EPA has begun to
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implement. EPA also continued existing
enforcement programs such as the recall program
(which results in the recall and repair of
emissions systems of about one third of all new
vehicles) and will initiate a compliance
program for heavy duty engines.
Lead Phasedown Cases
U.S. v. CENEX (D.Minn.): In November 1992,
the U.S. District Court entered a civil consent
decree in which Farmers Union Central
Exchange,' Inc. ("CENEX"), a refinery located
in Montana, agreed to pay $571,000 for multiple
violations of the lead phasedown regulations.
The purpose of these regulations is to reduce
ambient lead levels. Airborne lead has been
found to interfere with normal mental
functioning arid synthesis of blood hemoglobin.
The penalty approximates the actual economic
benefit realized by CENEX1 s from the illegal
lead transactions, as adjusted for interest and
taxes from December 1987 to the present.
Volatility and other Fuel Cases
Keystone Terminal Operating Corporation (E,D,
Pa): On February 12, 1993J the court entered a
consent decree requiring Keystone Terminal
.Operating Corporation to pay $12,500 for
multiple violations of the volatility
regulations and $1,000 for refusal to allow EPA
inspectors entry to inspect its premises.
Gas City. Ltd.: In May, 1993, EPA settled a
major enforcement action against Gas City for
extensive violations of §211 of the CAA. The
settlement requires Gas City, a Frankfort,
Illinois gasoline blender and retailer, to pay a
$450,000 penalty, the largest penalty collected
by EPA for violations of this nature.
An EPA investigation during 1991 and 1992
revealed that Gas City blended nearly 1.6
million gallons of methanol with unleaded
gasoline, at concentrations in excess of federal
limits, for sale at various Gas City retail
outlets located in Chicago, Illinois and Gary,
Indiana. Excess methanol can damage emission
control components in vehicles not designed for
methanol. By using inexpensive methanol to
dilute gasoline, Gas City realized an economic
benefit of over $300,000. EPA increased the
amount it was willing to settle for when it was
discovered that Gas City continued to blend
methanol gasoline in violation after EPA had
notified it of the violation. The investigation
further revealed that Gas City had sold, or
offered for sale, gasoline in violation of the
volatility regulations which limit summertime
fuel volatility (a measure of a liquid's
evaporative characteristics) to reduce urban
smog levels. Finally, Gas City was found to
have violated several requirements of the
unleaded gasoline regulations, which are
designed to ensure that unleaded vehicles are
not misfueled with gasoline containing lead,
thereby deactivating catalytic converters.
U.S. v. All Virani d/b/a Pit Stop (S.D. Texash On
October 7, 1993, the court entered a civil
consent decree in which AH Virani d/b/a Pit
Stop, an unbranded retail gasoline station in
Galveston, Texas, agreed to pay $6,000 for a
violation of the volatility regulations. Random
inspections of retail outlets in the Galveston,
Texas area in August 1989 revealed that Pit
Stop was selling gasoline that exceeded the
95 pounds per square inch standard applicable
in Galveston at the time. AH Virani's attempt
to deny ownership of the retail outlet during
the time of the inspection was thwarted after
EPA discovered he had paid for a food service
permit application with a personal check before
the inspection.
Fuel Misdelivery Initiative
As a result of inspections in and
around various ozone nqnattainment areas during
the 1992 volatility control season, EPA
discovered extensive misdeliveries of high
RVP gasoline into nonattainment areas requiring
low RVP gasoline. Further investigations
revealed that certain regulated parties
upstream of those that actually made the
deliveries, either had knowledge of the
deliveries or had information available that
provided them with a reason to know that
such deliveries had occurred. Consequently,
during FY 1993, EPA issued 24 NOVs, with
proposed penalties totaling, nearly one million
dollars, to these parties as well as to those
more directly involved in the actual
misdeliveries. These enforcement actions
generated significant attention by those cited for
the violations and other regulated parties,
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many of which have subsequently instituted
more aggressive monitoring and quality control
programs to prevent and remedy such
violations. Similar violations were not
discovered during the 1993 volatility control
season due, in part, to EPA's aggressive
enforcement.
Aftermarket Catalytic Converter Policy
Cases
U.S. v. Cole Muffler. Inc. (N.D. New York): In
January 1993, Cole Muffler entered into a
settlement with the EPA agreeing to pay
$238,000 for its violation of the tampering
prohibition of the Clean Air Act. This is the
largest penalty ever awarded for a violation of
this nature. Cole Muffler, Inc., a New York
corporation with 51 muffler shops in New York,
Pennsylvania and Florida, incorrectly installed
aftermarket catalytic converters on at least
3,160 vehicles. The converter is the most
effective emission control component on motor
vehicles. Misapplications can dramatically
increase a vehicle's emissions of hydrocarbons,
nitrogen oxides and carbon monoxide. The
violations were discovered upon a routine
review of warranty cards submitted by repair
shops to catalytic converter manufacturers.
In addition, the settlement requires Cole Muffler
to pay stipulated penalties for certain future
violations if they occur and file quarterly reports
with the EPA for each and every catalytic
converter installation over the next two years.
Benny's Pipe and Muffler Shop (E.D. Term.): On
September 7, 1993, EPA won a partial summary
judgment against Benny's Pipe and Muffler
Shop, Inc. ("Benny's") on the issue of Benny's
liability for at least 43 violations of the
tampering prohibition of the CAA. Benny's, a
corporation with four repair shops in the
Bristol, Tennessee area, violated the Act by
installing aftermarket catalytic converters on
vehicles with converters still under the
manufacturer's 5 year/50,000 mile warranty
and/or by installing two-way catalytic
converters on vehicles which required three-
way catalytic converters.
The decision was significant because it was the
first judicial opinion stating that installation
of an aftermarket catalytic converter on a
warranty eligible vehicle violates the
tampering prohibition.
y_.j»t v, lamqs A. Lgocfogt a]. (E.D. California):
On September 16, 1993, the court entered a
default judgment ordering James A. Loock, doing
business as Muffler Man, to pay a $12,500 civil
penalty for five violations of the tampering
prohibition of the CAA. Muffler Man, an
automobile repair business, installed two-way
catalytic converters on five vehicles requiring
three-way catalytic converters. Such
installations are prohibited because they
increase emissions of nitrogen oxides which are
major contributors to urban smog and acid rain.
The violations were discovered upon a routine
review of warranty cards submitted by repair
shops to catalytic converter manufacturers.
Muffler Man filed a motion to set aside the
default. In response, the U.S. alleged that
Muffler Man's motion contained fabricated
evidence and constituted a fraud upon the court.
An EPA attorney discovered, in researching
Muffler Man's claim that it had submitted
numerous documents to EPA during the settlement
process by certified mail, that the green
certified mail slips attached to these documents
had not been printed by the U.S. Postal
Service at the time that Muffler Man had
sworn they had mailed these documents. The
court denied Muffler Man's motion holding that
it had not rebutted the government's initial
allegations or subsequent allegations of fraud.
Tampering Cases
Leith Jeep-Eagle. Inc. (E.D. N.C.): On June 21,
1993, the court entered a civil consent decree in
which Leith Jeep-Eagle, Inc. (Leith) agreed to
pay $15,000 for three, violations of the tampering
prohibition of the CAA. Leith, a new car dealer
in Raleigh, North Carolina, violated the Act by
plugging the vacuum hoses to the exhaust gas
recirculation ("EGR") valve on three motor
vehicles. An EGR valve recirculates exhaust
gases thereby reducing a vehicles emissions of
nitrogen oxides. The violations were discovered
during an EPA inspection on January 31, 1990,
made as a follow-up to a customer complaint.
In addition to the penalty, the settlement
requires Leith to implement a comprehensive
recall program which includes the distribution
of a "recall letter" to certain customers of
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Leith and an agreement to repair all plugged
EGR systems which are brought in by those
customers at no charge. The recall program is
expected to cost more 'than $15,000.
Defeat Device Cases
MSA Manufacturing Company. Inc.? On August
27, 1993, the U.S. District Court entered a
consent decree requiring MSA Manufacturing
Company, Inc. to pay $28,500 for manufacturing
and installing catalytic converter replacement
pipes. This was the first enforcement action
undertaken pursuant to the defeat device
provisions of the CAA Amendments of 1990.
In addition to the penalty, the decree
prohibits MSA from manufacturing, selling,
trading, or otherwise supplying test pipes. The
decree further requires MSA to issue a recall
letter to all customers who purchased test
pipes on or after the effective date of the
defeat device provision (November 15, 1990),
through the date of entry of the decree.
Finally, the decree prohibits MSA from
referring to test pipes in its advertising or
sales-related documents.
Eckler industries. Inc.; On December 16, 1992,
Eckler Industries, Inc. entered into a settlement
agreement with EPA requiring it to pay $30,000
for selling or offering to sell 49 catalytic
converter replacement pipes and mufflers in
violation of the defeat device provision of the
Clean Air Act. The violations, which occurred
throughout the U.S., were discovered during a
directed inspection. This was one of the first
administrative actions taken for violations of
the defeat device provision added by the CAA
Amendments of 1990.
Other cases
Caterpillar. Inc.: On February 2, 1993, EPA
entered into a settlement agreement with
Caterpillar, Inc., (Cat) in which Cat agreed to
pay a penalty of $220,500 for violations of the
Clean Air Act. Cat also agreed to perform a
recall program yielding a 76 percent response
rate, with costs to Cat estimated at $370,400.
The penalty arose out of Cat's introduction into
commerce of three hundred ninety-seven 1991
model year heavy-duty engines which were not
covered by a certificate of conformity and Cat's
failure to report changes made to the engines
during production.
An investigation of the violations began during a
heavy-duty Selective Enforcement Audit (SEA).
SEAs are routinely conducted by EPA on
production line engines and vehicles to determine
whether these engines and vehicles comply with
federal emission requirements. While conducting
an SEA at Cat's engine assembly plant, EPA
discovered that the engines subject to testing were
not manufactured according to the design
specifications in the application for certification
submitted to EPA.
Chrysler Corporation: On July 14,1993, EPA and
Chrysler Corporation signed a settlement
agreement In which Chrysler agreed to pay
$51,200 in civil penalties. The settlement
agreement resolved 16 separate violations which
were the result of Chrysler's introduction into
commerce of sixteen Dodge Daytonas that did not
meet EPA's motor vehicle emission requirements.
Clean Water Act Enforcement
In FY 1993, the Clean Water Act (CWA)
NPDES permit program, regulating direct and
indirect point source discharges to the nation's
navigable waters, continued to focus
enforcement efforts on human health and
ecological risk from significant noncompliers.
The program continued civil judicial and
administrative penalty actions against both
municipalities and industry to reduce significant
noncompliance with pretreatmeni requirements,
This effort builds on pretreatment enforcement
initiatives against municipalities initiated in
October 1989, and against both industries and
municipalities begun in May 1991 and in October
1992. EPA and the states continued to build
municipal facilities' capacity to enforce against
Industrial Users (Ills). However, where there is
an approved program and the Publicly Owned
Treatment Works (POTW) has not taken all
actions available under its authority to secure
compliance by an III, action against both the
POTW and the III usually is appropriate. The
program enforces requirements for Combined
Sewer Overflows (CSOs) for municipalities.
EPA released a draft permitting and enforcement
CSO strategy for comment in the first half of FY
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/993 Enforcement Accomplishments Report
1993. The program is developing enforcement
strategies for new storm water and sludge
regulations and will begin enforcement in these
areas in FY 1994,
Through the national and state-based
Municipal Water Pollution Prevention Programs
(MWPPP), EPA and states foster pollution
prevention and compliance maintenance at
POTWs. These programs are designed to prevent
future pollution that could result from capacity
limitations and operation and maintenance
problems at POTWs that are now in compliance.
The program continued to focus
compliance monitoring and enforcement efforts on
industries that are required to meet best
available treatment and water quality-based
effluent limits to control toxic pollutants, such as
the pulp and paper industry and organic
chemicals. As part of the effort to control toxic
pollutants, the regions and states enforce permit
requirements for reductions in Whole Effluent
Toxicity (WET).
The program was supportive of several
agency-wide, multi-media priorities in FY 1993,
including initiatives on the Mexican Border, at
federal facilities, and regarding data quality.
The program also participated in geographic-
based initiatives, as defined by the regions and
the Office of Water, such as the Puget Sound and
the Gulf of Mexico.
U.S. v. Aluminum Company of America (E.D. TX):
The Aluminum Company of America (ALCOA)
agreed to settle a Clean Water Act case for
$750,000 in civil penalties shortly after the trial
of the case had commenced in U.S. District Court,
An enforcement case involving effluent violations
of the National Pollutant Discharge Elimination
System (NPDES) permit had been filed against
ALCOA for violations that occurred during 1987
at its aluminum smelting plant located near
Palestine, Texas. The violations, demonstrated in
the facility's self-reported data, included
exceedances of the permit limits at an internal
outfall of certain chlorinated organics,
specifically hexachlorobenzene and
decachlorobiphenyl, a PCB, No injunctive relief
was included since the facility has been
dismantled.
p.S. v. City of Bossier City and the State of
Louisiana (W.D. LA): On February 11, 1993, a
consent decree was entered in settlement of
violations by Bossier City. The complaint
alleged that Bossier City failed to properly
operate and maintain its publicly owned
treatment works, failed to comply with effluent
limitations in its NPDES permit, and failed to
implement fully its industrial pretreatment
program. Bossier City agreed to pay a civil
penalty of $200,000 and to conduct a supplemental
environmental project (SEP) which promotes
EPA's policy of providing for the beneficial use of
municipal wastewater sludge. The projected cost
of the SEP is approximately $375,000. In the
past, Bossier City transported its municipal
wastewater sludge to a landfill. Under the SEP,
Bossier City will install sludge treatment
facilities which will produce a reusable final
product.
U.S. v. City of Cocoa. Florida: On February 10,
1993, the EPA Region IV Regional Administrator
ratified a consent agreement and final order
(CAFO) between EPA and the City of Cocoa
which included a mitigated penalty of $32,593
and several supplemental environmental projects
valued at approximately $1,963,600.
EPA's complaint alleged that Cocoa had violated
§301 (a) of the CWA by failing to monitor pH on a
continuous basis and by exceeding several other
NPDES permit limitations at various times from
October 1988 through August 1990. The SEPs
include: installation of 5,000 feet of storm water
swales; expansion of the City's wastewater reuse
system; restoration of a 300,000 gallon elevated
storage tank; and accelerated compliance with
the Florida Indian River Lagoon Act.
U.S. v. Crown Cork de Puerto Rico (D. P.R4: On
October 15, 1992 a consent decree was lodged in
U.S. District Court which required Crown Cork to
pay a civil penalty of $750,000, attain
categorical pretreatment standards for discharges
to PRASA's Carolina wastewater treatment plant
(immediately), and comply with PRASA's local
pretreatment limit for aluminum by June 1,1993.
The complaint in this action was filed in 1988,
alleging that Crown Cork, a can manufacturer
located in Carolina, Puerto Rico, had violated
the CWA by discharging pollutants into
navigable waters without a permit, discharging
pollutants to navigable waters in excess of permit
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limits once a permit was obtained, and violating
applicable pretreatment standards for its
discharges into a publicly owned treatment
works.
U.S. v. CSX Transportation. Inc. (M.D.FLk On
May 6, 1993, CSX Transportation, Inc. (CSX)
signed a consent decree for alleged violations of
the Clean Water Act at six railroad yards owned
by CSX in Florida and North Carolina. The
consent decree requires CSX to pay a $3,000,000
civil penalty and perform four SEPs valued at
over $4,000,000. The four projects are: an NPDES
compliance audit at 21 active CSX yards in
Region IV; a multi-media risk assessment audit at
61 inactive CSX facilities nationwide; an
environmental awareness training program for
CSX managers throughout the corporation; and
the development of a best management practices
manual and a seminar on storm water runoff at
railroad yards.
The civil complaint was filed on April 10,
1992, alleging that discharges from six CSX
railyards exceeded limits in the respective
NPDES permits for these facilities. The consent
decree was filed with the U.S. District Court
on September 27, 1993.
Easton. PA; A consent decree was entered in U.S.
District Court, Eastern District of Pennsylvania,
on July 20,1993. The decree required Easton Area
Joint Sewer Authority to pay a civil penalty of
$389,000 to the U.S. for past violations of its
NPDES permit. The decree also required them to
maintain compliance with their permit effluent
limitation and to implement a pretreatment
program subject to stipulated penalties.
Defendant Harcros Pigments, Inc., which had
purchased the manufacturing unit from Pfizer
Pigments, a contributing industry, was required to
maintain compliance with its industrial user
permit subject to stipulated penalties. The decree
required the Authority to pay $120,000 to the
Coalition of Religious and Civic Organizations,
Inc. (CORCO), and required Harcros to pay $7,500
to CORCO for attorneys' fees and costs. CORCO
initiated the suit in 1988 and was joined by the
U.S. in 1989.
The City of Easton, a previous holder of the
permit, was required to pay a $45,000 penalty for
permit effluent and pretreatment violations.
Farmers Union Central Exchange C^OOP/ CENEX
(Billings, Montana): EPA issued an NOV to the
State of Montana on November 11, 1990, for
violation by CENEX of its NPDES permit limits
for oil and grease dating back to December 1986.
The State replied on January 29,1991, that due to
a lack of resources, the State would not pursue
enforcement against CENEX. On June 26,1991, EPA
Region VIII referred the CENEX case to DOJ.
Over the last year, EPA has negotiated with the
company and has agreed in principle to settle the
case for $316,000. Final settlement of this case
sets a standard for the State of Montana which
should help the State in future negotiations.
Further, once concluded, it will send a strong
message to all of the regulated NPDES
community that EPA will overfile in a delegated
State when necessary. CENEX was a FY 1993
targeted inspection,
U.S. v. Florida Tile Industries. Inc. {M.D. FL): On
April 26,1993, Florida Tile Industries, Inc. signed
a consent decree for alleged violations of the
CWA at the Lakeland, Florida facility. The
consent decree requires Florida Tile to pay a
$493,070 civil penalty, requires construction of a
system to eliminate the discharge of
contaminated storm water as described in a
NPDES permit, and to perform two supplemental
environmental projects (SEPs) valued at $333,930.
The SEPS are a plan to reduce the levels of zinc
oxide used in a portion of the Florida Tile's
glazes, and the construction of a zero discharge
stormwater management system on 13 acres of
Florida Tile's property not currently subject to
NPDES permit requirements.
A civil complaint was filed on March 17, 1992,
alleging that storm water discharges
contaminated by fugitive air emissions exceeded
limits in the NPDES permit. Florida Tile is the
third largest manufacturer of ceramic tile in the
U.S.
Town of Fort Gay. WV; A consent agreement and
consent order (CACO) was issued to the Town of
Fort Gay, WV, on June 25,1993, requiring payment
of $10,000 for NPDES permit violations. This
case was referred to EPA by the West Virginia
Department of Environmental Protection after the
Town refused to enter into an enforceable
compliance schedule to correct violations at the
Town's POTW. Violations included numerous
effluent limitations violations, failure to submit
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FY1993 Enforcement Accomplishments Report
timely discharge monitoring reports (DMRs),
failure to report bypasses and Combined Sewer
Overflow (CSO) discharges, and operation and
maintenance problems. Fort Gay has now met all
compliance schedule requirements of the
administrative order to address the violations at
this facility.
U.S.. yt Gil- Caribe. Inc.: On November 24,1992, a
consent decree was entered in the U.S. District
Court (D. PR) pursuant to which G.E. will pay a
civil penalty of $500,000, and will cease the
discharge from its facility in Puerto Rico. EPA
initiated this action based on G.E.'s violations of
its NPDES permit. The settlement was reached
during pre-referral negotiations; a civil
complaint was filed simultaneously with the
consent decree.
U.S. v. McDonnell Douglas Corporation (C.D.
Cal.): On September 17, 1993, the court entered a
civil consent decree in which McDonnell Douglas
agreed to pay $505,000 in civil penalties in
settlement of an action brought under the Clean
Water Act for violations at its aerospace
manufacturing facility in Huntington Beach,
California. Specifically, McDonnell Douglas
discharged approximately 7,000 gallons of metal
finishing waste from its printed circuit board
manufacturing operations in violation of the
pretreatment standards. The wastewater was
discharged to the County Sanitation Districts of
Orange County sewers and then conveyed to the
Orange County Treatment Plant for treatment and
disposal into the Pacific Ocean.
U.S. v. Modine Manufacturing (N.D. 111.): On
May 28, 1993, a consent decree was lodged
resolving EPA's civil complaint against Modine
Manufacturing. The consent decree requires
Modine to pay a $750,000 cash penalty and
requires it to implement substantial pollution
control measures at a cost to the company of
approximately $5,300,000.
On June 11, 1993 the U.S, filed a CWA civil action
• against-Modine, seeking injunctive relief and civil
penalties for -violations of §§ 301 and 311 of the
CWA for discharging pollutants from its
Ringwood, Illinois facility, in excess of the limits
in its applicable 1975 and 1986 NPDES permits.
Since.the permits were issued to the Modine
facility in 1975 and 1986, Modine had committed
many violations of the state-issued permits.
Modine operates an Alfuse production line at the
facility that Modine has certified is the primary
cause of the CWA violations. The current
wastewater treatment process has proven
unsuccessful in treating the Alfuse wastewater
prior to discharge from its permitted outfall. This
decree requires Modine to phase-out the Alfuse
production process entirely and replace it with a
nearly pollutant-free production process. Modine
has also agreed to convert its process,on an
expedited schedule and to undertake additional
projects that go beyond those needed to achieve
compliance. The pollution prevention measures
outlined in the decree shall eliminate all BOD,
zinc, ammonia, and TSS loading in Modine's
effluent from the facility. In addition, these
measures shall eliminate the emission of
approximately 73,000 pounds of volatile organic
compounds, 7,800 pounds of particulate matters
and 1,600,000 pounds of sludge annually.
U.S. and Indiana v. New Albany (S.D. Ind.l: On
June 18, 1993, the court entered a consent decree
between the United States, the State of Indiana
and the City of New Albany, Indiana. The decree
requires that New Albany pay a penalty of
$140,000 to the U.S. Treasury and $35,000 to
Indiana, for New Albany's violations of the
Clean Water Act. New Albany is also required to
conduct extensive work on its POTW and sewer
system, including modifications to the secondary
wastewater treatment and sludge disposal
facilities, as well as sewer rehabilitation work.
New Albany estimates the cost of its compliance
activities at $17,000,000.
On March 23, 1990, the U.S. filed a six count
complaint against New Albany, a municipality
located in Floyd County, Indiana. The complaint
alleged that New Albany violated the effluent
limits of its NPDES permit, bypassed wastewater
in violation of its NPDES permit, failed to
implement and enforce its pretreatment program,
failed to provide an adequate alternative power
source and violated an administrative compliance
order issued by EPA.
U.S. v. NICOR National Louisiana. Inc. (E.D.
La): A barge cleaning facility agreed to the entry
of a court order to pay civil penalties for its
violation of the Clean Water Act. On January 12,
1993, the U.S. District Court entered a civil
consent decree in which NICOR agreed to pay
$225,000 in civil penalties. The complaint
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FY1993 Enforcement Accomplishments Report
alleged that NICOR had violated the CWA by
discharging pollutants into navigable waters
without a NPDES permit. Also, after receiving a
NPDES permit, NICOR violated effluent
limitations in the permit and failed to monitor
and report in accordance with its permit. NICOR
was in the business of cleaning and repairing
barges, tugboats, and oil field supply boats,at its
Belle Chasse, Louisiana shipyard. NICOR has
ceased operations at this facility. This case is an
example of an increasing effort to examine
transportation facilities for violations of
environmental requirements.
U.S. v. Oak Crystal Inc. d/b/a McCov Electronic
Company: On November 17,1992 a consent decree
was entered in the U.S. District Court (M.D. PA)
in which Oak Crystal Inc. agreed to pay a
$335,000 up-front penalty and agreed to expend
$325,000 to install a wastewater recycling system
which would both substantially reduce their
discharge flow and significantly improve the
quality of their effluent discharge to the Mt.
Holly Springs, PA, Wastewater Treatment Plant
(WWTP). The current discharge is now 1,500
gallons per month versus 45,000 gallons per month
prior to the project. The effluent quality of the
current discharge is also far below the limitations
imposed for metal finishers under Metal
Finishing Existing Sources Category Regulations,
40 C.RR. 433.15 et seq. The effluent violations
were detected from data which Oak Crystal, Inc.,
submitted to EPA as the pretreatment control
authority for this industrial user.
United States v. Pacific Southwest Airmojlm.
IlK. (S.D. Cal): On October 16, 1992, the court
entered a civil consent decree in which U.S. Air,
successor to Pacific Southwest Airmotive (PSA),
agreed to pay $335,000 in civil penalties in
settlement of an action brought under the CWA.
PSA owned and operated a jet engine overhaul
facility in San Diego, California from 1974
through October 1991, at which time U.S. Air
purchased PSA. The violations are based on the
discharge of industrial wastewater in violation
of the pretreatment standards for metal finishing
operations. During its operation, PSA discharged
an average of 73,000 gallons per day of regulated
industrial wastewater through the sewers to San
Diego's Point Loma Wastewater Treatment Plant.
Permzoil and Quaker State; Two CWA consent
decrees were lodged in the District Court (W.D.
PA) in November 1992 against Pennzoil and
Quaker State Corporation which addressed
unpermitted discharges of brine from stripper oil
production. Pennzoil paid an up-front penalty of
$1,150,000 and Quaker State paid an up front
penalty of $450,000. Both companies were
required to cease discharging without a permit.
U.S. v. Port of Portland (D. Ore.): On May 12,
1993, a consent decree was entered in federal
district court against the Port of Portland. for
unpermitted toxic discharges posing potential
hazard to human health and the marine
environment. The decree requires the payment of
a $92,000 penalty plus two supplemental
environmental projects for the analysis and
removal of contaminated sediments (a $58,000
study of priority pollutants in sediments near
storm water drains.)
U.S. v. Puerto Rjco Aqueduct and Sewer
Authority; During FY 1993, EPA filed four more
quarterly Motions to Enforce the terms of the
judicial consent decree in this long-standing action
against PRASA. Also during the year, EPA
collected about $1.1 million in stipulated
penalties arising out of past motions to enforce
that decree. To date, over $3.3 million in
stipulated penalties have been sought, and
nearly $2 million have been collected. Although
violations are still being routinely identified,
PRASA's overall level of compliance with the
terms of the decree has improved in recent years.
PRASA remains one of the most serious
environmental violators in Region II, not only
with respect to the Clean Water Act and not only
at its major sewage treatment facilities, but under
other statutes and at other facilities as well.
U.S. v. Puerto Rico Industrial Development
Company (PRIDCO): On June 21, 1993, a consent
decree was entered in the U.S. District Court
(DPR). Under the terms of the decree, PRIDCO
must take necessary actions to bring its Las
Piedras Industrial Park Sewage Treatment Plant
(STP), Cayay Industrial Park STP and Naguabo
Industrial Park STP into compliance with their
NPDES permits by July 1, 1994, July 1, 1993 and
July 1, 1994, respectively, by ceasing discharge.
The settlement also requires PRIDCO to pay a
civil penalty of $1 million for its past violations
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of the Clean Water Act. A complaint was filed in
this action in August, 1990.
Qty of Rock Springs (Wyoming): A Class II
administrative penalty order was issued on
August 11, 1992, against Rock Springs for
violations of its NPDES permit. The complaint
cited Rock Springs for failure to properly
implement and .enforce federal pretreatment
regulations. This case upholds the preventive
nature of the pretreatment program promulgated
pursuant to the Clean Water Act. A compliance
order was also issued on August 11,1992, directing
the City to correct the deficiencies of its
pretreatment program and comply with its
NPDES permit. A consent order was issued on
August 30,1993, that requires Rock Springs to pay
a civil penalty of $45,000 and undertake SEPs
totaling $41,000. The SEPs that will be
undertaken include development of a -household
hazardous waste program, an on-site assistance
program for small communities, and a workshop
on pollution prevention assessment^ and waste
minimization for Wyoming state pretreatment
coordinators.
U.S. v. City of Starke. Florida: The City of
Starke settled an administrative penalty action
on November 23, 1992. The agreement includes a
penalty of $10,300 and a SEP. The SEP consists of
a land .application/reuse project which will
reduce the discharge to Alligator Creek by 40%.
The project is estimated to cost $1,600,000,, and is
to be completed by September 30, 1995.
The City of Starke is located in Bradford County
approximately 45 miles northeast of Gainesville,
Fla. The City operates a waste water treatment
plant, having a capacity of 1.25 MGD, which
discharges into Alligator Creek. The facility has
a valid NPDES permit with an effective date of
August 1, 1989, Beginning in August, 1989, and
lasting through August 1991, the facility
experienced numerous violations of permit limits
for biochemical oxygen demand (BOD), total
suspended solids (TSS), total nitrogen (TN), total
residual chlorine (TRC), pH and fecal coliform.
Numerous schedule and reporting violations
occurred during the same period.
In the Matter of Town of Taos. New Mexico: An
administrative penalty, under the Clean Water
Act was assessed on July 8, 1993, for failure of a
municipality to handle its sewage sludge in
accordance with the requirements of regulations
regarding disposal of solid waste under RCRA.
The RCRA requirements for handling solid waste
were the basis for the requirements in the NPDES
permit issued to Taos for sludge handling. The
administrative complaint was issued under the
C WA because Taos failed to adequately treat and
dispose of its sewage sludge. Specifically, Taos
failed to treat land-applied sludge with a
process to significantly reduce pathogens or with
a process to further reduce pathogens. The case
was settled with a civil penalty of $125,000 and
the requirement to immediately install
temporary means of treating the sludge in order
to meet the requirements of 40 CFR Part 257. In
May 1992, Taos initiated lime stabilization to
meet the requirements.
U.S. v.Tennessee Gas Pipeline Co. (W.D. LA): A
civil action concluded on August 13, 1993 was
EPA's first enforcement case against a natural gas
transmission pipeline for water pollution
discharges from one of its pumping stations. The
court entered a final order for dismissal after the
company and EPA reached agreement on a penalty
of $725,000 under the CWA for the unauthorized
discharges of PCBs from a pumping station near
Natchitoches, Louisiana. The company had a
NPDES permit to discharge specific quantities of
pollutants from its pumping station into the lake
serving as the public drinking water supply for
the City of Natchitoches. Tennessee Gas had
exceeded NPDES permit effluent limitations for
the pollutant parameters for oil, grease and
chemical oxygen demand, had failed to submit
timely self monitoring reports to EPA as required
by the permit, and had discharged PCBs from me
station into the lake without NPDES permit
authorization.
U.S. v. Texas Tank Car Works. Inc. (N.D. Texas):
Due to the Agency's increased effort to examine
transportation facilities for violations of
environmental requirements, a rail car cleaning
facility agreed to a court order to pay civil
penalties and to prevent unauthorized discharges
of polluted water. On June 2, 1993, the U.S.
District Court entered a consent decree in which
Texas Tank Car Works agreed to pay $60,000 in
civil penalties in settlement of a civil action
brought under the CWA. This action arose out of
Texas Tank Car's failure to obtain a NPDES
permit for its discharge of hydrostatic test water
from its San Angelo, Texas rail car repair facility.
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The water had been used to determine whether
the rail car was leak-tight, and the water would
be contaminated by the material which had been
in the car previously. In addition to the penalty,
Texas Tank Car must develop a recycling and
disposal program for the hydrostatic test water
and make quarterly reports to EPA on the
implementation of this program.
y.S. v. V^ayne County Michigan et al. (E.D.
Mich): On July 2, 1993, the court entered an
interim order that requires Wayne County and 12
downriver communities to implement a Project
Plan that will significantly expand the carrying
capacity of the sewer collection system and will
increase the capacity of the Wyandotte POTW.
Costs are estimated to exceed $150 million for
this project, construction of which will extend into
the next century.
As part of the sewer improvements, the
defendants will construct a mini "deep tunnel"
designed to hold rain waters during storm events.
The order also requires all the 12 downriver
communities to finance and construct the Project
Plan, thus reducing the likelihood that any one
defendant city could refuse to finance the needed
improvements and thus keep the improvements
from going forward.
Terms of the order were negotiated between the
U.S., Michigan and Wayne County after it had
become clear that the court intended to issue some
sort of order to enable the defendants to become
eligible for loan monies (SRF funding). The case
was originally filed in 1987 against Wayne
County; an amended complaint was filed in 1988
adding the 12 downriver communities as parties
defendant.
Oil Pollution Act
Pipeline Company: EPA issued a
unilateral administrative order pursuant to §311
of the CWA, as amended by the Oil Pollution Act
of 1990, against the Colonial Pipeline Company
on April 2, 1993.
EPA, with the assistance of state, local and other
federal representatives directed the response of
the Colonial Pipeline Company to a March 28,
1993 spill of over 400,000 gallons of fuel oil
catastrophically released from a ruptured,
thirty-six-inch pipeline near Hemdon, Virginia.
The spill severely impacted Sugarland Run and
deposited oil and oil sheen on the Potomac River
as far south as Alexandria. Under the direction
of the EPA, immediate cleanup efforts by
Colonial's contractors, the U.S. Coast Guard
Strike team, and the Navy Supervisor of Salvage
resulted in the recovery of 343,000 gallons of fluid
oil. Despite these efforts, areas where oil was
continually deposited contributed oil and sheen to
the waterways, and other remedial measures
were warranted. In accordance with EPA's order.
Colonial has undertaken measures to address the
release of oil into the Sugarland Run Creek and
the Potomac River by way of excavation and
bioremediation techniques, as well as natural
attenuation.
Star Enterprises! On April 9, 1993, EPA issued a
unilateral administrative order pursuant to §311
of the CWA, as amended by the Oil Pollution Act
of 1990, and §7003 of RCRA against Saudi
Refining, Inc., Star Enterprise, Texaco, Inc. and
Texaco Refining and Marketing Inc. Star
Enterprises is the owner and operator of an 18-
acre terminal that operates nine 1.4 to 2.8 million
gallon above-ground oil storage tanks and eleven
550 to 10,000 gallon underground storage tanks.
In the fall of 1990, an oil sheen was discovered at
a nearby creek. Further investigation revealed
that a large underground oil plume, estimated to
contain over 100,000 gallons of oil, extended
northeast of the Star Terminal across Pickett
Road into commercial and residential areas.
The order requires the respondents to study, abate,
mitigate, and eliminate such threats from oil,
hazardous substances and/or solid wastes that
may exist to the public health, welfare and/or
the environment, at and around the site. The
respondents shall accomplish this by: operating,
maintaining, monitoring and modifying the
existing on-site removal systems; providing data
for EPA's comprehensive assessment of the current
and future risk(s); conducting long-term
monitoring; evaluating long-term corrective
action alternatives for the comprehensive
cleanup of oil, hazardous substances and solid
waste in all media at the site; fully
implementing the EPA selected remedy; properly
closing site systems and restoring properties
affected by the work; and, undertaking whatever
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other actions are necessary to protect the public
health, welfare and the environment at the site
from imminent and substantial endangerments or
threats. The order also requires reimbursement to
the U.S. for costs it incurs in association with
removal action under the order.
U.S. v. U.S. Oil and U.S. v. Texaco (W .D. Wash>:
In FY 1993, EPA settled the first two judicial
penalties assessed under the new Oil Pollution
Act of 1990. One was against U.S. Oil & Refining
Co., and arose out of a January 1991 spill of more
than 600,000 gallons (14,000 barrels) of oil from a
ruptured pipeline into a drainage ditch that
ordinarily drains to Commencement Bay in
Tacoma, Washington.
The other was against Texaco Refining and
Marketing Inc., and involved a spill of
approximately 210,000 gallons (5,000 barrels) of
oil from a burst pipeline booster pump. A
significant amount of the oil entered Fidalgo Bay
near Anacortes, Washington, causing an oil slick
that killed more than 140 birds.
Under the settlements, U.S. Oil had civil
penalties in the amount of $425,000 while Texaco
had penalties in the amount of $480,000. U.S. Oil
and Texaco were both made to acquire and install
state-of-the-art spill detection and prevention
equipment at an estimated cost of $800,000 each.
U.S. Oil is to reimburse federal spill response
costs of $60,000 and Texaco must reimburse
$125,000. The estimated complete spill cleanup
cost for U.S. Oil is $4,000,000 and $8,000,000 for
Texaco.
These cases form a very significant landmark in
the implementation of OPA. They represent the
nation's first two judicial penalties assessed under
OPA, and established the maximum civil penalty
for an oil spill as $1,000 per barrel spilled rather
than $5,000 per spill. Achieving such significant
penalty amounts in the first two cases under the
new act, when one spill (U.S. Oil) caused nearly
no environmental impact and the other (Texaco)
involved nearly no fault on the defendant's part,
establishes the new Act as an extremely powerful
enforcement tool and a deterrent to future spills,
as Congress clearly intended.
Marine Protection Research and
Sanctuaries Act (MPRSA)
Ocean Dumping Bart Act Cases
The New York and New Jersey
municipalities which were dumping sewage
sludge at the 106-mile site off the coast of New
Jersey for many years have now eased dumping
sewage sludge into the ocean, as required by the
Ocean Dumping Ban Act of 1988 (ODBA). The
Office of Enforcement was heavily involved in
the negotiation and drafting of the federal
judicial consent orders that were negotiated with
the municipalities.
The ODBA amended the Marine
Protection, Research and Sanctuaries Act, 33
U.S.C 1401 et see}., and required NY and NJ
municipalities to cease ocean dumping by
December 31, 1991. The Nj municipalities were:
Bergen County Utilities Authority, Joint Meeting
of Essex and Union Counties, Linden Roselle
Sewerage Authority, Middlesex County
Utilities Authority, Passaic Valley Sewerage
Commissioners and Rahway Valley Sewerage
Authority. All the Nj municipalities ceased
dumping by March 17, 1991, New York was
granted a six month extension of time to comply
with the statutory deadline. NY ceased
dumping half of its sludge by December 31, 1991
and completely ceased dumping by June 30, 1992.
In the Matter of Port Authority of New York and
New Jersey; Region II issued an administrative
order memorializing a settlement of this ocean
dumping case brought under §105 of MPRSA. The
settlement provided for payment of a $35,000
penalty, and included a supplemental enforcement
project under which the Port Authority will
provide a $15,000 grant to a private, non-profit
organization for the purpose of purchasing and
preserving wetlands in the New York Harbor
area. The maximum penalty available under the
MPRSA is $50,000 per violation. The Port
Authority had received a permit from the U.S.
Army Corps of Engineers to dredge dioxin-
contaminated material from Newark Bay, and
then ocean-dispose of the dredge spoils at a
specific location within the "Mud Dump Site,"
where it would then be capped with clean
material. The Port Authority's contractor
disposed of 500 cubic yards of dredged material at
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the wrong location in the Mud Dump Site, thus
violating the Port Authority's permit. The Port
Authority subsequently capped the improperly
disposed of dredged material with 30,000 cubic
yards of clean fill.
Enforcement of Ocean Pumping Ban Act CQpBA)
Consent Decrees: In FY 1993, Region II continued
to ensure compliance with consent decrees entered
into by municipal sludge dumpers under the Ocean
Dumping Ban Act. Several enforcement actions
were brought to penalize municipalities in non-
compliance with their ODBA consent decrees.
The Bergen County Utilities Authority was
ordered, in December 1992, to pay stipulated
penalties of $55,000. In a second action against
Bergen County, it agreed to pay penalties of
$500,000 and to deposit $780,000 into an escrow
account to be returned only if it complies with the
consent decree. That consent decree amendment,
which also included revisions to interim dates in
the schedule of compliance, is before the U.S.
District Court for signature.
A third action was brought against the City of
New York for its violations of the long term
schedule for alternative sludge disposal. The
result was an order in August 1993 shortening the
schedule for implementation of Phase I of the
City's long term alternative and adjustment of
interim dates in the Phase II schedule, without a
change to the final date. Additionally, the City
was required to pay $1.5 million into an escrow
account, which can only be recovered if it
commences construction of Phase II facilities by
August 18, 1995. The City was also required to
pay $250,000 to the U.S., and $750,000 to an
escrow account to purchase either wetlands or
open space in New York City, subject to approval
by the N.Y, State Department of Environmental
Conservation.
Wetlands Enforcement (§ 404)
Section 404 of the Clean Water Act
establishes a joint EPA - U.S. Army Corps of
Engineers permit program to regulate the
discharge of dredged or fill material into
wetlands and other waters of the United States.
The two agencies share enforcement authority.
Pursuant to a Memorandum of Agreement (MOA),
the Corps retains the lead on violations of
Corps-issued permits and EPA has the lead on
specific categories of permitted discharge cases.
The Wetlands Program places a high priority on
enforcement against unpermitted discharges. The
program utilizes judicial and administrative
enforcement authorities as well as voluntary
compliance, as appropriate, to obtain
environmental results and create deterrence, EPA
relies on information provided by the Corps, the
U.S. Fish and Wildfire Service, the states, and
the public to plan these enforcement efforts. The
Wetlands Program participated in geographic-
based initiatives as they were defined within
the Office of Water.
Casinos: On September 30, 1993, EPA issued
penalty orders against three separate casino
interests who had violated §404 of the CWA.
These violations occurred during the movement of
barges off the Mississippi River into adjacent
areas for use as waterfront gambling operations.
"AH three have entered into consent agreements
totaling $110,000, as well as separate mitigation
agreements. A total of seventeen gaming permits
have been applied for Involving similar barges to
be used in this area of Mississippi. It appears
that each one will require a separate permit from
the U.S. Army Corps of Engineers.
Custom Sand and Gravel. (Charles City County,
VA): An administrative order was issued on
December 29, 1992, for the unauthorized
construction of dikes and roadways, and the
clearing and leveling activities associated with
this sand and gravel mining operation. This
facility has operated for at least the past six
years, significantly impacting a wooded swamp
adjacent to the Chickahominy River in
Southeastern Virginia. In response to this order, a
restoration plan was submitted which will result
in the restoration of approximately 65 acres of
wetland habitat. Restoration activities have
commenced with the planting of woody species in
a previously cleared, but un-mined area.
El Dorado Gold. Inc. (Utah); On September 30,
1993, EPA filed a consent order settling a CWA
administrative penalty action against K. Terry
Lindquist, the president of El Dorado Gold, Inc., a
now-defunct Utah corporation that operated a
placer mining operation on a stream named
Browns Gulch Creek in Madison County, Montana.
The mine operated in violation of CWA §402 and
§404 from 1989 to 1990, and also violated state
mining laws. In addition to paying a $10,000
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penalty for the CWA violations, the operator of
the mine assisted in the restoration of the mine
and Browns Gulch Creek. However, the majority
of the reclamation work was completed by the
State of Montana through forfeiture of the
company's reclamation bond.
U.S. v. Charles v. Hansen. Ill (E.D. TX): On
February 5, 1993, the court entered a consent
decree in which Charles Hansen agreed to pay
$32,500 in penalties and perform restoration of
wetlands. The penalty has been paid. Hansen
had repeatedly filled coastal wetlands adjacent
to Keith Lake, a tidally influenced salt water
lake near Beaumont, Texas, without a CWA
permit. The original penalty of $24,000 had been
assessed against Hansen in an administrative
penalty action, which Hansen appealed to a U.S.
District Court. After the court had affirmed the
penalty, Hansen continued to refuse to pay it. The
U.S. then filed an action to require Hansen to pay
the previously ordered penalty and interest and
costs, and to pay additional penalties for
additional violations, as well as to restore the
wetlands
Holland Landfill. (Suffolk, VA>: An
administrative order was issued on September 8,
1993, against John C. Holland Enterprises, Inc. of
Suffolk, Virginia for the unauthorized filling of
up to 70 acres of wetlands adjacent to the Dismal
Swamp in Southeastern Virginia over the last 15-
20 years . The enterprise has agreed to comply
with the order and is developing a restoration/
mitigation plan to offset the impacts of the
unauthorized discharges. Approximately 22 acres
are proposed to be restored on-site, 50 acres of PC
cropland purchased and reconverted to wetlands
at a nearby location, and a yet to be determined
amount of wetlands acquired and put into a
conservation easement.
Kendell. Kap Brothers Excavating
Company. & Eddy L. Shaw Construction Company
(Utah): On June 23, 1993, EPA issued a consent
agreement and order for compliance under the
CWA. Under the order, Allen Kendell, owner of
property along the Weber River in Utah, and two
contracting companies agreed to remove several
thousand cubic yards of building demolition
debris and rubble that had been discharged in the
Weber River without the authorization required
under §404 of the CWA. The impacted reach of
the Weber River is rated as a high priority
fishing area by the'State of Utah and is valued
for its considerable natural beauty. In addition to
its naturally reproducing populations of
cutthroat, brown and rainbow trout, the river's
riparian habitats and associated wetlands
support nesting birds and are corridors for
wildlife in the urbanizing area near Ogden,
Utah. The area supports concentrations of
wintering bald eagles, and the Boy Scouts of
America have adopted this portion of the river
as a clean river and a wildlife habitat
enhancement project.
U.S. v. Marinijs Van Leuzen and Ronald Neal
Hornbeck (S.D. TX): The U.S. District Court,
after a trial, ordered Van Leuzen to take a number
of actions to mitigate repeated filling of coastal
wetlands and to pay a penalty. Hornbeck, a truck
driver who had hauled fill material for Van
Leuzen, was assessed a nominal penalty of $900.
Van Leuzen had repeatedly filled wetlands
adjacent to Galveston Bay in Texas without a
permit, claiming that he could get away with it
because he was so old. The court ordered him to
pay penalties of between $33,600 and $50,400 over
the next 8 to 12 years, and to restore the wetlands
by removing a residence, a septic system, and fill
material from wetlands over those years. He was
also ordered to construct a billboard on the
adjacent highway, explaining his restoration
activities and the reason that he had to conduct
the activities. This billboard is currently in
place, visible to passers-by on the busy coastal
highway adjacent to the violation site.
Western Diversified Builders. Inc. (Black Hawk,
CO): On February 24, 1993, EPA entered into an
administrative order on consent for a CERCLA
removal action and an order for compliance with
§404 of the" CWA with Western Diversified
Builders, Inc., a construction company responsible
for a major road and parking facility built to
accommodate visitors to casinos in the Town of
Black Hawk, Colorado. The project disturbed and
redirected the flow of the National Tunnel mine
drain and discharged dredged and fill material
into natural drainage in the project area. The
National Tunnel discharge is an acidic mine drain
included in the Black Hawk/Central City
CERCLA NPL (National Priorities List) site, and
it and other drainage affected by the Western
Diversified project are subject to the requirements
of §404 of the CWA. In addition to agreeing to
cease all unauthorized activities, the firrn.will
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FY1993 Enforcement Accomplishments Report
develop and implement a workplan to remedy the
acid mine discharges from the National Tunnel
and apply for a Corps of Engineers permit to leave
the fill material in the natural drainage affected
by the project.
Wells County Water Resources District: On August
8,1993, EPA filed a consent agreement and order
for compliance resolving violations by the Wells
County Water Resources District, a North Dakota
assessment district that allegedly drained
approximately 2,400 acres of prairie pothole
wetlands in north central North Dakota without
the necessary authorizations under the CWA
§404. Under the order, the Wells County Water
Resources District will restore drained wetlands
on an acre-for-acre basis pursuant to plans being
developed by a team comprised of the U.S. Fish
and Wildlife Service, the North Dakota Game
and Fish Department, and representatives of the
water resources district.
U.S^jy. Windward Properties. Inc. (N.D. GA):
On May 4, 1993, the court entered a partial
consent decree in which Windward Properties,
Inc, agreed to settle three CWA wetlands
violations for; $75,000 in civil penalties;
$55,000 to fund a wetlands restoration study;
and up to $60,000 for the purchase and
preservation of off-site wetland acreage. The
restoration study, which will be performed in
conjunction with the University of Georgia, is
believed to be the first of its kind in the
nation.
Windward is a corporation which specializes in
development of residential and commercial
properties and is a related subsidiary of Mobile
Oil Company. These violations arose out of
Windward's filling of wetlands without
obtaining the required CWA permits during the
construction of its 3,500 acre residential
development near Alpharetta, Georgia.
Safe Drinking Water Act (SpWA)
Enforcement
Public Water Supply System Program
(PWSS) |
i
The PWSS program establishes drinking
water standards for public water systems
(including Maximum Contaminant Levels or
MCLs) for a variety of contaminants.
Enforcement priorities for FY 1993 emphasized
compliance with regulations newly in effect,
including the lead and copper rule, targeting
lead in water systems, and the surface water
filtration rule. The program continued to work
toward measured reductions in the numbers of
microbiological, turbidity, organic/inorganic,
and VOC significant noncompliers.
In FY 1993, the program began an
enforcement initiative targeting drinking water
systems serving over 50,000 people which have
violated the surface water filtration rule. As
part of the Data Quality Initiative, the
program emphasized violations involving the
non-reporting or falsification of compliance
information by public water systems. The
program also continued to promote compliance
through enhanced training and support for
regional, state, and Indian tribe compliance
programs.
U.S. v. Bethlehgp 'Village District (D. N.H.):
This past year, EPA settled a civil court action
against the Bethlehem Village District in New
Hampshire for violations of the Safe Drinking
Water Act. This was the first case nationally
which was referred to enforce the June 29, 1993
deadline for installing filtration under the
Surface Water Treatment Rule.
The District had voted not to provide the
necessary funding to comply with this rule, but
has now voted to comply and is cooperating with
state and federal regulators. About $2.5 million
will be spent on a filtration plant and other
system improvements in order to ensure the
provision of clean drinking water to the residents
of the district. The District also agreed to pay a
$15,000 civil penalty as part of the settlement'.
Butte Water Company (Montana): EPA reached a
settlement (pending judicial approval) with
Butte Water Company for a $900,000 penalty! for
violations of the Safe Drinking Water Act, the
largest penalty ever collected for drinking water
violations. It is also the only judicial SDWA case
impacting a population of 30,000. A portion of
this penalty went to the state for their role in the
settlement.
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U.S. v. Sellggk Water System (W.D. Wash):
Region X obtained expedited injunctive relief
against the Selleck Water System, a small
community water system near Ravensdale,
Washington, under §1431 of the SDWA. The
district court granted the motion for a temporary
restraining order to compel the system to take
immediate steps to remedy an imminent and
substantial endangerment to public health caused
by fecal contamination of the water supply
provided to about 150 people,, including a day-
care facility. The system has a long history of
SDWA violations, Selleck stipulated to a
preliminary injunction to take the steps necessary
to remedy the situation.
In June 1993, Region X received reports of people
getting sick from drinking the water provided by
Selleck. On June 22, Region X issued an emergency
administrative order directing Selleck to, among
other things, properly operate and maintain its
treatment system, advise users to boil water until
a disinfection system was installed and working,
and submit a corrective action plan. Selleck
refused to comply with the order. A court action
followed.
This case is significant in that it is one of the few
cases nationwide in which EPA sought injunctive
relief under the Safe Drinking Water Act. It
confirmed the effectiveness of the Act in
providing a means for quick relief to avoid an
immediate threat to public health from a
contaminated water supply.
U.S. v. Virgins Islands Housing Authority
(VIHA) (D. VI): On February 24,1993, the court
entered an amended consent decree in this case.
Under the amended decree, VIHA is to undertake
various capital and O&M improvements at six of
its housing projects encompassing over sixty public
water supplies. The decree also imposes a
monitoring program on VIHA for various
contaminants subject to MCLs. VIHA is also
required to pay $12,000 in stipulated penalties for
its violation of the original decree, which was
entered on January 20,1989.
Underground Injection
Program (UIC)
Control
The UIC program regulates underground
injection practices for five classes of wells. The
FY 1993 enforcement priorities included a 'second
round' initiative against national oil company
service station Class V wells. Other program
priorities included potential releases to
groundwater, wellhead protection efforts, and
oversight of state groundwater protection plans.
Particular emphasis will be given to compliance
efforts on wells that have a potential impact on
water sources and wells subject to. the Toxic-
Characteristic Leaching Procedure (TCLP)
amendments to the RCRA regulations.
As part of the national Data Quality
Initiative, the UIC program emphasizes
reporting requirements involving Class V
shallow wells at industrial and transportation
maintenance facility wells.
BALCQ Inc. (Montana): On December 7,1992, the
federal judge in Billings, Montana, in a default
judgment, ordered Balco Inc. to comply with their
UIC permit and pay a $1 million penalty for its
violations. The violations occurred at Balco's
commercial salt water disposal well located in'
Richland County, Montana and included injection
without authorization, injection over pressure,
and, failure to submit and maintain financial
responsibility. Injection at this well has since
ceased due to actions by the State of Montana.
The U.S. has been unable to collect the penalty
and the company is threatening bankruptcy. Liens
have been filed against assets the company holds
in Montana and North Dakota.
Getty Oil Corporation and liffy Lube Corporation:
Administrative orders were issued to both the
Getty Petroleum Corporation and the Jiffy Lube
Corporation. These orders were significant
because they ordered the corporations to take
action at all of their facilities in Region III
having underground injection wells. Since EPA
Region III discovered violations in some of the
corporations' facilities, the orders required the
Corporations to inventory all facilities, to conduct
necessary remediation activities, and to
implement waste minimization plans.
Mickey's Carting Inc. v. EPA: In an October 28,
1992 decision, the Second Circuit Court of Appeals
affirmed an administrative order issued by EPA
Region II to enforce UIC provisions. The court
affirmed a district court ruling that the
administrative order was based on substantial
evidence and that the $17,000 penalty assessed
was reasonable and in accord with EPA standard
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FY1993 Enforcement Accomplishments Report
penalty policy. Region II had issued the
administrative order in March 1991, finding
Hickey in violation of UIC requirements. The
order required Hickey to cease injecting fluids into
three Class V wells and to pay the penalty for its
past violations. Hickey had sought judicial
review of the order.
U.S. v. Residual Technologies. Inc. (N.D. OK):
EPA assessed one of the largest penalties for UIC
violations occurring under a delegated program.
On March 25,1992, a complaint was filed against
Residual Technologies, Inc. (RTI). The company
had used excessive pressures in its injection of
hazardous waste and had failed to meet the
various parameters required for proper injection.
RTI agreed to the consent decree which assessed a
monetary penalty of $300,000 and resulted in the
construction of a monitoring well. The cost of
construction and monitoring is valued at $58,000.
Resource Conservation and Recovery
Act (RCRA) Enforcement
In FY 1993, ihe RCRA enforcement
program emphasized compliance with
regulations regarding incinerators, boilers, and
industrial furnaces. The program conducted
statutorily mandated inspections of Treatment,
Storage, and Disposal Facilities (TSDFs) to
ensure compliance with both operating
requirements and corrective action schedules (if
any), as well as inspections of transporters and
large quantity generators. The regions and states
also gave high priority to addressing facilities
that have had significant noncompliance for
extended periods,
In FY 1992, the program conducted an
"illegal operators' initiative against hazardous
waste facility owners and operators, generators
of hazardous waste, and transporters of
hazardous waste who failed to notify federal
and/or state authorities as required under
RCRA, This reflected the importance the
program attaches to identifying and taking
enforcement action against those who operate
outside of the regulatory system. Together, the
regions and states filed over fifty civil and
criminal enforcement cases in this effort, twenty-
seven of which were federal cases. Emphasis on
those individuals and companies that may be
operating outside the RCRA program continued
to be a high priority in FY 1993,
For FY 1993, the RCRA enforcement
program implemented the Strategic Management
Framework for the corrective action program.
This framework targets the highest priority
facilities to reduce .existing risk and prevent
future risk. The major criteria the program used
to evaluate a facility's overall priority are its
environmental significance and long term
environmental benefit.
The RCRA enforcement program
continued to use its Import/Export Data tracking
system to ensure compliance with notification,
reporting, and manifest requirements regarding
the shipment of hazardous waste. In particular,
the program targeted illegal hazardous waste
activity and participated in bilateral
enforcement activities along the U.S./Mexican
and U.S./Canadian borders.
The RCRA program emphasized
deterrence through the assessment of
appropriate civil penalties, including
implementation of the revised RCRA Civil
Penalty Policy. The program also continued to
integrate pollution prevention/waste
minimization efforts into program operations,
including incorporating pollution prevention
conditions in settlements.
The RCRA program offers extensive
training and guidance to states, tribes, and local
governments through the RCRA Inspector
Institute, including an Advanced Institute which
commenced in FY 1993. It also will continue to
provide support for NAAG and the four state
regional associations. RCRA attorney training
through NETl is an additional ares of emphasis.
The Hazardous Waste Combustion
Initiative
On September 28, 1993, EPA announced a
cluster filing of enforcement actions against
violators of hazardous waste combustion
regulations. The actions seek over $22 million in
civil penalties and, where violations are
ongoing, to compel the facilities to return to
compliance. A total of 30 federal administrative
complaints, one state complaint, and 8 federal
administrative consent agreements were filed.
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FY1993 Enforcement Accomplishments Report
The Combustion Initiative is an
important component of EPA's ongoing efforts to
minimize risfo associated with the burning of
hazardous wastes. The initiative will serve to
penalize and return to compliance boilers and
industrial furnaces (BIFs) and incinerators
identified by EPA as operating in violation of
RCRA requirements, emphasize to the regulated
community the importance of complying with
BIF and incinerator rules, and address the
public's legitimate interest in ensuring that
facilities burning hazardous waste do so
properly. Moreover, the initiative is consistent
with EPA's "Draft Combustion Strategy",
announced on May 18, 3993. The Draft
Combustion Strategy reinforces EPA's
commitment to protecting human health and the
environment from hazardous waste risks by,
amongst other things, emphasizing enforcement
of rules governing the burning of such waste and
the importance of pollution prevention,
In re: Chemical Waste Management. Inc.: On
December 31, 1992, EPA signed a consent
agreement and final order (CAFO) resolving
RCRA violations at Chemical Waste
Management, Inc.'s Trade Waste Incineration
facility in Sauget, Illinois. As Chemical Waste
had ceased its on-site ash stabilization activities
prior to the filing of EPA's complaint, the CAFO
required that prior to the initiation of any future
on-site treatment of incinerator ash, the company
must submit to Illinois EPA a revised waste
analysis plan for review and approval as part of
a Class 2 modification to its permit. In addition,
Chemical Waste will pay a civil penalty of
$275,000.
PSM Chemicals North America, Inc.: In
September 1993, DSM Chemicals North America,
Inc., agreed to pay a $121,000 penalty for
violation of §3008(a) of RCRA. On August 31,
1992, EPA Region TV had issued a complaint and
compliance order for violations relating to the
BIF rule. DSM is also required to demonstrate
compliance with the BIF rule.
ICI Acrylics, Inc.: On September 20, 1993, ICI
Acrylics, Inc. of Olive Branch, Mississippi,
entered into a CACO, agreeing to pay a $104,000
penalty for violations of RCRA, The settlement
also calls for the submission of a certification
stating that the company has ceased the burning
of hazardous waste in the boiler unit and that the
company intends to close the unit pursuant to the
RCRA closure requirements.
La Farge Corp.: Pursuant to a CAFO filed on
September 28, 1993, La Farge Corporation has
agreed to pay a penalty of $594,000 for violations
of RCRA. The facility was also required to
certify closure of its cement kiln dust waste pile
pursuant to Alabama regulations. La Farge, who
sold its facility to the Medusa Corporation on
February 1, 1993, had operated a cement
manufacturing kiln in Demopolis, Alabama.
Nutcasweet Company: A CAFO was filed against
Nutrasweet Company of Augusta, Georgia, on
May 13, 1993. The respondent agreed to pay
$80,000 for violations of RCRA. On August 31,
1992, an administrative complaint had been filed
against Nutrasweet alleging failure to
continuously monitor and record the feed rate of
feed streams being burned in two boilers, failure to
make a hazardous waste determination for
certain wastes which are stored at the facility,
and accumulating hazardous wastes on-site in
excess of 90 days.
3V Chemical Corporation: On September 22,
1993, EPA signed a CACO requiring the 3V
Chemical Corporation to pay a $57,500 penalty
and perform a supplemental environmental
project estimated to cost at least $960,000. The
central component of the project is the construction
of a closed loop non-contact cooling water system
which would produce significant environmental
benefits. In addition, the settlement includes
provisions for the submission to EPA of the
documents necessary under the BIF rule to
authorize the facility to again burn hazardous
waste in the boiler unit.
The Illegal Operators Initiative
EPA announced its second RCRA Illegal
Operators ("ILOP") Initiative, in two "waves",
on July 1 and July 16, 1933, respectively. A
follow-up to the February 1992 ILOP Initiative
that involved 50 civil actions, this initiative
against "illegal operators" of RCRA facilities -
facilities that had tried to sidestep the system
by disregarding RCRA requirements -- included
41 civil actions and 15 criminal actions.
The success of the RCRA Illegal
Operator Initiatives highlights a continuing
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FY1993 Enforcement Accomplishments Report
multimedia enforcement emphasis on data
integrity violations. Under several statutes,
EPA relies extensively on self-reporting and
other data requirements not only to keep track of
compliance and make regulatory and enforcement
decisions, but also to identify the regulated
community. Complete and accurate data are
essential to EPA's mission and compliance with
these laws is critical to the Agency's effort to
safeguard the environment. By targeting these
violations of reporting and recordkeeping
requirements, EPA is emphasizing that such
violations are not just sO'Called "paper
violations". Furthermore, this initiative
demonstrates EPA's commitment to end the
illegal storage and dumping of hazardous waste
that results in injury to both people exposed to
the offending facility and the surrounding
environment.
General Electric Co.: By a CACO entered on
September 27,1993, the General Electric Company
agreed to pay a civil penalty of $83,000 to settle
an administrative action filed under §3008(a) of
RCRA as part of the July 1993 Illegal Operator
Initiative. EPA filed a complaint and compliance
order against GE on July 15, 1993, for failure to
make a hazardous waste determination on the
electrostatic precipitator dust as required under
40 C.F.R 268.7(a). GE operates a facility in
Lexington, Kentucky, that manufactures
incandescent light bulbs. In 1987, GE installed an
electrostatic precipitator (EP) on the furnace
stacks to collect particulate matter generated in
the furnace. During inspections performed in
December 1992, the Commonwealth of Kentucky
learned that GE had not been making hazardous
waste determinations on the EP dust. As a result
of this enforcement action, GE is now
appropriately disposing of the EP dust
See U.S. v. Sherwrn-Williams. Co. (N.D. 111.) in
multi-media section of this chapter.
U.S. v. Navajo Refining Company. Inc., {D. NM):
As part of the Illegal Operator Initiative, the
U.S. filed suit against the Navajo Refinery
Company, Inc., in July of 1993, for injunctive relief
and civil penalties in the amount of $7,000,000.
The suit alleges violations at its Artesia, NM,
refinery that include failure to: notify for the TC
(Toxicity Characteristic) waste benzene (D018);
make a proper waste determination; file a Part A
permit application amendment; certify
groundwater monitoring or financial
responsibility; have a closure plan; have an
adequate groundwater monitoring system; or have
an adequate waste analysis plan. The facility
continues to release up to one million gallons per
day of wastewater through a three mile long
pipeline to evaporation ponds. The wastewater
contains regulated levels of benzene, which has
been regulated under the toxicity characteristic
rule since September 25,1990. Sampling by EPA
and state agencies, upon which the case is based,
has also found benzene in the groundwater.
Land Disposal Restriction (LDR)
Follow-up Initiative
On May 13, 2993, EPA and DO} followed
up on the 1991 LDR Initiative by announcing
settlements totaling $6.35 million in four major
cases involving violations of. the RCRA LDRs.
The $6.35 million in RCRA civil judicial
penalties represents more such penalties
announced in one day than in the previous fiscal
year. This initiative illustrates EPA's continued
commitment to enforcement of the LDR
requirements and its interest in securing pollution
prevention commitments that are not otherwise
required by law.
U.S. v. Dana Corporation (S.P. Ind.): On April 20,
1993, the district court entered a consent decree
resolving the litigation in U.S. v. Dana. The
decree requires Dana to pay a penalty of
$1300,000 and close surface impoundments and a
waste pile where lead-bearing sludges were
allegedly deposited at their facility in
Richmond, Indiana. The current estimate for the
injunctive relief based on the estimated cost of
closure and post- closure care is $3,699,788.
EPA became aware of the violations after a EPA
Region V review of state inspection records and
Dana's response to a RCRA §3007 information
request. Dana had discharged wastewater
containing lead from cupolas to several settling
areas. Dana excavated sludges containing lead
from the surface impoundments and placed the
sludges in a landfill elsewhere on the property of
the Dana Richmond facility, thereby creating a
waste pile in violation of the land disposal
restrictions.
U.S^ v. Group j?ekko International. IQC. (N.D.
Ind.): A civil consent decree requiring Group
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Dekko International, Inc. to pay a $550,000 civil
penalty was lodged on May 13,1993. In addition,
the settlement required Group Dekko to exhume
and treat approximately 11 million pounds of
lead bearing waste. Group Dekko must also; close
the waste pile under a plan that requires either
exhumation or on-site treatment of an additional
50 million Ibs. of waste; pay up to $20,000 in
oversight costs; maintain an in-line treatment
system that eliminates lead-bearing waste from
the firm's waste stream; and implement interim
mfeasures to contain the -waste pile while
treatment is proceeding.
This action arose out of Group Dekko's violation
of RCRA's land disposal restrictions for its
disposal of lead-bearing waste in a large on-site
waste pile at its facility near Kendallville,
Indiana. This facility is operated through a
division of Group Dekko called Reclaimers, Inc.,
and is designed to recover copper from scrap wire
and cable.
U.S. v. Grumman St Augustine Corp. (M.D. Fla,):
This consent decree, entered on July 20, 1993,
settles a RCRA enforcement action as well as
potential governmental contractor suspension and
debarment claims against Grumman, The decree
calls for a civil penalty of $2.5 million. Grumman
will initially pay $1.5 million in cash. If
Grumman completes several innovative pollution
prevention projects, then the settlement amount
will be reduced by $1 million.
Grumman strips, paints,and refurbishes aircraft
at its St. Augustine, Florida facility. The U.S.
brought this action against Grumman on February
22, 1991, as part of the RCRA Land Disposal
Restrictions Initiative.
The pollution prevention provisions will
substantially reduce or eliminate several highly
toxic waste streams, including a paint stripper,
methylene chloride and ozone-depleting
chemicals (e.g. CFCs). Substituting a
nonhazardous paint stripper for methylene
chloride may set a precedent for paint strippers
across the country as most of them use hazardous
solvents in their operations. EPA estimates that
up to 240,000 pounds of hazardous emissions per
year will be eliminated and toxic sludge will be
reduced if Grumman is in compliance with RCRA.
Furthermore, approximately 2,412,000 gallons of
potable water will be conserved.
U.S v. Sanders lead Co. (M.D. Ala.): A consent
decree was entered on July 15, 1993, requiring
Sanders Lead to pay $2 million in civil penalties.
In addition, the consent decree provides for
injunctive relief whereby affiliated companies
will treat wastewater as hazardous waste and
conduct corrective action under the Sanders Lead
permit to dispose of blast slag, used as fill
material for parking lots. This consent decree
resolves alleged violations involving illegal
disposal of lead-bearing hazardous wastes into
approximately eight land disposal units for up to
three years after the facility lost interim status
by operation of law, as well as for placement of
lead-bearing acidic waste into a surface
impoundment in violation of land disposal
restrictions.
This was the first civil judicial case that the U.S.
filed to enforce the land disposal restrictions and
settles a RCRA enforcement action concerning
violations at a Troy, Alabama secondary lead
smelter. The facility manufactures refined lead
alloys through the smeltering and refining of
lead-bearing scrap materials, including old lead
acid batteries.
Geographic Enforcement Initiative
An important geographic initiative
focusing on a heavily industrial area of
southeast Chicago and northwest Indiana
continues to target violations of nearly all
environmental statutes. Collectively, the
industry in this corridor has contributed to severe
water quality degradation of both surface water
bodies — including Lake Michigan — and a
groundwater aquifer, as well as to chronic air
pollution problems,
U.S. v. Bethlehem Steel (N.D. Ind.): On August
31, 1993, the district court ordered Bethlehem
Steel to pay $6 million in penalties for violation
of RCRA and RCRA-related aspects of the SDWA
permit at its facility in Burns Harbor, Indiana.
Although Bethlehem Steel had argued that the
waste mixture in question was not regulated due to
the holding in Shell Oil, the court declined to
focus on defendant's mixture argument and instead
focused on whether Bethlehem Steel's waste met
the F006 hazardous waste listing description.
The court also denied Bethlehem Steel's motion
for summary judgment on July 19, 1993, holding
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that the Paperwork Reduction Act is an
affirmative defense that must be timely pled or it
is waived.
This case was brought as part of the Great Lakes
Initiative in response to Bethlehem Steel's
failure to perform corrective action as required by
its SDWA permit and its failure to treat its waste
as hazardous. The penalty judgment was one of
the highest ever obtained in an environmental
action under any media. The large penalty was
influenced by a finding that Bethlehem Steel's
violations were willful. This case is currently on
appeal to the Seventh Circuit.
U.S. v. federated Metals. Inc. (N.D,IndJ: On
November 17, 1992, the district court entered a
consent decree resolving Federated Metals'
violations of a 1989 consent agreement and final
order (CAFO). As part of the settlement,
Federated Metals agreed to pay a $675,000
penalty and perform a corrective measures study
and possible corrective action valued in excess of
$5,000,000. This settlement is the first resolution
in a cluster of complaints filed against companies
as part of EPA Region V's Northwest Indiana
Geographic Enforcement Initiative. The case is
also part of the Agency's lead and primary
metals enforcement initiatives.
EPA and Federated Metals had entered into the
CAFO on February 1, 1989, in order to resolve
RCRA violations at the Whiting, Indiana,
facility. The CAFO required the company to
provide acceptable evidence of liability
insurance, clean up lead pollution and other
hazardous substances, and submit written costs
estimates, for closing and conducting the annual
post-closure monitoring and maintenance of the
facility. Federated Metals failed to fully comply
with these requirements within the time
specified in the CAFO. Hence, on October 16,
1990, the Agency filed a judicial complaint
seeking civil penalties and injunctive relief for
the CAFO violations.
Other Major RCRA Cases
In the Matter of Abbott Chemical, Inc.: On
December 10, 1992, EPA executed an
administrative order on consent resolving a
complaint alleging that Abbott discharged
methylene chloride into the headworks of its
wastewater treatment system in concentrations
exceeding the 25 pprn limitation in the
headworks exemption. Under the order, Abbott
agreed to pay a penalty of $180,000 and perform a
sampling program to demonstrate that methylene
chloride had not been released from its
wastewater treatment system into the
environment. The agreement further required
corrective measures if determinative levels of
methylene chloride were detected.
In the Matter of Bloomfield Refining Company,
Bloomfield, New Mexico: A corrective action
RCRA Administrative Order on Consent was
signed on December 31, 1992, for the Bloomfield
Refining Company in Bloomfield, New Mexico.
Bloomfield had been in operation since 1963. It is
an active petroleum refinery and consists of
approximately 287 acres. The facility has
released or caused to be released hazardous waste
and hazardous waste constituents to the
ground water, surface water, and soil at the
facility. Surface water contamination consists of
elevated levels of organics and inorganics. Light
non-aqueous phase liquids exist in the
groundwater beneath the facility. The order
requires interim measures, A RCRA Facility
Investigation, and a Corrective Measures Study.
Boeing Helicopter; EPA has entered into an
administrative consent order with Boeing
Helicopter of Ridley, PA, requiring the company
to pay a cash penalty of $800,000 and to make an
additional payment of $350,000 to a non-profit
environmental group, for violating hazardous
waste regulations. The non-profit group, the
Institute for Cooperation in Environmental
Management, (ICEM), based in Philadelphia,
will use the penalty funds to develop
individually tailored programs for small
businesses on how to prevent and reduce pollution
in their daily operations.
U.S. V. Buckeye Products. Inc., (E.D. Mich,); On
January 30,1991, the district court issued an order
holding Buckeye Products, Inc. (Buckeye) in
contempt for failing to comply with a 1987 consent
decree. The contempt order includes provisions
requiring defendant to, inter alia: (1)
immediately commence groundwater monitoring
on a quarterly basis; (2) fully and timely
implement post closure care; (3) pay $104,871.26
as payment of the outstanding civil penalty due,
plus interest; and (4) pay $5.31 million in
stipulated penalties for violating the consent
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FY1993 Enforcement Accomplishments Report
decree. Buckeye did not appeal the contempt
order. The government subsequently began to
garnish Buckeye's assets to satisfy the contempt
order. On October 17, 1991, Buckeye filed a
Motion to Vacate the Contempt Order, Quash the
Writ of Garnishment, and Quash the Writ of
Execution. This action was subsequently settled on
May 13,1993; however, Buckeye failed to fulfill
the payment arrangement. On September 15,
1993, the U.S. District Court for the Eastern
District of Michigan entered a judgment against
Buckeye for $5.4 million.
In the Matter of Chem-Met Services. Inc: On
February 23, 1993, an administrative law judge
(ALJ) denied Chem-Met Services, Inc.'s motion to
dismiss an administrative enforcement action.
Chem-Met argued that the wastes at issue were
treatment residues derived from hazardous
wastes and thus not subject to any RCRA subtitle C
regulations due to the D.C. Circuit's vacatur of
the "derived from" rule in Shell Oil v. EPA. The
ALJ, however, confirmed EPA's argument that it
had the authority to regulate mixtures and
derived-from residues without relying on the
specific regulatory provisions known as the
"mixture" and "derived-from" rules.
In the Matter of Chemical Waste Disposal Corpj
On February 25, 1993, EPA executed a RCRA
§3008(h) administrative order on consent with
Chemical Waste Disposal Corp. The order
provides for remediation of contamination at the
facility located in an urbanized portion of Queens
County, New York. The order requires a RCRA
Facility Investigation and various interim
measures to deal with environmental problems at
the site. A Corrective Measures Study and
Corrective Measures must also be carried out if
EPA determines they are necessary based on the
Facility Investigation results. The order was
based on an initial administrative order issued in
August 1991. Chemical Waste Disposal Corp. and
a related company had conducted businesses at
the facility involving both the transportation
and processing of hazardous wastes.
In the Matter of Cypress Aviation; On November
17, 1992, the Environmental Appeals Board
(EAB) held that wastes generated during paint
stripping operations, consisting of wastewater,
dissolved paint, paint chips, and spent solvent
(paint stripper), met the description for "F"-
listed spent solvents. The EAB rejected Cypress
Aviation's argument that Shell Oil v. EPA should
result in dismissal of the claims. The holding
affirmed a $25,000 civil penalty assessed by the
administrative law judge.
This case was initiated following an inspection of
the facility operated by Cypress Aviation in
Lakeland, Florida which revealed prohibited
solvent contaminated waste water on the land.
U.S v. Ekco HousewjtteSjJnc.; On September 20,
1993, the U. S. District Court granted most of the
U.S.' Motion for Partial Accelerated Decision
holding that when Ekco Housewares, Inc. (Ekco)
caused listed hazardous wastes to be mixed with
groundwater, the wastes remained RCRA
regulated under a "contained in"/ continuing
jurisdiction principle. The court also held that
when Ekco physically disturbed hazardous waste
disposed of prior to November 1980, Ekco
"actively managed" the waste, thereby subjecting
it to RCRA jurisdiction. These holdings are
significant because they are among the first
judicial precedents confirming RCRA jurisdiction
over listed waste mixtures after the Shell Oil
decision. On January 28, 1994, the U.S. District
Court ordered Ekco to pay a civil penalty of $4.6
million.
DOJ filed the complaint in the summer of 1992, on
behalf of EPA, for the company's failure to
maintain liability coverage and financial
assurance in connection with an on-site hazardous
waste surface impoundment, as required by RCRA.
Ekco owns and operates a bakeware
manufacturing facility in Massillon, Ohio. As
part of its manufacturing process, Ekco generated
waste products which it discharged to an on-site
surface impoundment. Between 1980 and 1983,
Ecko pumped on-site groundwater, contaminated
with, among other things, cadmium, lead, and
organic constitutes, which it utilized as a cooling
water. Afterwards, Ekco discharged the
wastewater back into the surface impoundments.
In the Matter of Hardin County, Ohio c/o Hardin
County Commissioners: This case involved an
EPA administrative action alleging that a
municipality unlawfully received hazardous
waste without interim status or a permit.
Administrative Law Judge Nissen dismissed
EPA's case on the grounds that the Shell Oil
decision operated to void the mixture rule
retroactively from the date of its promulgation.
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EPA appealed Judge Nissen's decision to the
Environmental Appeals Board (EAB), which
held oral argument on the case on September 30,
1992. In support of its position before the EAB
that Shell Oil vacates the mixture and derived-
from rules prospectively only, EPA cited the D.C.
Circuit's concern with discontinuity in hazardous
waste regulation, its invitation to reinstate the
rules without notice and comment, and its remedy
of vacatur and remand. On November 6,1992, the
case was remanded to the ALJ for determination
of whether federal or state law applied to the
violations, and it did not rule on the retroactivity
argument. On remand, Judge Nissen reaffirmed
his earlier position, ruling on May 27, 1993 that
Shell Oil is retroactive. EPA appealed that
decision, and the EAB heard oral argument on
December 8,1993.
U.S. v. ILCO. efc al. (llth Cir. 1993): On August 4,
1993, the U.S. Court of Appeals for the Eleventh
Circuit reversed the district court and held that
lead components from spent automobile batteries
were discarded and hence could be regulated as
"solid waste" under RCRA. The Court of Appeals
affirmed the district court's award of $3.5 million
in civil penalties and $845,033 in response costs.
The action arose from the ILCO's former
operations at its secondary lead smelter in Leeds,
Alabama, which reprocessed spent lead-acid
batteries from cars and trucks.
U.S. v. Marine Shale Processors. Inc. (W.D, La.):
At the close of Fiscal Year 1992, the civil judicial
action against Marine Shale Processors, Inc.
(MSP) was reassigned to U.S. District Judge
Adrian Duplantier of the Eastern District of
Louisiana. Despite the reassignment to an
Eastern District Judge, (which was effective
August 13, 1992), the case is still technically
within the jurisdiction of the Western District of
Louisiana.
On August 2,1993, Judge Duplantier, among other
things: (1) permitted the intervention of the
State of Louisiana through the Department of
Environmental Quality; (2) postponed the trial of
this matter to April 11, 1994, in New Orleans,
Louisiana (the trial has since been rescheduled to
begin on April 18, 1994); (3) granted the United
States' Motion to Amend its Complaint to include
additional claims under CERCLA, CAA, and
RCRA against MSP and the two intervening
defendants (with regard to the RCRA claims
only), Southern Wood Piedmont Co. and Recycling
Park, Inc.; (4) granted the United States' Motion
for a Protective Order with regard to MSP's
discovery of matters driven by MSP's "selective
prosecution" defense; (5) granted the U.S.'s
Motion to Strike MSP's affirmative defenses of
double jeopardy, primary jurisdiction and failure
to exhaust administrative remedies, estoppel,
laches, statute of limitations, and the defense
based on the existence of MSP's patent.
On August 24, 1993, Judge Duplantier dismissed
nine out of MSP's ten counter claims against the
U.S., citing as precedent another RCRA-related
decision in an underground storage tank
enforcement action, U.S. v. Ownbev Enterprises.
Inc. MSP's counter-claims covered a wide array of
legal theories based on assertions of negligence,
takings, and breach of contract by the U.S. The
court agreed wilh the reasoning of the District
Court for the Northern District of Georgia in
Ownbey, which found that a claim for damages is
not a proper counter-claim to a government
regulatory enforcement action. The ninth counter-
claim, which was not dismissed by the court,
alleged that the U.S. had failed to sufficiently
respond to MSP's requests to EPA pursuant to the
Freedom of Information Act.
Mqnsanto Chgniical Company; On June 21,1993,
EPA entered into a consent agreement and order
with the Monsanto Company in Springfield,
Massachusetts. Monsanto will pay a minimum
cash penalty of $26,750 and perform a SEP at a
minimum cost of $160,500. Monsanto will receive
$80,250 credit towards settlement upon
completion of the SEP.
As part of the SEP, Monsanto has proposed to
install equipment to their melamine resin
manufacturing process which would enable them
to recover methanol from the methanol-rich
distillate waste stream which is currently
generated at a rate of 3 million pounds per year.
Monsanto estimates that the recovery will result
in a 60% reduction of the waste stream or a 1.8
million pound per year reduction.
In re; Feoria. Disposal Company: On May 12,1993,
EPA entered into a consent agreement with Peoria
Disposal Company (PDC) requiring PDC to pay
$25,000 in penalties . and to implement a
Supplemental Environmental Project valued at
$70,000. The SEP is a pollution reduction project,
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FY1993 Enforcement Accomplishments Report
consisting of: 1) the construction of a containment
system for storage of loaded roll-off boxes
containing hazardous waste which are being held
at PDCs transfer facility for periods of 10 days or
less; and 2) asphalt paving over the traffic areas
of PDC's truck terminal to assure that any
spillage of hazardous waste which might occur is
prevented from being released to the environment.
EPA had filed an administrative complaint on
August 30,1991 against PDC for violations of the
transfer facility storage regulations of restricted
hazardous wastes, under § 3008(a)(l) of RCRA, as
amended.
Precision fabricating and Cleaning Inc: A consent
agreement and final order providing for a
$100,000 penalty in settlement of a complaint
alleging violations of RCRA's Land Disposal
Restriction Requirements was signed by Precision
Fabricating and Cleaning, Inc., Cocoa, FL on
August 24, 1993. On August 12, 1992, EPA had
filed an administrative action against Precision
for improper land disposal of acid (D002), freon
(F002), methylene chloride (FOOD, and acetone
(FQ03), and for failure to determine if these
wastes were restricted as required by 40 CFR §
268.7 (c). The violations were discovered as a
result of an inspection by Florida Department of
Environmental Protection (FDEP). Since FDEP is
not authorized to enforce Land Ban violations,
EPA took the lead in this enforcement action.
In re: Safety-Kleen Facilities: A consent
agreement and final order, concerning RCRA
import-notification violations at Safety-Kleen
facilities in Hebron, Ohio, was filed on May 7,
1993. Safety-Kleen has agreed pay civil a civil
penalty of $227,925. EPA had filed an
administrative complaint on April 8. 1993,
alleging that between 1988 and 1992 Safety-
Kleen received numerous shipments of hazardous
waste for which it did not appropriately notify
EPA. In addition, other violations included
notifications sent less than four weeks in advance
of receipt of shipments of waste and notifications
which incorrectly identified the waste to be
received.
In the Matter of Sequoyah Fuels Corporation.
Gore, Oklahoma; A corrective action
administrative order on consent under RCRA was
signed and made effective on August 3,1993, for
the Sequoyah Fuels Corporation located in Gore,
Oklahoma. The facility engaged in the
conversion of uranium ore to uranium hexafluoride
and the conversion of depleted uranium
hexafluoride into uranium tetrafluoride which
are used to produce nuclear reactor fuel rods and
armor-piercing bullets, respectively, from June
1970 to June 1993. This order required corrective
action activities to be performed at the site to
address the investigation and remediation of past
releases of hazardous constituents to the
environment from the facility. The order was
developed and is being implemented in conjunction
with activities of the Nuclear Regulatory
Commission (NRC). NRC regulates Sequoyah
because they manage radioactive substances.
Sequoyah is implementing decommissioning
activities under the oversight of the NRC. EPA
and NRC have developed the decommissioning
and corrective action programs at the site to
ensure that all activities at the site are
coordinated.
Sharon Stggh A unilateral RCRA §3008 (h)
initial administrative order was issued by EPA
Region III to the Sharon Steel Corporation
following a breakdown of consent order
negotiations. The unilateral order was appealed
on January 22, 1993. An Administrative Hearing
was held on July 22,1993. On August 5,1993, the
Regional Judicial Officer (RJO) recommended
that the order be issued as written, with only a
few minor modifications. There were several
disputed issues of fact and law raised by Sharon
Steel Corp., many challenging the scope of EPA's
authority to require corrective action under RCRA
§3008 (h), all of which were decided in EPA's
favor.
The RJO concluded that the broad corrective
action definition of "facility" recently
promulgated in the Corrective Action
Management Unit Rule was properly applied in
this case. Under this definition, property
separated from the regulated RCRA interim
status unit by a river, but connected by a trestle
bridge used and owned by the respondent, is
included within the scope of the order. The RJO
further concluded that EPA need only show the
release of any one hazardous waste into the
environment to satisfy the statutory requirement
of a "release of hazardous waste." The RJO also
agreed with EPA's position that although a
substance may not be a listed, hazardous waste or
hazardous constituent, if it may pose a
substantial present or potential hazard to the
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FY1993 Enforcement Accomplishments Report
environment, then it falls within the statutory
definition of "hazardous waste" (RCRA §1004
(5)). As such, it can provide the basis for a
corrective action order. Finally, the RJO affirmed
EPA's position that "to compel corrective action
investigations or studies, EPA need only identify
a general threat to human health or the
environment."
In the Matte;of Sivyer Steel Corporation.
(Bettendorf, lo.h On August 9, 1993, EPA and
Sivyer Steel Corporation (Sivyer) entered a
consent agreement and consent order in settlement
of the RCRA § 3008(a) complaint filed against
Sivyer on September 30,1991. The complaint had
alleged failure to conduct a hazardous waste
determination on hazardous waste stored in drums
at the facility and on waste arc dust, and also
alleged storage of hazardous waste for longer
than 90 days without a permit or interim status.
The order required Sivyer to; 1) pay a penalty of
$51,437.50 ($11,617.50 of which is deferred until
completion of a supplemental environmental
project, described below); 2) undertake closure of
its illegal hazardous waste storage area; 3)
dispose of its waste arc dust as hazardous waste
until such time as it can show, to EPA's
satisfaction, that the dust is no longer hazardous;
and 4) undertake a SEP. The SEP requires Sivyer
to undertake a waste minimization assessment of
all waste streams at its facility and to implement
the findings of the assessment in accordance with
a time schedule to be approved by EPA. Sivyer
must also submit a report on the findings of the
assessment and the implementation of waste
minimization practices to EPA.
IJ.S. v. Taracorp Industries. Inc.: On June 8,1993,
the U.S. District Court granted in part and denied
in part EPA's motion for summary judgment
finding Taracorp Industries, Inc. (Taracorp) liable
for the cleanup of a hazardous waste site that it
bought from the National Lead Company (NLC)
in 1979. The court rejected Taracorp's claim that
it was "impossible" to obtain financial insurance
for the site once it became listed on the NPL,
reasoning that "impossibility" went to the issue
of relief not liability. On September 2,1993, the
court reversed an earlier decision and found the
Taracorp site to be a landfill. A hearing on
September 20, 1993 determined civil penalties.
Teradyne Infc: On July 19,1993, Teradyne Inc. and
EPA entered into a settlement agreement for a
1991 RCRA enforcement action against the
company. This matter was settled for a total
penalty of $120,000. This includes a cash
payment of $50,000 plus credit towards the
performance of two supplemental environmental
projects. Teradyne will expend approximately
$800,000 for the purchase and installation of
solvent replacement units, one at the Nashua
facility (approximate cost of $350,000), and one
at the Boston facility (approximate cost of
$450,000). EPA has granted Teradyne a credit of
$70,000 for the proposed projects. Teradyne has
certified that it is presently in compliance with
RCRA requirements.
Tesoro Alaska Petroleum Company. (Kenai,
Alaska).: In an administrative enforcement action
involving a series of complex RCRA regulatory
issues, EPA negotiated a settlement with Tesoro
Alaska Petroleum Company in which the
company agreed to pay a $550,000 penalty. This
was EPA's largest cash settlement to date in the
Pacific Northwest in an administrative case
involving hazardous wastes. The complaint was
part of the nationwide Illegal Operator's
Initiative.
U.S. v. United Technologies Corporation (D.
Conn.): The court lodged a consent decree settling
this case on August 23,1993. The decree provides
that United Technologies Corporation (UTC) will
pay a total penalty of $5,301,910, of which
$4,251,910 will go to the U.S. and $1,050,000 will
go to the State of Connecticut. The decree also
incorporated an auditing agreement which
requires UTC to implement an extensive multi-
media environmental audit at all UTC facilities
located in EPA Region I.
This case was first referred to the EPA following
an inspection of UTC facilities. The inspections
detected a wide range of RCRA violations at
eight UTC facilities, including its Pratt &'
Whitney, Sikorsky, and Hamilton Standard
operations. The auditing provisions in the UTC
settlement are amongst the most extensive ever
incorporated into the settlement of an EPA
enforcement action,
Washington State University. (Spokane, WA.): In
an agreement with EPA, Washington State
University (WSU) took the first steps toward
creation of an on-campus facility to reuse
chemicals and other substances that previously
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required expensive handling as a hazardous
waste. According to the agreement, WSU would
start work on developing plans for a waste
exchange on campus that would allow
researchers, instructors and students in one
university department to be able to reuse
materials that had already been used in other
departments. Officials at WSU estimated the
campus waste exchange would cost more than
$87,500. The agreement resulted from an EPA
enforcement action involving violations of
hazardous waste regulations discovered by
inspectors from EPA and the Washington State
Department of Ecology. EPA agreed to a penalty
of only $22,500 because the university will be
implementing the waste exchange and reduction
program.
Weyerhaeuser Co., Longyiew. Washington: In a
settlement reached between Weyerhaeuser and
EPA in February 1993, it was agreed that unless
Weyerhaeuser succeeded in reducing the
.hazardous waste generated by certain equipment
at its Paper Company plant in Longview,
Washington by 45 percent, the company would
pay a penalty of $38,948 to settle a EPA
complaint alleging hazardous waste violations.
The arrangement in the settlement would allow
Weyerhaeuser . to pay only $20,000 if
Weyerhaeuser completes the waste reduction
program and achieves the reduction. The waste
reduction project involves Weyerhaeuser's
replacement of 13 devices that have relied on
solvents to wash parts at the plant. In 1991, the
use of the solvents produced more than 53,000
pounds of hazardous wastes. The waste reduction
project was proposed by Weyerhaeuser during
negotiations to settle an administrative
complaint EPA issued to the company in the
summer of 1992. EPA had alleged that
Weyerhaeuser failed to follow a number of
regulations for the proper management of
hazardous waste. Suspending part of" the
Weyerhaeuser penalty in exchange for the waste
reduction project was EPA's first use in the Pacific
Northwest of such an arrangement in an
administrative case involving hazardous wastes.
Regional Initiatives Cases:
Region III RCRA Data Integrity Initiative.- On
September 16, 1993 Region III issued five
administrative complaints, with penalties,
pursuant to §3008(a) of RCRA in support of the
Agency Data Integrity Initiative. The Region is
seeking penalties totaling over $2.5 million.
Region jl Lead-Based Paint Enforcement: During
FY 1993, the Region initiated three
administrative enforcement cases, seeking
penalties totaling nearly $1 million, for RCRA
violations arising out of the removal of lead-
based paints from architectural structures.
Considerable concern has been voiced by
residents in New York City and elsewhere
about the impact of improper disposal of lead-
containing paint chip wastes.
Region II Waste Oil Enforcement Cases; In FY
1993, Region II settled two waste oil enforcement
cases. These cases had been filed as part of the
Region's waste oil enforcement initiative, carried
out during the past several years. On January 4,
1993 the U.S. District Court (DNJ) entered a
consent decree in U.S. v. B & L Corporation. The
decree requires the company to pay a civil
penalty of $25,000 and implement a workplan
intended to insure compliance with the waste oil
regulations. On January 8,1993 the -District Court
entered the consent decree for U.S. y. L & L Oil
Service, Inc. This decree imposes a civil penalty
of $55,000, and requires L & L to comply with a
detailed workplan insuring its compliance with
the waste oil regulations. The workplan includes
provisions which exceed the scope of the RCRA
regulations. In both cases, substantial stipulated
penalties are provided in case of failure by the
Defendant to comply with the terms of the
Decrees.
Underground Storage Tanks
The UST enforcement program continued
to be implemented primarily by state, local, and
tribal governments, EPA provides technical
support and enhancement of state and local
enforcement capability as a prerequisite for
obtaining program approval.
During FY 1993, the phase-in of release
detection requirements began to apply to all
tanks installed before 1980, The federal program
uses these requirements as the focus for
developing strong state enforcement and
compliance programs.
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The federal program also helped
develop tools such as self-certifications and the
use of administrative field citations. During FY
1993, the EPA continued some direct compliance
and enforcement efforts for portions of
regulations which are not fully regulated by
states. Federal efforts will target health and
ecological risk by focusing on sensitive
geographic areas, e.g., ones with vulnerable
groundwaler, large tank populations, and poor
compliance histories.
In Re the Ciiele K Corpof ation, gt. M.: On March
29,1993, EPA, DOJ, and the National Association
of Attorneys General (NAAG), on behalf of thirty
states, announced a $30 million settlement in
bankruptcy court with Circle K Corporation
(Circle K) and affiliated companies. Circle K
operates convenience stores and gasoline stations
nationwide. The settlement agreement resolved
Circle K's RCRA liabilities with respect to
potential petroleum contamination from the
underground storage tanks at approximately 1,100
stores that Circle K no longer operates. The
settlement amount will be paid in six installments
into a State trust fund and used to remediate any
contamination from petroleum leaks at these
sites. This case represents the growing
cooperation between EPA and the states in
enforcing the underground storage tank provisions
of RCRA.
In the Matter of Frank Mustafa: On September 1,
1993, EPA Chief Administrative Law Judge
Frazier, issued an Accelerated Decision and Order
in an enforcement action under Subtitle I of RCRA
governing regulation of underground storage tanks
(USTs). The decision was the first in the nation to
construe EPA's Penalty Guidance for Violations of
UST Regulations. Judge Frazier found the
respondent liable for failure to notify the
designated state agency as to the existence of
USTs owned by respondent, and for failure to
provide a method of release detection, and
assessed a civil penalty of $74,105. Frank
Mustafa, owns and operates underground storage
tanks at two (once three) service stations in the
U.S. Virgin Islands. The complaint charged
Mustafa with two counts, failure to notify and
failure to provide a method of release detection
for six underground storage tanks. The parties
stipulated as to respondent's liability, and
submitted the issue of the amount of the civil
penalty to the Judge for resolution.
U,S. v. Somerset Refinery Inc. (EJD.Ky): This case
was one of the first judicial actions to enforce the
newly listed petroleum refinery hazardous waste
FO37. EPA filed a complaint on July 16, 1993, for
RCRA Subtitle I (underground storage tank)
violations and for RCRA Subtitle C (hazardous
waste) violations. The complaint was filed as
part of the National RCRA Illegal Operators
Initiative. The defendant is located in Somerset,
Kentucky. The complaint requests injunctive
relief and civil penalties for 148 UST violations
and for violations in conjunction with the
operation of a hazardous waste
treatment/storage/disposal facility and for
corrective action. The majority of these
violations are for failure to comply with leak
detection regulations. This case, the first civil
referral in the nation to enforce the UST leak
detection regulations, arose as a result of a multi-
media inspection performed by Region IV RCRA
and UST Programs, as well as the Kentucky
OSHA program. Somerset is the second largest
UST owner in Kentucky.
In re: USX Gary Works: On July 26,1993, EPA and
USX entered into a consent agreement and final
order (CAFO) resolving EPA's claims relating to
violations of RCRA and the underground storage
tank (UST) regulations at USX's Gary Works
facility. In the CAFO, USX agreed to pay a
penalty of $164,550 and undertake significant
corrective actions at the facility. EPA had issued
a complaint against USX on January 24, 1992
alleging numerous violations of RCRA and the
UST regulations, including violations relating to
the manner in which USX had closed certain UST
units.
Comprehensive Environmental
Response, Compensation, and
Liability Act (CERCLA) Enforcement
(Superfttnd)
Superfund potentially responsible party
(PRP) commitments have increased
dramatically over the last several years
(reaching a record high of almost $1.5 billion for
private party cleanup in FY 1992 and exceeding
$1.0 billion in the two prior years). Currently,
responsible parties account for almost three-
quarters of the Superfund response action
commitments now being obtained.
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The Superfund enforcement program
emphasizes timely and thorough PRP searches
and negotiation of Remedial Investigation/
Feasibility Study and Remedial
Design/Remedial Action agreements within
established firm deadlines. The enforcement
program supports the implementation of the
Superfund Accelerated Cleanup Model by
participating in negotiations on enforcement
activities for PRP responses at earlier stages of
the Superfund process. EPA is also emphasizing
compliance with consent decrees and
administrative • orders, and takes enforcement
actions where necessary to compel compliance
with the terms of settlement agreements,
unilateral orders, and judgments to implement
response actions.
In order to reduce "transaction" costs,
EPA seeks to resolve the liability of more parties
and deal with "collateral" PRPs (e.g., small
parties) earlier in the process through the use of
"de minimis" settlements. To further reduce
transaction costs, EPA published its final lender
liability rule in June 1992, making clear that
lenders with mortgages on contaminated
properties are not candidates for enforcement
actions unless they actually controlled
operations at the facility or foreclosed on the
property and caused contamination at the site.
The program maintained its emphasis on
case referrals against noncompliers and non-
settlers to the Department of Justice. The cost
recovery component stresses targeted case
referrals and improved claims resolution to
maximize reimbursement of Trust Fund revenues.
In addition to pursuing §107 cost recovery civil
actions (including treble damage claims), the
program also increased the use of Alternative
Dispute Resolution (ADR) and mediation for
settling cost recovery actions administratively.
As part of the FY 1993 Data Quality
Initiative, the program emphasized compliance
with information requests pursuant to §W4(e)
and with §103 release reporting requirements.
Enforcement of CERCLA §104(e)(2)
information requests continued to be a high
priority. 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.
During FY 1993, the Agency filed several
additional cases enforcing CERCLA §l04(e){2)
requests as well as continuing to litigate
previously filed cases. The Agency has now
filed over 30 such civil judicial actions (not
including administrative orders it has issued
pursuant to CERCLA §W4(e)(5)(A)). For
§W4(e)(2) enforcement, FY 1993 was a highly
successful year in several respects, including
assessment of a record penalty and development
of favorable case law.
CERCLA 104 Cases
Cherokee County MPL Superfund Site, (Kan.): On
December 19, 1993, EPA Region VI! issued six
administrative orders for access pursuant to
§104(e) of CERCLA to individuals who own
property at the Cherokee County site in Galena,
Kansas. In order to conduct the estimated $13
million remedial action at this NFL mine-waste
site, EPA needed access to property owned by
approximately 150 different individuals. Most of
the property owners voluntarily agreed to
provide access to EPA. However, six individuals
denied EPA access to the site, and administrative
orders were issued requiring them to provide EPA
with all access necessary to perform the remedial
action. Each owner complied with the access
order, and remedial action construction activities
were able to begin as soon as the design was
completed. The case exemplifies the Agency's
commitment to obtaining access quickly and using
EPA's enforcement tools under CERCLA §l04(e).
U.S. v. Custom Leather Services. Inc. CE.D.
Perm.): On April 14, 1993, the court issued a
decision upholding EPA's authority to request
information from a parent corporation respecting
its relationship to — and ability to pay for -
the CERCLA liability of a subsidiary
corporation. The court cited U.S. v. Pretty
Products Inc.. 780 R Supp. 1488 (S.D. Ohio
1991) as support for the proposition that
Congress intended a broad reading of EPA's
§104(e)(2> authority. Consequently, the court
directed Katy Industries, Inc. to comply fully
with EPA's requests related to the American
Street Tannery site.
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U.S. v. M. Genzale Plating (E.D.N.Y,): In
November 1992, the court issued a judgment for
$40,000 in penalties against M. Genzale
Plating, Inc., the estate of Michael Genzale,
and Pasquale Genzale for the defendants'
failure to comply with an administrative order
issued by Region II pursuant to § 104{e)(5> of
CERCLA. The administrative order, which
directed the named parties to provide EPA and
its contractors with access to their property for
response work, was issued in 1989. When
defendants refused to comply, EPA promptly
obtained a court order compelling compliance.
Thereafter, the U.S. sought a determination
that the defendants' had unreasonably failed
to comply with the order, which is a
jurisdictional prerequisite to the assessment of
penalties. The court granted that determination
in October 1991. In October 1992, a hearing
determined the appropriate penalty amount.
The court assessed a penalty of $2,000 for each
day of noncompliance, or a total of $40,000.
U.S. v. Fetersen Sand & Gravel. Inc. N.D.I1); On
May 12, 1993, the district court approved a
consent decree relating to EPA's response action
at the Petersen Sand &: Gravel Superfund site
in Libertyville, Illinois. The settlement required
Petersen Sand & Gravel, Inc. (PS&G) to pay
EPA $700,000. Specifically, the decree provided
for recovery of $590,000 in EPA's past costs, a
$100,000 CERCLA penalty, and a $10,000 CWA
penalty for noncompliance with information
requests. In addition to the penalties, the decree
obligated PS&G to provide a full response to
EPA's original information requests and to
certify the completeness of such response, at
the risk of incurring liability for stipulated
penalties if the response is again found to be
inaccurate or lacking.
EPA's §104(e)(2) enforcement action arose from
PS&G's failure to furnish accurate and complete
information relating to its disposal of hazardous
wastes at the Libertyville site. PS&G mined
sand and gravel at the roughly 1,000-acre site
from the 1950's until 1980. Several hundred
drums of paints, solvents, and other industrial
wastes were dumped at the site during this
time. In 1977, the company removed some 400
drums from the site. In response to a 1980 CWA
request by Region V, PS&G failed to identify
certain additional drums that still remained
buried on the site. In 1983, Lake County Grading,
Inc., which was operating the site at that time,
discovered these additional drums. EPA
subsequently oversaw the removal of the drums.
In 1986, using CERCLA and ECRA authority,
Region V again requested PS&G to provide
information relating to these wastes; in
response, PS&G denied any knowledge of them.
In 1990, EPA made a third request, but PS&G
still failed to provide a full history of its past
disposal of wastes at this site. During a
subsequent deposition of a PS&G employee, EPA
finally learned that PS&G's owner and
president, Raymond A. Petersen, Sr. (now
deceased), had buried these wastes at the site
around 1969.
U.S. v. Roger L. Tannery N.D. Tx): The
$12,475,000 penalty in this case represents the
largest penalty ever for noncompliance with a
CERCLA information request, and one of the
largest penalties in the history of EPA
enforcement. The court assessed the record
penalty on December 7,1992 and also ordered the
defendant to provide a full response to EPA's
information request.
EPA's information request arose from Mr.
Tannery's failure to furnish information relating
to his involvement with a Superfund site in
Fort Worth, Texas, known as the American
ThioChem site. When Mr. Tannery did not
comply with the information request, the court
assessed the maximum penalty of $25,000 for
each day of noncompliance.
Bankruptcy cases
In the Matter of National Gypsum: On November
9, 1992, and February 16, 1993, the U.S.
Bankruptcy Court (N.D. Tex.) entered settlement
agreements resolving environmental claims
between the U.S. and National Gypsum. Under
the agreements. National Gypsum will pay EPA
$2,650,000 for the Millington Portion of the
Asbestos Dump Superfund Site in New Jersey, and
$2,000,000 for the Salford Quarry in
Pennsylvania. Additionally, EPA received an
allowed claim of $89,259,148 for five sites
(Operating Unit 2 of the New Jersey Asbestos
Dump Site, the Coakley Landfill in New
Hampshire, the H.O.D. and the Yeoman Creek
Landfills in Illinois, and the Yellow Water Road
site in Florida) plus legal fees for litigation costs.
Additionally, pursuant to the agreements, a trust
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FY1993 Enforcement Accomplishments Report
was created for the Salford Quarry site and it
received an allowed claim of $10 million. The
agreement also provides a mechanism by which
the U.S. may make claims against the
reorganized National Gypsum Corporation in the
future.
In May 1990, National Gypsum Company and it's
parent, Aancor Holding, Inc. filed a voluntary
petition in bankruptcy under Chapter 11 of the
Bankruptcy Code in the U.S. Bankruptcy Court for
the Southern District of New York. The U.S.
filed a multi-site, multi-region proof of claim in
May 1991. During May 1992, the court conducted
an estimation hearing to determine the size of
EPA's claim at the Asbestos Dump site and the
Salford Quarry Site. The settlement agreements
resulted from negotiations between the parties
before and after the estimation hearing.
In the Matter of Terald Gershon (D. Kan): On
September 3, 1993, the bankruptcy judge
confirmed a settlement agreement and stipulated
order which settled bankruptcy claims of EPA
against Jerald Gershon concerning environmental
response costs incurred and to be incurred by EPA
at three sites in Kansas. The settlement arises out
of the filing by EPA of a cost recovery action
against Chemical Commodities, Inc., a defunct
corporation in which Gershon was the sole
shareholder, and Gershon personally. Gershon
responded by filing a Chapter 7 bankruptcy
petition. Subsequent to the filing of Gershon's
bankruptcy, EPA filed a proof of claim for
response costs incurred and to be incurred by it for
clean-up activities undertaken and to be
undertaken by EPA at the sites. In addition, EPA
filed a Complaint Objecting to Discharge of
Debtor under §727 of the Bankruptcy Code and an
Objection to Claim of Exemptions by Debtor under
§522 of the Bankruptcy Code. Gershon also filed
an action in the bankruptcy proceeding requesting
a stay of the cost recovery action against him and
requesting that the bankruptcy court make a
determination as to Gershon's liability for the
environmental claims EPA had raised in the cost
recovery action.
The settlement concludes all of the above pending
actions. Under the terms of the settlement,
Gershon is required to pay $200,000 to the
bankruptcy trustee for distribution to creditors, of
whom EPA is by far the largest. EPA estimates it
will receive 70%-75% of the money paid into the
bankruptcy estate. This settlement represents the
most significant monetary contribution made by
Gershon relating to the clean-up of the three
Kansas sites. This is also the first time that
proceedings such as an Objection to Discharge and
an Objection to Exemptions have been pursued by
EPA in a Chapter 7 bankruptcy.
Other Superfund cases
Aberdeen Pesticide Dumps Sjte, (Aberdeen,
N.C.): On May 3,1993, EPA Region IV issued 44
unilateral administrative orders (UAOs) under
§106 of CERCLA to 44 generator PEPs at this site.
The UAOs require the PRPs to perform thermal
desorption on pesticide-contaminated soils at the
five separate disposal areas which comprise this
site. The large number of UAOs reflects the fact
that only certain of the PRPs were involved at
each of the areas and that probable third-party
defenses would preclude enforcement of site-wide
UAOs to each PRP. In an attempt to achieve
economies of scale, the UAOs allow the PRPs to
cooperate by constructing and operating a common
treatment facility,
Groundwater at the site will be addressed in two
subsequent RODs. In addition, the site is
currently the subject of litigation under §107 of
CERCLA to recover over $7 million in past
response costs incurred by EPA for removals and
the RI/FS.
U.S. v. Airco Plating j^ompany. Inc., et.al.. (S»D.
Fla.h On February 24, 1993, the district court
entered a civil consent decree pursuant to CERCLA
in which Airco Plating Company, Inc., (Airco) and
11 other persons agreed to pay a total of $415,158
to reimburse the Superfund for response costs
incurred by EPA through October 31,1991, at the
Airco Plating Superfund site in Dade County near
Miami, Florida. One of the eleven other settlors,
Allied Products Corporation, is a Fortune 500
company that had for several years owned most
of the land comprising the site. The remaining
ten settlors are individuals who were either
involved with the site as current or previous
landowners, or are persons who had a past or
present responsibility for making waste
management decisions at Airco.
In the mid-1950s, Airco and its founders began an
electroplating business at the Dade County
location where it still continues to operate.
Airco's metalplating process generated a waste
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effluent high in toxic metals such as cadmium,
copper, and zinc, and from about 1957 until 1972
Airco discharged this waste effluent directly into
three unlined pits. In 1971, the State of Florida
and EPA investigated conditions at the site, and
the next year Airco altered its disposal practices.
Nevertheless, in 1990 the site was placed on the
NPL after an expanded site investigation showed
serious contamination of soil and groundwater.
EPA recently selected the remedy for this site,
and is preparing to undertake negotiations with
the same settlors for the final site cleanup, and
reimbursement of response costs incurred by the
U.S. subsequent to October 31,1991.
U.S. v. U.T. Alexander., et al.. (S,D. Texas): On
July 23, 1993, Judge Kent granted the U.S.
motion to enter the MOTCO Consent Decree.
Parties to the consent decree included the U.S.,
Amoco Chemicals Company, Amoco Gas
Company, Amoco Oil Company, Amoco
Production Company, Marathon Oil Company
(successor by merger to Marathon Petroleum
Company), Monsanto Company, Quantum
Chemical Corporation (formerly National
Distillers and Chemical Corporation) and
Texas City Refining, Inc.
Under the decree, the defendants agreed to
carry out a combined operable unit (OU)
remedy (OU-1, Source Control; OU-2,
Management of Migration) and to pay the U.S.
$1.3 million in past response costs and all
future response costs. The U.S. agreed to
forgive $2.25 million in past response costs
in consideration for defendants' waiver and
termination of all remaining reimbursement
claims under the 1987 mixed funding
agreement for source control remediation.
ILS. y. Allied Corporation, et al. (W.D.N.YJ;Qn
December 14, 1992, two judicial consent decrees
were entered by the district court concerning the
Kentucky Avenue Wellfield Superfund site
located near Horseheads, New York. Allied-
Signal, Inc. and Purolator Products Company, Inc.,
the current and prior owners and operators of
what is referred to as the Facet Enterprises
Facility, executed one consent decree;
Westinghouse Electric Corporation, the current
owner of the Westinghouse Facility,
independently executed a separate decree. Both
these facilities were determined by Region II to
have contributed to contamination of groundwater
at the site.
The Allied and Westinghouse decrees required
the respective defendants to make payment to
the U.S. of $1.1 and $3.9 million, respectively,
for past response costs incurred at the site as well
as certain future response costs that were to be
incurred. Those future costs included in the
settlements are limited to the costs associated
with the ongoing design and construction of an air
stripping unit at the Sullivan Street Wellfield, a
municipal well in the southern portion of the site.
This response action is being performed by EPA.
UfSt yt American Seating Company, et al. (W .D.
Wise.): On November 25, 1992, the district court
entered a consent decree in resolution of this
CERCLA action. The decree, which concerns the
Mid-State Disposal NPL site in Stratford,
Wisconsin, requires the defendants to reimburse
the U.S. for $1,578,958 in past response costs.
With this settlement, parties other than the U.S.
will fund $20,579,000 of the $20,677,000 in costs
necessary to remediate the site.
The American Seating consent decree is the second
decree approved by the court concerning the NPL
site. The first consent decree was entered by the
court on March 28, 1990, and contained four
settlors' commitment to reimburse a portion of the
Agency's costs and to perform Remedial
Action/Remedial Design (RD/RA). Two months
later, the court thwarted three non-settlors'
attempt to stall the cleanup by denying their
motions to intervene, vacate, and reconsider the
entry of the decree. The court's opinion, which is
highly favorable to the U.S. in denying their
motion to intervene and in upholding the
President's discretion in exercising the United
States' CERCLA §122(a) settlement authority, is
published in the Federal Rules Decisions Court
Reporter, 131 F.D.R. 573 (W.D. Wise 1990).
The Mid-State RD/RA decree was modified on
November 18, 1992, when the court entered an
order adding 16 Wisconsin municipalities as
settling defendants. Three of the non-settlors from
the earlier RD/RA negotiations, two of whom
were also denied intervention and vacation of the
Mid-State Disposal decree, are now settling
defendants in American Seating. Together, these
two decrees represent a 99.6% recovery by the
U.S. of the total cost of remediating this site.
U.S. v. Anaquest Caribe. et al.: On January 8,
1993, a consent decree between the government and
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FF1993 Enforcement Accomplishments Report
four PRPs at the Fibers Public Supply Well site in
Guayama, Puerto Rico was entered in U.S.
District Court (DPR). The decree provides for
performance of cleanup activities and for
reimbursement of costs spent by EPA at the site.
The PRPs agreed to implement a pump-and-treat
and excavation remedy, and to reimburse EPA for
$436,000 of its $586,000 in past costs spent at the
site, as well as all future RD/RA oversight costs
incurred by EPA. The RI/FS for the site was
performed by several of the PRPs pursuant to
three administrative consent orders issued by
Region II in 1985, 1986 and 1989. The projected
cost of the remedy is about $6.7 million. The
settling defendants are Anaquest Caribe, Inc.,
Phillips Petroleum Company, Chevron Chemical
Company and American Home Products Corp. One
PRP, the Puerto Rico Industrial Development
Company, declined to participate in the decree.
U.S. v. Anchor Motor Freight (N.D. Ohio): On
August 27, 1993, the court granted the
government's motion to enter three consent decrees
lodged last February in U.S. v. Anchor Motor
Freight. Within thirty days of the date of entry,
the settling parties collectively are required to
deposit $2.7 million into the Hazardous Waste
Superfund. This represents a 92.4% recovery of
the settling defendants' second-round volumetric
share (the calculation of each settling
defendant's portion of non-reimbursed response
costs) of the government's costs, including
enforcement costs and interest.
The United States filed this §107 action to
recover non-reimbursed response costs incurred by
EPA in connection with the Laskin/Poplar Oil
Superfund site in Ashtabula County, Ohio. Two
decrees had been entered earlier in this
litigation: the first recovered $1.47 million in
past costs, and the second for remedial design/
remedial action and recovery of $1.4 million.
Arctic Surplus: EPA entered into an AOC with
the Alaska Department of Transportation
(ADOT) to conduct removal activities on
Badger Road which is contiguous and adjacent
to the heavily contaminated portions of the
Arctic Surplus site. The ADOT has owned and
continues to own the portions of the road
which were contaminated during the operation
of the Arctic Surplus Scrap Yard. This order,
entered on November 4, 1992, provides for,the
removal of highly contaminated soil and
capping of lower levels of contamination both
under the road and in the adjacent bike
line/path. The road will be repaved as part
of this project.
The ADOT order is being conducted concurrently
with the RI/FS order with the. Defense Logistics
Agency (DLA) signed on July 24, 1992, which
provides for the conduct of the RI/FS by DLA, a
significant contributor of scrap (transformers,
batteries, vehicles, drummed liquid chemicals)
to the site.
U.S. v. Ariens (E.D. Wise.): On October 20,1992,
the court entered a consent decree requiring the
PRPs in this CERCLA action to implement the
Remedial Design and Remedial Action (RD/RA)
required by the Record of Decision (ROD) for
Operable Unit 1 at the site. This remedial work,
which will cost approximately $20 million,
includes the construction and maintenance of a
slurry wall around the landfill's perimeter and a
clay/soil landfill cap and gas collection system.
In addition, the decree requires the PRPs to
reimburse the Agency for $700,000 in past response
costs, thereby funding over 94% of the past costs
at this site. .
Lcmberger Landfill, Inc. and the Lemberger
Transport and Recycling facilities operated as
disposal facilities near the Village of Whitelaw
in Franklin Township, Manitowoc County,
Wisconsin. The two former landfills are located
within a quarter mile of each other.
Arkansas Peace Center, et al. v. Arkansas
Department of Pollution Control and Ecology, ej
al.. (Jacksonville, Ark.): In July 1993, the U.S.
Court of Appeals for the Eighth Circuit ruled
that a federal district court lacked jurisdiction to
entertain a lawsuit brought under CERCLA by
opponents to an incinerator at the Vertac
Superfund site. Opponents to the incinerator
sought a permanent injunction against EPA and
the State because of allegations that the
incinerator did not comply with federal
regulations concerning performance. The district
court judge issued a preliminary injunction on
March 17,1993, which was stayed by the Eighth
Circuit court on that same day. In the July 1993
ruling by the Eighth Circuit, the court found that
plaintiffs' lawsuit was barred by the plain
language of CERCLA §113(h) until completion of
the response action. The appeals court panel also
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FY1993 Enforcement Accomplishments Report
stated that, if the panel had jurisdiction to rule
on the merits of the case, it had no doubt that the
district court erred in its interpretation of the
incinerator performance regulation which served
as the basis for the preliminary injunction order.
Augusta/Hyde Park.(Augusta. Ga.): EPA Region
IV expended more than $1 million in response to
citizens' concerns about contamination of the
Hyde Park/Virginia Subdivision neighborhoods
in Augusta, Georgia, EPA had issued an
emergency order under the SDWA in 1989 to
address groundwater contamination in the area.
After receiving additional citizens' complaints
regarding high incidence of disease in the
neighborhood in the summer of 1992, EPA held a
meeting with local, state and other federal
agencies, including a task force organized by the
Governor of Georgia, and determined that there
were legitimate concerns for the health of this
community. EPA developed a work plan for the
area during the fall of 1992, and began sampling
surface soils, surface water, groundwater and
sediments in February 1993. EPA tested
residential areas as well as 18 industrial sites
within the neighborhood. Over 1,000 samples
were taken and then analyzed for up to 176
constituents, including dioxin analysis for a
percentage of samples.
This effort represents the largest scale site
assessment in Region IV. This area is a lower
income and predominantly African-American
neighborhood, and EPA is very conscious of the
environmental equity issues inherent in the
situation. EPA from the beginning included in its
consultations the Governor's Task Force, which
includes a number of citizens from the area, and
met with the community prior to beginning the
sampling effort and attended a May 15, 1993,
McKinney-organized community meeting to
address citizen concerns.
EPA released the technical report of the data
collected at a September 10, 1993 meeting of
interested governmental organizations, and has
asked ATSDR to analyze the data for health
implications. EPA held a public meeting in
Augusta on September 16,1993 to present the data
to citizens. The data were such that the Region
did not believe an imminent and substantial
endangerment exists, and the Region is awaiting a
reassessment by ATSDR of the possible connection
between contaminants found and health impacts
claimed before making final determinations of
action for the area.
U.S. v. AVX Corporation, etal. (P. MAJ: On
April 23, 1993, the court entered the consent
decree for the second operable unit at the
Sullivan's Ledge Superfund site in New Bedford,
MA. Simultaneously, the court also entered a
First Amendment to Consent Decree pertaining to
the consent decree for the first operable unit. The
expected cost of the remedy is $5.8 million.
The site is an old granite quarry, located in an
industrial/suburban area of New Bedford. The
site is owned by the City of New Bedford. From
about 1935 through the 1970's, the City owned
and operated the Ledge as a dump for local
industrial wastes and solid wastes. The site was
listed on the National Priorities List in 1984,
The settlement requires the PRPs to excavate an
ecologically sensitive marsh which lies in the
midst of a golf course. Excavated sediments are
then to be disposed of beneath a cap to be
constructed at the first operable unit. Work at the
first operable unit is subject to a previous consent
decree. The remedy to be performed by the PRPs
is precedent-setting in that it is driven by
ecological risks, rather than human health risks.
Under the decree, fifteen entities, including the
City of New Bedford, agree to perform the
remedy. However, the responsibilities of the
parties vary greatly. AVX Corporation agrees to
perform all the work (consisting of the remedial
action plus operations and maintenance). The
City of New Bedford agrees to perform specific
portions of the remedial action {not including
O+M) and secure access and institutional controls.
The consent decree sets up triggers and
mechanisms whereby AVX must undertake
unperformed obligations of the City. The
remaining parties, all of whom, like AVX, settled
for the first operable unit, agree to accept under
the cap at the first operable unit those wastes
that are generated by the second operable unit
remedial action, litigation to recover further
past costs for the first and second operable units is
currently underway.
B & B Chemical Company Site. {Hialeah, Fl.):
On May 11, 1993, a Unilateral Administrative
Order to Cease Extraction and Treatment of
Groundwater was issued to B & B T ritech. Inc.
regarding its activities at the B & B Chemical
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Company Superfund site in Hialeah, Florida,
pursuant to §106(a) and §122(e)(6) of CERCLA.
B & B is a manufacturer of detergents, oxidizing
agents, metal cleaners, corrosive inhibitors, and
paint strippers. The release of hazardous
substances into the soil and groundwater at the
site resulted from the company's former methods
of handling and disposing of process wastes. Such
contaminants include vinyl chloride, benzene,
chlorobenzene, and chromium. These substances
have been detected in the groundwater at the site
in concentrations exceeding the allowable MCLs
under state and federal law.
Subsequent to EPA's publication of a proposed
plan for remediation, EPA obtained sampling
data indicating unexplained increases in
groundwater contaminant concentrations. B & B
ascribed these increases to its operation of the
county-ordered groundwater treatment system for
30 days prior to EPA's sampling. Accordingly,
EPA issued the order to B & B requiring it to
cease groundwater extraction and treatment until
further notice, remove the groundwater pump, and
allow EPA to install a lockable well cap. The
facility agreed to comply, and the sampling is
proceeding on schedule. This will allow EPA to
select an appropriate remedy for the site.
U.S. v. BASF Corporation; Carolina Plating and
Stamping Corporation: Colpniaj Heights
Packaging Inc.; E-Systepi.Inc.? Metal Products
Corp.; and SteyMftg Winthrop Inc1Jf (D S.C.h On
January 4,1993, the court entered a civil consent
decree, in .which the settling parties agreed to
perform the remedial design and remedial action
and pay past costs totaling $71,569. These actions
arose out of CERCLA violations for improperly
disposing metal substances in lagoons on-site. The
site was listed on the NPL in June 1987.
Under the terms of the decree, the settling parties
were required to pay past costs to EPA on or before
February 4, 1993. The settling parties failed to
make timely payment, and on March 3,1993, EPA
issued a letter informing them that stipulated
penalties were accruing. EPA received payment
for the past costs on March 12,1993, 36 days after
the required date in the decree. On April 12,
1993, EPA sent a demand letter for payment of the
stipulated penalties and after negotiations on
May 13, 1993, the settling parties paid EPA
$83,000 in stipulated penalties.
U.S. v. BASF-lnmont. et al.. (E.D. Mich.): On
March 17,1993, the court entered a consent decree
concerning the Metamora Landfill site in Lapeer
County, Michigan. The decree requires that 34
PRPs perform remedial action at the site,
estimated to cost $50,000,000. This remedial
action work consists of incinerating barrels at the
site, capping the landfill, constructing and
operating a groundwater pump and treat system,
and remediating site soils. The decree- also
requires that the settling PRPs reimburse EPA for
its oversight costs.
The Metamora Landfill site is a 160 acre site that
operated from the rnid-1950's until 1980. Both
municipal and industrial waste was disposed of
at the site. EPA has incurred response costs at the
site in excess of $30 million dollars. Because the
decree does not recover EPA's response costs
incurred prior to the entry of the decree, EPA's
final action at the site is recovery of these costs.
LH. Baxter Superfund Site. (Weed Cal.1: On
September 30, 1993 EPA entered into an
administrative consent order for 92.5% of EPA's
past costs ($2,324,381,10) incurred at the J.H.
Baxter Superfund site located in Weed,
California. This is Region IX's first use of
Alternative Dispute Resolution (ADR) in a
Superfund context and was proposed for use here
as part of the Superfund Improvements Initiative.
The site is located on the northeastern margin of
the city of Weed, Siskiyou County, California,
and was listed on the NPL in 1989 due to the
presence of arsenic, creosote, and PCP in site soils,
surface water runoff, and groundwater. The PRPs
to this settlement include J.H. Baxter & Co.
(Baxter), International Paper (IP), Roseburg
Forest Products Co. (Roseburg), and Beazer East,
Inc. on behalf of the American Lumber & Treating
Company Interests (Beazer East, Inc., Chicago
Bridge & Iron, Inc., and the Aluminum Company
of America.) In late July 1991, negotiations
between EPA and the PRPs failed to result in
settlement for performance of the remedial
design/remedial action (RD/RA) under the model
consent decree. To avoid a repetition of the
unsuccessful RD/RA negotiation experience,
Region IX proposed mediation for cost recovery
negotiations to assist in coalescing the PRP group
and reaching settlement with EPA. With the use
of mediation, EPA was able to reach settlement
quickly. The PRPs continue to perform the cleanup
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(valued at $40 million and consisting of extensive
soil and groundwater remediation) under a
CERCLA §106 unilateral order issued in August
1991.
In the Matter of Beazer East. Inc..: On March
1, 1993, EPA issued a unilateral administrative
order for remedial design and remedial action
(RD/RA) for the Koppers Texarkana Superfund
site located in Texarkana, Texas. The 62 acre
site is contaminated primarily with polynuclear
aromatic hydrocarbons (PAHs). The site was a
wood treatment facility from 1910 until 1961.
The respondent, Beazer East, Inc., is performing
the RD/RA pursuant to the unilateral order. The
congressionally-mandated residential
subdivision buyout (approximately $5.6 million)
and the relocation of residents were completed
in July 1993. The unilateral order, among other
items, requires demolition of structures, removal
and disposal of structures and debris in an
appropriate facility, and removal and treatment
of contaminated soil and groundwater.
U.S. v.Town of Bedford, et al.: On March 18,1993
a consent decree was entered by the U.S, District
Court (S.D.N.Y.) pursuant to which six
defendants agreed to pay a total of $1.17 million
in settlement of pasts costs incurred at the
Katonah Municipal Well Superfund site. This
consent decree settles an action which was filed in
1990. One of the defendants, the Town of Bedford,
performed the remedial design pursuant to a 1988
EPA consent order, and completed the remedial
action construction under the terms of an earlier
consent decree. The five remaining defendants are
the owners or operators of dry cleaners or owners
or sublessors of property where a dry cleaner was
located. These defendants had previously"
declined to participate in or contribute to cleanup
work at this site.
U.S. v. Arthur Belanger et aL.CW.D. Mo): On July
16, 1993, a consent decree was lodged in court in
settlement of this cost recovery litigation
initiated in March, 1991. Under the terms of the
consent decree, defendants and third-party and
fourth-party defendants (59 of 63) will pay
$1,215,880 for past response costs incurred by the
government at the B & B Salvage site located in
Warrensburg, Missouri. The settling defendants
include utility companies, corporations, state
agencies, and two federal agencies.
In late 1987, EPA responded to a report submitted
by the City of Warrensburg that PCB
contamination had been discovered at the B & B
Salvage Company facility. EPA discovered that
B & B Salvage had accepted several hundred
scrap PCB and PCB-contaminated transformers in
1985 and 1986 from the Martha C Rose Chemicals
Company located in Holden, Missouri. EPA's site
investigation revealed considerable PCB
contamination in soils and buildings at the one
acre B & B Salvage facility. EPA conducted a
removal action at this non-NPL site in the fall
and winter of 1987 and 1988, resulting in the
expenditure of response costs.
EPA has taken prior enforcement actions at the
Holden site, which is currently being cleaned up
by a generator steering committee representing
over 700 generators of PCBs taken to the site.
Three individuals went to prison as a result of
EPA's criminal prosecution.
BFI-Rockingham Landfill Superfund Site: The
BFI-Rockingham Landfill Superfund site
represents EPA's first comprehensive application
of the Superfund Accelerated' Cleanup Model
(SACM) at an NPL site in Region I. The use of
SACM expedited response activities at the site
by one to two years. Moreover, SAGM saved EPA
and the PRPs substantial transaction costs in
connection with the performance of an RI/FS and
the negotiation of an administrative order for a
non-time critical removal action.
The BFI-Rockingham site is a municipal landfill
located in Rockingham, Vermont. The settling
parties in this case include Disposal Specialists,
Inc., the owner and operator of the site, and
Browning-Ferris Industries of Vermont, Inc., the
transporter of waste to the landfill. Both
companies are wholly-owned subsidiaries of
Browning-Ferris Industries, Inc.
The BFI entities entered an administrative order
to perform the RI/FS in August 1992. During the
RI/FS, the Region recognized the opportunity to
apply EPA's new presumptive remedy for
municipal landfills. In February 1993, the PRPs
agreed to initiate an engineering evaluation/cost
analysis (EE/CA) for the source control component
of the remedy. Based upon the EE/CA, EPA issued
an action memorandum in September 1993, which
selected a multi-layer landfill cap as the non-
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time critical removal action. With the ultimate
goal of constructing the cap in the summer of 1994,
the Region conducted non-special notice
negotiations on an extremely expedited schedule,
reaching agreement with the BFI subsidiaries by
the end of September. The Region has continued
this expedited approach during the design phase
of the work. The environment will benefit from
prompt implementation of the source control
measures, which will reduce further migration of
contaminants to the environment, most notably
groundwater.
This case represents a highly successful use of
enforcement and response program initiatives to
expedite cleanup at all stages of a Superfund case,
including site investigation and development of
response alternatives, negotiation of a response
agreement, and performance of the action itself.
In re: H. Browji Superfund Site; On November 20,
1992, EPA entered into its first pre-ROD de
minimis settlement with 145 PRPs, in accordance
with the June 1992 Early De Minimis Settlement
Guidance, and CERCLA §122(g). According to the
administrative order on consent, the settling PRPs
are required to pay their volumetric share of the
U.S.' past response costs and estimated future
response costs for remediating the H. Brown
Superfund site. In addition, these parties will
pay a settlement premium of 1.0 (i.e. a 2.0
multiplier) for the estimated future response costs
for the remediation. Approximately $650,000 was
recovered by EPA in this settlement, which
represents 50% of past response costs to date.
The H. Brown site, located in Walker, Michigan,
had been placed on the NPL on March 29,1985. It
is contaminated with lead, antimony, cadmium,
copper, chromium, and nickel as a result of the H.
Brown Company having cracked, shredded, and
scattered battery casings over the entire site
during its lead reclamation activities. On
September 30, 1992, EPA issued a Record of
Decision which called for the following remedy
components; solidifying, in place, the
contaminated surface and subsurface soil and
sediments in a cement-like form; constructing a
multi-layer cap over the solidified soil;
surrounding the solidified soil with a
containment wall; collecting, treating, and
discharging groundwater and surface water from
the shallow aquifer; and demolishing buildings
which are contaminated.
In the Matter of Caldwell Trucking Site: In 1993,
EPA issued two administrative orders for
performance of remedial action and groundwater
investigative work at the Caldwell Trucking site
in Fairfield, New Jersey. On April 19, 1993, the
first order was issued to eleven respondents,
requiring them to perform the remedial action for
the contaminated soils and sludges at the site.
The respondents are the current site owner, OKON
Corporation, the site operator, Caldwell Trucking
Company, and nine generators of hazardous
substances found at the site. These parries had
declined to perform the remedial action
voluntarily, but work under the order has
commenced. The remedial action is valued at up
to $25 million.
On June 29,1993 Region II issued the second order
to fifteen recipients requiring them to conduct
design investigation studies of the contaminated
ground water plume at the Caldwell site valued
at about $1 million. The additional parties
include a second site owner, Baureis Realty Inc.
U.S. v. Charles George "Rucking Company. Inc.. et
al. (D. Mass.): On May 24,1993, the court entered
a civil consent decree in which 54 settling
defendants agreed to pay $34,713,000 for response
costs at the Charles George Land Reclamation
Trust Landfill Superfund site in Tyngsboro,
Massachusetts and $1378,350 for natural resource
damages in a cost recovery action brought under
CERCLA. The original lawsuit was filed in 1985
seeking past and future costs, responses to
information requests, and access to the site for the
remedial action. The court granted summary
judgment on noncompliance with the information
requests and imposed civil penalties. The court
also issued an access order.
The landfill disposed of hazardous wastes and
also accepted commercial, municipal, and
domestic wastes. Estimates are that the full 69
acre site contains about four million cubic yards of
refuse. The site cleanup consists of three Records
of Decision: ROD I issued December 29, 1983 to
install a permanent waterline connecting
Tyngsboro to City of Lowell water system which
began operation on October 12,1988; ROD II issued
July 11, 1985, was to cap the landfill (which was
completed in October 1990); and ROD III issued
September 29, 1988, to treat groundwater,
leachate and landfill gases, which is presently
being implemented.
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.*»
Chevron Chemical Company Site. (Orlando
Fla.h On January 25, 1993, an administrative
order by consent (AOQ for the RI/FS for the
Chevron Chemical Company site in Orange
County, Orlando, Florida was entered into by
Region IV and Chevron Chemical Company. This
site is unique in that it has been chosen as one of
the Region's pilot SACM projects. In the spirit of
SACM, Chevron agreed to conduct the RI/FS and
pay all EPA's past and oversight costs incurred
with respect to the site although the site has not
been finalized for the NPL, Further, to keep the
project moving along, Chevron agreed to conduct
the RI/FS in only three hundred days.
The analytical results from the samples collected
during the site investigation indicated the
presence of pesticides, benzene, toluene, xylene,
chlordane, naphthalene, and metals. In addition,
the analytical results for the ground water
samples indicated the presence of metals,
benzene, trichlorethylene, xylene, pesticides,
toluene, and chlorobenzene.
The purpose of the RI/FS is to investigate the
nature and extent of groundwater contamination
at the site. Chevron has submitted its
preliminary findings from the RI.
U.S. v. Chrysler Corp.. et al. (E.D. Mich.); On June
4, 1993, the court entered a CERCLA RD/RA
consent decree under which the settling
defendants will clean up PCB contamination at
the Carter Industrials Superfund site in Detroit,
Michigan and pay about $3 million in past costs,
The total cost of the clean up is estimated to be
$24,000,000. Settling defendants include Chrysler,
Ford, GM, Michigan's two public utilities, and
the City of Detroit. Unusual features of the
decree include provisions for EPA to perform some
of the work, and a special covenant not to sue in
accordance with §122(0(2) of CERCLA.
The Carter Industrials facility was the site of a
scrap metal business where electrical equipment
was stripped of valuable metals while dielectric
fluids, including PCB oils, were allowed to drain
onto the ground. These activities resulted in high
levels of PCB contamination on the facility
property and in an adjacent residential area. In
1986, EPA undertook a removal action to
consolidate PCB-contaminated soils and debris
and contain it on-site. The site was placed on the
NPL in 1989. On September 18,1991, EPA issued a
Record of Decision, calling for low temperature
thermal desorption of PCB-contaminated soils.
U.S. v. Ciba-Geigy; (D. N.J.) On September 30,
1993, the EPA signed a judicial consent decree
between the U.S. and Ciba-Geigy Corporation.
The decree was lodged on October 18,1993. Under
the proposed settlement, Ciba-Geigy agreed to
conduct remedial design, remedial action,
operation and maintenance and post-remediation
monitoring for the first operable unit
(groundwater) for the site, located in Toms River,
New Jersey. The estimated cost of the work is
approximately $60 million. Ciba-Geigy also
agrees to pay all unreimbursed response costs,
approximately $10 million, incurred by the
United States for operable unit one and operable
unit two (source areas), resulting in a total
settlement value of approximately $70 million.
The site is on the NPL. Groundwater at the site is
contaminated with organic and inorganic
compounds. On April 24, 1989, EPA selected a
river discharge remedy in a Record of Decision for
operable unit one. The ROD also called for
sealing contaminated residential irrigation
wells, monitoring groundwater and the Toms
River, evaluating lower portions of the aquifer,
performing studies on contaminated groundwater
to determine appropriate cleanup technologies,
and further studying of source areas. On
September 30, 1993, the Region also signed an
Explanation of Significant Differences (ESD) for
the site. The Region modified the ROD to require
the recharge of treated groundwater to the upper
portion of the aquifer underlying the site instead
of the discharge of treated groundwater to the
Toms River.
U.S. v. Jack and Charles Colbert et aL
(S.D.N.Y.)i On August 10,1993, a partial consent
decree was lodged which provides for payment of
$22,500 in civil penalties for the Signo Trading (11
Hartford Avenue) Superfund site by defendants.
Jack and Charles Colbert and four of the Colberts'
companies. The penalties arise out of those
defendants' failure to comply with a 1984
administrative order. The §106 order required
the Colberts, and others, to perform a removal
action at the site, located in Mount Vernon, New
York. A warehouse located at the site was used
by the defendants to store hazardous substances
and other items. When defendants failed to
comply with the order, EPA Region II conducted
the removal action itself. In 1992, the government
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FY1993 Enforcement Accomplishments Report
entered into a consent decree with several other
PRPs pursuant to which they agreed to reimburse
EPA for $71,000 of its past costs at the site. The
Colbert brothers served several years in prison for
charges arising out of their mishandling of
hazardous chemicals.
U.S. v. Colorado (990 F.2d 1595 (10th Cir. 1993H:
The Tenth Circuit held that, at least with regard
to a state authorized to enforce its hazardous
waste program in lieu of RCRA, the state has the
independent right to enforce state law,
administratively or judicially, at CERCLA sites
within the state's jurisdiction. More specifically,
the court held that: [1] §113(h) does not bar a
federal court from hearing a state suit to enforce a
state administrative order that addresses a
CERCLA site because enforcement of provisions of
a state-delegated program cannot per se be a
challenge to CERCLA response action. The court
also held that the state can always enforce state
law in state court anyway (to which 113(h) does
not apply.) (Here the state had ordered the Army
to submit a closure plan for an Operable Unit that
was being addressed by a $100 million CERCLA
removal action, and the state order specifically
prohibited any cleanup/closure activities unless
the state first approved); [2] NPL listing has no
effect on the application of state law; [3] There is
no conflict between the permit waiver at CERCLA
§121(e) and a state ordering a party to apply for a
state TSD or closure permit for cleanup activities
at an NPL site; [4] EPA's interpretation of
§122(e)(6) as giving EPA final authority to
determine what remedial actions can take place
at an NPL site (and thus there can be no remedial
action unless EPA approves of it) is "contrary to
the plain and sensible meaning" of the statute,
and "we do not afford it any deference"; [5] A
state may independently order compliance with
state law whether or not that law,is deemed an
ARAR; and [6] RCRA specifically authorizes a
citizen suit to enforce RCRA at any CERCLA site,
regardless of whether a CERCLA response action
is ongoing at that site (and the court suggests, but
does not hold; that a state could enforce a
delegated state law program as a RCRA citizen
suit).
U.S. v. Commencement Bay - Nearshore/
Tideflats (Sitcum Watefway).(W.D. Wash): A
consent decree for Superfund remedial action was
signed by the Port of Tacoma, Washington, on June
1, 1993, and entered in court on October 8, 1993.
The Port, which previously performed the
remedial design under an administrative order on
consent, is the sole settling Potentially
Responsible Party (PRP) and has agreed not to
pursue the site's 49 other PRPs for contribution for
this action. (They may seek contributions for
additional response actions if such actions become
necessary.) The remedial action consists of
dredging contaminated sediments and confining
them in a nearshore fill in another waterway;
the estimated cost of this work is $22 million. In
addition, the Port will perform habitat
mitigation work at two area 'wetlands to
compensate for the adverse environmental
impacts of dredging and filling. The Port will
also reimburse EPA for $1.3 million in past costs
and interest, and settle its liability for natural
resource damages by paying $12 million in
reimbursement and implementing development
restrictions on two properties. Natural resource
trustees for the site include two federal agencies,
the state of Washington, and two Indian tribes.
In the Matter of Dow Chemical Company.
Hercules Incorporated. Uniroyai Chemical
Company Ltd.: On June 22, 1993, Region VI
issued a unilateral administrative order (UAO)
to Hercules, Dow and Uniroyai for remedial
design and remedial action (RD/RA) for the
off-site operable unit at the Vertac Superfund
Site located in Jacksonville, Arkansas.
Hercules is conducting the RD/RA under the
terms of the UAO, The off-site operable unit
encompasses approximately 36 square miles, and
is located south of the Vertac Plant site.
The site is contaminated with dioxin from the
operation of the Vertac facility to manufacture
herbicides and pesticides, including Agent
Orange.
In re: Dunn City Disposal Landfill: On March 15,
1993, Region V issued a unilateral administrative
order, pursuant to CERCLA §106, to Waste
Management of Wisconsin, Inc. for performance of
the remedial design and remedial action
(RD/RA) at the City Disposal Landfill site in
Dunn, Wisconsin. The remedy for the landfill
requires a cap, soil vapor extraction of VOCs, and
groundwater remediation, with an estimated cost
of approximately $14.7 million.
The site is a former landfill operated by a
corporate predecessor of Waste Management of
Wisconsin, Inc. The order was solely issued to
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Waste Management, despite the presence of other
viable PRPs due to the significantly stronger
evidence against Waste Management (which is
the former site operator and transporter, and
current site owner). Issuing the order to Waste
Management alone, also exercises the Region's
enforcement discretion and may deter other PRPs'
from relying on the assumption that EPA will
issue an order to all PRPs following the close of an
unsuccessful RD/RA negotiation.
Enterprise Recovery Systems Site. (Byhalia, Ms);
On September 27, 1993, EPA executed an
administrative order on consent (AOC) with 29
PRPs regarding a removal action at the Enterprise
Recovery Systems site in Byhalia, Marshall
County, Mississippi. Respondents included
Carrier Corporation, Exxon Company, U.S.A.,
Borg Warner and Teledyne. The AOC required
the respondents to perform the removal action
and pay all past and future costs, including
oversight. The removal action required under the
order includes arranging for a permanent
alternative potable water supply to local
residents whose wells are contaminated by
releases from the site, disposing of waste
materials stored in on-site drums and tanks, and
disposing of contaminated soil and debris.
The Enterprise Recovery Systems, Inc. facility
operated from approximately 1979 to 1991 as a
fuels blending and solvent recycling facility. The
facility ceased operations in October 1991 when
its insurer canceled insurance coverage after
discovering significant soil and groundwater
contamination. Hazardous substances included
benzene, xylene, toluene, tetrachloroethylene,
trichloroethylene, naphthalene, acetone, 1,1,1-
trichloroethane, bis(2-ethylhexyl)phthalate,
methyl ethyl ketone, ethanol, methanol,
isopropyl alcohol, oils, methylene chloride,
perchloroethylene, and chlorinated waste water .
In the Matter of Ewan Property Si{g: On
September 30, 1993, Region II finalized an
CERCLA §122(h) administrative agreement with
16 PRPs for 100% of past costs incurred at the
Ewan Property Superfund site, plus interest, from
the date of the demand letter, $2,438,295. EPA
performed RI/FS work and issued RODs for the
two operable units at the site, located in Shamong
Township, NJ. EPA identified nineteen PRPs
which received unilateral administrative orders
to perform RD/RA work on the first operable unit
at the site. This unit includes the removal of the
drums, sludges and soil which contain the source
contamination. The PRPs are currently in
compliance with those orders and are completing
the remedial design work. In August 1991, EPA
requested reimbursement of its past costs. The
PRPs initially challenged EPA's cost
documentation, but finally agreed to pay 100% of
the past costs plus interest.
In the Matter of Fibers Public Supply Wells: On
July 26, 1993, four PRPs paid the Superfund
$150,000 (plus interest) in full reimbursement for
the remaining past costs at the Fibers Public
Supply Wells Superfund site. Under a consent
decree entered in district court in January 1993,
those PRPs had agreed to reimburse EPA for
$436,815.79 of its $586,815.79 in past costs, in
addition to agreeing to implement a pump and
treat and excavation remedy and reimburse EPA's
future response costs. $150,000 in past costs were
"carved out" of that settlement because the Puerto
Rico Industrial Development Company
(PRIDCO), the owner of the property and a PRP,
refused to enter into the settlement Subsequent to
entry of the decree, EPA made it clear to PRIDCO
that a cost recovery action would likely be filed
against it if the $150,000 in remaining past costs
was not paid by September 1993. PRIDCO
thereafter entered into negotiations with the
other PRPs. The result was an agreement among
themselves whereby the four settling PRPs would
reimburse EPA for the unpaid balance of the costs
in exchange for PRIDCO's commitment to provide
in-kind services valued at $465,000.
U.S. v. Fleet Factors Corp.. (S,D. Ga.); A bench
trail was held, in district court concerning Fleet
Factors Corporation's liability for costs incurred
in the removal action conducted at the
Swainsboro Print Works (SPW) facility in
Swainsboro, Georgia. EPA conducted a two-step
cleanup of the site which is not on the NPL. From
February 6 to 26, 1984, EPA addressed abandoned
chemicals that had been left at the site. These
chemicals included sodium cyanide, xylene, and
varsol. While the cleanup was underway, the
presence of asbestos was confirmed at the site.
EPA undertook the second part of the response
action, the removal of the asbestos, in 1984.
On May 12, 1993, following the bench trial, the
court entered a Memorandum and Order finding
Fleet jointly and severally liable under CERCLA
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In 1984, EPA placed the site on the NPL,
identifying 59 hazardous substances in the site's
soil and groundwater. A ROD was signed on June
30,1989, calling for both a landfill cap and ground
water treatment. The consent decree was filed in
December 1989, however, in January of 1990,
Container Corporation of America (CCA), a party
with the fourth largest allocated share for a
nongovernmental PRP for the site, filed a Motion
to Intervene.
The Court heard oral arguments regarding the
Motion to Intervene in October of 1989. DOJ filed a
Motion to Enter the Consent Decree in January of
1990. Upon the referral of a cost recovery case,
DOJ filed a complaint against CCA in December
of 1992. CCA Hied a third- party complaint
against eight signatories of the pending consent
decree. In September of 1992, DOJ filed a Motion
to withdraw the U.S.'s opposition to CCA's
intervention on a limited bases. Upon permitting
CCA limited discovery on the "fairness of the
settlement," on March 30, 1993, the court entered
the decree, excluding CCA, With the decree being
entered, the eight third-party defendants will
receive contribution protection against CCA,
thereby terminating CCA's third-party claim.
U.S. v,Jgould, et al.: In April 1993, a judicial
consent decree was entered in U.S. District Court
(S.D.N.Y.) concerning the Marathon Battery site.
The settling parties are Marathon Battery
Company (Marathon), Gould Inc. (Gould) and the
U.S. on behalf of the Department of the Army
(Army). Under the terms of the settlement, EPA
will recover $9 million in past costs and interest,
$1.5 million in future costs, and oversight costs for
the remedial action (RA) of up to $3 million.
Gould has agreed to perform the RA in accordance
with EPA's design and approved value
engineering modifications and to conduct long-
term monitoring and maintenance at the site. EPA
estimates the remedial action cost at $91 million,
making the total value of the settlement package
nearly $110 million.
For the remedy, Marathon will contribute $4
million and the Army $37 million in addition to
their previous cash settlements (in » prior partial
consent decree) of $5.25 million and $5.6 million,
respectively. This is a complete settlement of all
EPA's claims against the viable PRPs, and a
resolution of complicated legal issues. EPA
agreed to forgive $7.28 million in past costs and
interest in the settlement, and thus recovered
about 94% of its costs. The case raised interesting
and complicated questions of law because
Marathon and Gould were released from liability
for "discharges" from the site in a 1974 settlement
with the U.S. under the Refuse Act of 1899.
Hamilton Island: • Region X negotiated a
CERCLA § 120 Agreement with the US Army
Corps of Engineers for a comprehensive
investigation and remediation of the site. This
is the first such agreement with the Corps of
Engineers nationally, and it includes an
expedited schedule for the cleanup. The final
cleanup Record of Decision will be completed in
1996.
In the. Matter of Imperial Oil/Champiorj
Chemical Site.: EPA received payment in the
amount of $251,685 as reimbursement for a
removal action performed at the Imperial
Oil/Champion Chemical Superfund site in New
Jersey. The action consisted of the removal and
disposal of a pile of PCB-contaminated waste
filter clay sludge. The money was disbursed from
an escrow account maintained by the Monmouth
County Probation Department This escrow
account was established as a result of a plea
bargain agreement to settle a criminal action
between the Monmouth County Prosecutor's Office
and the Imperial Oil Company, Champion
Chemical Company, and three corporate officers.
The purpose of the account was to reimburse
parties that performed environmental cleanup
actions at the site. Region II had notified the
Monmouth County Prosecutor's Office that EPA
had performed this work and requested payment.
International Depository Inc. Removal Site: In
the International Depository, Inc. (IDI) removal
case, EPA achieved an administrative cost
recovery settlement under CERCLA §122(h) for
$1.1 million with 56 potentially responsible
parties. Additionally, after EPA had conducted
initial response measures, it issued the site owner,
the Rhode Island Department of Transportation,
a unilateral administrative order under CERCLA
§106 for approximately half of the necessary
cleanup activities.
The IDI site is located near the Narragansett Bay
in North Kingstown, Rhode Island. The site was
an abandoned hazardous waste transfer facility
that contained approximately 3,000 drums of a
wide range of improperly stored waste materials.
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FY1993 Enforcement Accomplishments Report
§107(a)(2), 42 U.S.C. § 9607(a)(2), for all response
and enforcement costs (totaling $1,046,541.70)
associated with the removal of hazardous
substances at the site. The court found that,
although Fleet was a secured lender to SPW, and
the Lender Liability Rule did apply, the actions
of Fleet's agents voided the statutory exemption
for secured creditors. Fleet hired Baldwin
Industrial Liquidators (Baldwin) to auction off
SPW's equipment and inventory. After the
auction, Fleet allowed Nix Rigging Company to
salvage the remaining equipment and machinery.
It was the actions of Baldwin and Nix that
voided the protection of the Lender Liability
Rule and of the statutory exemption.
In the Matter of Frontier Chemical: On
September 30,1993, EPA issued an administrative
order on consent to some 275 PRPs requiring them
to conduct a removal action at the Frontier
Chemical Superfund site, located in Niagara
Falls, N.Y. The response action is to include the
removal of over 4,000 drums of waste from the
site, as well as 6,700 pounds of laboratory
chemicals. The work is estimated to cost about
$4.7 million. The consent order also requires the
consenting PRPs to reimburse the U.S. for $519,219
in past costs incurred by EPA and also pay certain
additional costs which have been and will be
incurred by FJA thereafter.
On September 30,1993, EPA Region II also issued a
parallel unilateral administrative order to
approximately 103 PRPs which had declined to
sign on to the consent order. The unilateral order
requires the recipients to cooperate and
participate with the settling PRPs in conducting
the same response actions as those required by the
consent order.
Frontier Chemical Waste Process, Inc. operated a
business at the site from 1974 until 1992, which
was primarily engaged in hazardous waste
processing and management, including
wastewater treatment, fuels blending and bulking
for off-site disposal. During the course of its
operations, Frontier was the subject of numerous
orders issued by the New York State Department
of Environmental Conservation for regulatory
violations. EPA initiated response action at the
site in December 1992.
Fuels and Chemicals Site, (Coaling, Alabama):
On July 20, 1993, EPA Region IV, executed
"participate and cooperate" administrative
orders for a PRP-lead removal action at the Fuels
and Chemicals site in Coaling, Alabama. The
site currently is not listed on the NPL. The
"participate and cooperate" orders represent an
innovative approach to CERCLA enforcement and
PRP-lead removals. The orders consist of an
administrative order on consent with a group of 11
cooperating PRPs, and a unilateral
administrative order (UAO) issued to three PRPs
who chose not to cooperate with EPA and the PRP
Steering Committee,
The orders were the first in the nation to use the
"participate and cooperate" language developed
in conjunction with DOJ. The UAO requires the
respondents to work with the cooperating PRPs
and either perform or pay for part of the work at
the site. Use of the "participate and cooperate"
UAO improved the sense of fairness in the
Superfund process, and the progress of AOC
negotiations with the cooperating PRPs, by
requiring response action of the recalcitrant PRPs.
The Fuels and Chemicals, Inc., facility operated
from 1981 to 1992 as a fuels blending and treating
facility and was abandoned in September, 1992.
The site includes 31 tanks with a total capacity of
840,000 gallons and approximately 1,200 drums.
The approximately 800,000 gallons of hazardous
substances stored on-site in unstable and leaking
tanks and drums included: lead, chromium,
mercury; perchloroethene> trichloroethane,
methylene chloride, and 1,1,1-trichloroethane.
The cooperating PRPs continue the removal
activities at the site as required in the AOC. In
anticipation of additional removal activities at
the site, EPA and the PRP Steering Committee are
working together to identify additional PRPs.
EPA also is evaluating options to enforce the
orders against respondents who did not comply.
U.S. v. General Refuse, et. al. (S.D. Ohio): On
March 30, 1993, the court entered a RD/RA
consent decree for the Miami County Incinerator
site. The decree embodies an agreement between
the Agency and 120 governmental and industry
PRPs. It calls for the settling defendants to
conduct 100% of the selected remedy and to pay
50% of future oversight costs. The settling
defendants are also required to pay up to 50% of
past response costs after the U.S. uses "best
efforts" to recover past response costs from non-
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Numerous containers stored in the open bays were
exposed to the elements, and there was evidence
of drum leakage. In some instances, incompatible
wastes were stacked three drums high, posing a
threat of explosion and fire.
EPA staged, sampled, properly containerized the
waste materials and disposed of the extremely
hazardous and sensitive materials. Pursuant to
the unilateral administrative order, the site
owner is currently disposing of the remaining
drummed wastes, excavating contaminated soil,
and decontaminating the buildings and storage
bays.
The settling parties under the administrative cost
recovery agreement are generators and
transporters of hazardous substances sent to the
site. The agreement provides that the settlors
will pay EPA $1.1 million, the majority of EPA's
costs. In an effort to facilitate settlement, the
Region developed a volumetric ranking list
which the PRP group used to develop its internal
allocation scheme. The majority of the settlors
are commercial entities. A number of federal,
state and local entities also participated in the
settlement.
U.S. v, |.Jones Hggygling fN.D. III.): On July 8,
1993, the court entered judgment for costs and
treble damages exceeding $10 million against four
defendants in the CERGLA cost recovery cases
involving the I. Jones Recycling, Clinton Street
site in Fort Wayne, Indiana. The judgment order:
(1) holds Aqua-Tech, Inc; I. Jones Partnership;
Frederick J. Cook, Jr.; and Thomas J. Hanchar
jointly and severally liable for $784,400.77 in
anum response costs and prejudgment interest on
those costs; and (2) holds each of the latter three
defendants liable for treble damages of
$9,663,884.94 for their failure to comply with
three unilateral orders issued for removal actions
at the site.
The I. Jones Recycling, Clinton Street site
collected, stored and treated a wide variety of
hazardous substances from 1980 through
September, 1986. The facility was closed after a
chemical fire emitted potentially toxic fumes and
required evacuation of adjacent areas, leaving a
vast number of containers holding hazardous
substances, and widespread contamination within
the buildings and soil. EPA filed its cost recovery
complaint on March 25, 1991, against all
owner/operators of the site and against the one
viable generator (Aqua-Tech) that had not
entered into administrative cost recovery
settlements for the site.
EPA issued unilateral orders on October 14; 1986
and September 3, 1987, requiring the owner/
operators to perform extensive removal actions.
The owner/operators did not comply and EPA
performed removal actions costing over $2.3
million. By the time EPA was ready to initiate
the final phase of site cleanup, the Agency had
identified a group of over 150 generators who had
sent waste to the site. On July 27,1988, EPA issued
a unilateral order to all generators and
owner/operators. A group of generators complied
with that order incurring costs in excess of $3
million.
In the Matter of Kin-Buc Landfill: On November
11, 1992, EPA issued a unilateral administrative
order in connection with the Kin-Buc Landfill site
in New Jersey. The order requires that eleven
respondents, responsible parties at the site,
perform the RD/RA for the second operable unit
(OU2) component of the remedy which was
selected in the ROD issued by Region II in
September, 1992. The work required under OU2
includes excavation of PCB contaminated soils
and sediment from an area known as the Edmonds
Marsh located next to one of the fills at the site.
The excavated material is to be placed onto the
landfill before it is capped. OU2 also requires
that mitigation measures be carried out in
wetlands at the marsh area from which the PCB
contaminated material is to be excavated. The
estimated cost for the OU2 work is $4.1 million.
The respondents were all owners and/or operators
of the landfill.
Lindane Dump Site. (Harrison Township, Pa): On
June 28, 1993, in a consent decree entered by the
court (E.D. PA), Elf Atochem North America, Inc.
agreed to reimburse EPA 100% of its past costs
totaling $238,451 and implement the site remedy
totaling $15 million. Additionally,.the decree
introduces an alternative dispute resolution
provision providing for non-binding mediation for
issues arising under the additional work and
periodic review provisions of the decree, the first
such language in a judicial decree.
Mathis Brothers/South Marble Top Road
Landfill NPL Site. (Walker County, Georgia): On
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at the Mathis Brothers/South Marble Top
Landfill NPL site in Walker County, Georgia.
The order, which was issued after no PRPs were
willing to enter into a consent decree with EPA
after a 120-day negotiation period, requires the
PRPs to implement the remedial action/remedial
design (RD/RA) for the site. The remedial action
selected by EPA provides for excavation and
incineration of landfill wastes and associated
soil, excavation and bioremediation (an
innovative technology that will be tested during
remedial design) of contaminated subsurface soil,
and trenching to collect contaminated
groundwater for off-site treatment. The remedy is
estimated to cost $12.98 million.
The site is a landfill which was operated under a
state permit between 1974 and 1980. Wastes at
the site include wastes from the production of
dicamba and benzonitrille by Velsicol Chemical
Corporation, and wastes from the latex and
carpet industry. Hazardous substances to be
addressed at the site include benzonitrille,
dicamba, phthalates, dichlorobenzene, and
styrene.
In the Matter of ILLS, v. Morrison-Quirk Grain
Corporation, FAR-MAR-CO Subsite. (D.Neb.):On
April 19, 1993, the court entered a CERCLA
§107(a) cost recovery consent decree for costs
incurred in connection with the FAR-MAR-CO
subsite of the Hastings Groundwater
Contamination site. The decree required the
defendant to pay $2,150,000 for investigative
costs incurred by the U.S. through December 31,
1990, and entered declaratory judgment for all
future costs. The defendant has already paid the
past costs as required by the consent decree.
The consent decree settled an action that the U.S.
had commenced on December 31, 1988. The U.S.
had won a summary judgment motion on liability
and was set to go to trial on the amount of costs
owed to the government. Because the costs were
incurred in connection with a subsite of the
Hastings Groundwater megasite, numerous cost
allocations were performed to arrive at a figure
representing the FAR-MAR-CO subsite costs.
U.S. v. Motorola.Inc.. (D. Ariz.)-. On August 11,
1993, the court entered the second and final
remedial design/remedial action (RD/RA)
consent decree for the North Indian Bend Wash
(NIBW) Superfund site. Together with the first
settlement, this consent decree provides for
private sector cleanup of the entire NIBW site,
including the restoration of the area-wide aquifer
and provides for the recovery of 95% of EPA's past
costs and all future costs.
The Indian Bend Wash Superfund site (IBW)
encompasses approximately 13 square miles in
Scottsdale and Tempe, Arizona and consists of two
study areas - NIBW and South Indian Bend
Wash. The NIBW site encompasses ten square
miles and includes land developed for
residential, commercial, and industrial uses. The
site was placed on the NPL in 1982 due to the
presence of VOCs in the groundwater.
The decree requires the defendants to conduct the
RD/RA for the vadose zone and shallow
groundwater as specified in the NIBW Record of
Decision (ROD) dated September 12, 1991. The
estimated value of this work, including EPA
oversight costs, is $11 million to $14 million.
These remedial actions build upon the remedy
and corresponding first consent decree for deep and
middle-depth groundwater selected in the 1988
Scottsdale Groundwater Operable Unit ROD.
The decree also requires the payment of EPA's
past response costs of $5,066,048,44, as well as
future oversight costs which are estimated at $2.5
million.
|p re: Mu^kego Sanitary Landfill: On December 9,
1992, EPA issued a unilateral administrative
order to 46 potentially responsible parties at the
Muskego Sanitary Landfill Superfund site in
Muskego, Wisconsin. This order requires the PRPs
to perform a source control operable unit remedy
that includes: establishing site controls;
upgrading the landfill cap; instituting a leachate
control system; and performing soil vapor
extraction of a specified fill area. EPA selected
this remedy in its June 12,1992 Record of Decision
(ROD), and estimated that the remedy would
cost $12,9 million.
After issuance of the ROD, EPA and the PRPs
cooperated to expedite the cleanup process so that
the PRPs could begin performing the cleanup in
1993. In particular, the parties agreed that EPA
would forego the special notice process and
simply proceed to issue a unilateral order after
making an effort to identify additional PRPs.
EPA also helped facilitate an ADR process to
help the PRPs develop an allocation process.
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Establishing this process before compliance with
the order was required helped EPA obtain broad
participation by the PRPs; 42 of the 46 PRPs
agreed to perform the work.
National Electric Coil/Cooper Industries Sife,
Day hoi t, KenL): A unilateral administrative
order for performance of an interim action remedy
was issued to Cooper Industries, Inc. on December
15,1992, after the respondent refused to conduct
the remedy voluntarily. Cooper operates an
equipment rebuilding and remanufacturing
facility at the site in Dayhoit, Kentucky. The
site is located on the flood plain of the
Cumberland River and is in close proximity to a
small mobile home park. Cooper Industries, a
subsidiary of McGraw-Edison Co., acquired the
facility from National Electric Coil in 1987.
Solvents used to clean industrial equipment were
released to the ground surface on the banks of the
Cumberland River and through drainage pipes
leading from the site to the river. PCB laden oils
were also released.
In February 1989, the Kentucky Department of
Environmental Protection (KDEP) detected high
concentrations of volatile organic compounds
mainly trichloroethane, dichloroethene, xylene
and toluene in residential wells near the site.
The site was proposed for the NPL in July 1991
and listed in October 1992. Cooper is conducting
the interim response activities concurrently with
RI/FS and post-RI/FS activities.
U.S. v. City of Newport, et al.f (E.D, Ky.h On
December 29, 1992, the court entered two civil
consent decrees representing a partial settlement
of the CERCLA cost recovery litigation for the
Newport Dump Superfund site, Wider, Kentucky.
The decrees involve five of the six potentially
responsible parties (PRPs) named in the original
complaint. The settlement collectively provides
for the recovery of $2.4 million, representing
approximately 50 percent of the total past costs,
and also provides for the performance of
operations and maintenance activities.
On July 26, 1993, the U.S. Bankruptcy Court
lodged a proposed Stipulation of Settlement
addressing the U.S. claim against the remaining
PRP, G. Heileman Brewing Company, Inc. Under
the Stipulation of Settlement, the U.S.1 claim
against the company will be allowed as an
unsecured claim in the amount of $800,000.
U.S. v. Niagara Transformer Corporation: On
January 20, 1993, a consent decree was lodged
which partially resolved this 1989 action
concerning the Wide Beach Development
Superfund site. The decree reflects a Ae minimis
settlement with six of seven defendants in the
lawsuit. The complaint was filed against the
settling de minimis defendants and Niagara
Transformer Corporation. Under the decree the
settlors will pay a total of $575,000 to the U.S.,
and $57,500 to the State of New York, in
reimbursement of past governmental site
expenditures. Region II intends to pursue the
action against Niagara Transformer Corporation,
and will continue to investigate whether
additional persons may be liable for remaining
response costs at the site, estimated to be between
$32 and $40 million dollars.
LfA^fr Qiban Industries. Inc.: On April 23,1993,
an amended default judgment was entered by the
U.S. District Court (W.D.N.Y.) imposing
penalties upon a defunct corporation, Orban
Industries, Inc., under CERCLA §106 for failure to
comply with a Region II administrative order in
connection with the Madison Wire Site Superfund
site located near Buffalo, N.Y. The court
awarded $925,000 in penalties. Previously, in
August, 1992, the court had awarded EPA
$500,000 in response costs and $1.1 million in
punitive treble damages for failure to comply
with the order; however, the court did not award
penalties pursuant to CERCLA §106(b) at that
time. The court had erroneously read CERCLA as
requiring proof of willfulness in order to impose
§106 penalties. In this amended order, the court
corrected that error.
U.S. v. Ottati & Goss (D.M.H.); IMCERA Group
Inc. v. EPA, et. al (D. NH); In September of 1993,
the United States lodged a civil consent decree in
which IMCERA Group, INC. (IMCERA) and 355
contribution action defendants (sued by IMCERA)
agreed to pay to the U.S. and the State of New
Hampshire a total of $4,000,000 as a "cashout"
settlement, effectively ending approximately 13
years of litigation. The settlement resolves
claims initially brought under RCRA §7003,
seeking injunctive relief for cleanup of the site,
and under §§310 and 309oftheCWA. In 1983, the
U.S. amended the complaint to seek injunctive
relief and recovery of past costs under CERCLA
§§106 and 107 arising from the disposal of
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different chemicals were found at the site,
including volatile organic compounds , acid and
base/neutral compounds, metals, cyanide, and
PCBs.
The site is located in the town of Kingston in
southern New Hampshire and was placed on the
NPL in September 1981. On January 16,1987, EPA
issued a ROD outlining remedial action for the
site. The ROD called for on-site incineration of
contaminated soils and sediments and for a pump-
and-treat system for contaminated groundwater.
Under the terms of settlement, the remedy and
associated operation and maintenance for the site
will be completed by the U.S, and the State.
In the Matter of Philmar Electronics: On
September 30, 1993, EPA entered into an
administrative cost recovery agreement with the
United States Air Force (USAF) regarding the
Philmar Electronics site located in Morrisonville,
New York. Under the Agreement, the USAF will
pay EPA $864,493 in reimbursement for all of
EPA's unreimbursed past response costs with
respect to the site as of July 30, 1993. The
agreement will become effective after a public
comment period is held, pursuant to CERCLA
§122(i). USAF is the major source of the
hazardous substances at the site. For a number of
years, 55-galIon drums containing hazardous
substances, such as cleaning solvents, used oils and
jet fuel, were picked up from the Plattsburgh Air
Force Base and disposed of at the site. The past
costs covered by the agreement were incurred in
connection with a removal action performed by
EPA at the site.
U.S. v. Purqlator Products Company. Inc.: On June
17,1993, a judicial consent decree was entered by
the U.S. District Court (W.D.N.Y.) concerning the
Facet Enterprises Superfund site. Purolator
Products Company, Inc., the current and a prior
owner and operator of what is referred to as the
Facet Enterprises Facility, executed the decree.
The consent decree requires Purolator to
implement the remedy selected by EPA Region II
for the site, estimated to cost about $4.8 million.
In addition, Purolator will pay $625,174.09, plus
interest, for past response costs incurred by EPA at
the site, and make payment to the United States
of future response costs that will be incurred in
overseeing the implementation of the remedy.
Redwing Carrigiff. Inc. (Saraland) Site.
(Saraland, Ala); On July 16, 1993, EPA issued an
UAO for RD/RA against ten private parties to
cleanup the Redwing Carriers, Inc. (Saraland)
Superfund site in Saraland, Alabama. The
Redwing Carriers, Inc. site is located at 527 U.S.
Highway 43 in the City of Saraland. From 1961
to 1971, Redwing Carriers, Inc., operated a
trucking terminal at the site using the property to
maintain, clean and park its fleet of trucks and
tank trailers, which transported chemicals,
asphalt and other substances. During the
cleaning process, residual portions of the
substances transported in the trucks were released
untreated to the ground. AKZO Chemical, Inc.
and Olin Corporation used Redwing to transport
hazardous materials in tanker trucks residual
portions of which were disposed of at the site.
A low income housing apartment complex was
constructed on the site in 1972. Saraland
Apartments, Ltd, the current owner, rather than
removing the contamination, contracted with the
Meador Construction Company who graded the
property, burying pools of tar and spreading the
contamination over the entire site.
The UAO was issued to Saraland Apartments,
Ltd, its general partners. Roar Company and
Robert Coil, and its limited partners who exercise
pervasive control over the partnership, Hutton
Advantaged Properties and H/R Special. Also
included in the UAO are Redwing Carriers,
AKZO, Olin, Meador, and the managing agent,
Marcrum Management Company, Redwing and
AKZO gave notice of their intent to comply with
the UAO. The partners of Saraland Apartments,
Ltd., and Olin responded that they would not
comply. Neither Marcrum nor Meador submitted
a response.
In the Matter of Richardson Jiill RoAd Landfill
Sjle: During 1993, EPA issued two unilateral
administrative orders and one consent order
regarding the Richardson Hill Road Landfill
site, located in Sidney, New York. The first
order, issued unilaterally on June 21 to Amphenol
Corp., requires the company to deploy absorbent
booms and pads to remove an organic sheen from a
pond at the site. The second order, issued on
consent on September 22 to Amphenol and
Allied /Signal, Inc., requires the respondents to
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install in-house water treatment units at certain
residences near the site. The third order, issued
unilaterally September 30, also to Amphenol and
Allied /Signal, requires respondents to excavate
and remove waste material and contaminated soil
.and debris from a waste oil pit and two other hot
spots located within the landfill. The third
order also requires the respondents to design and
implement a system that can contain and remove
light non-aqueous phase liquid from the
groundwater and that can also remove and treat
free phase liquid.
The purpose of the system is to mitigate the
migration of contaminated water into the "South
Pond" at the site, which is on the NPL. A RI/FS
is presently being conducted by the respondents
under an administrative consent order issued in
1987. The response actions required by the third
1993 order are not intended to serve as a
permanent remedy, but rather as an interim or
"early" response action.
In the 1960's, the Bendix Corporation contracted
with an independent contractor to dispose of
hazardous substances, including waste oil, at the
site. Respondents are successors of the Bendix
Corp., and therefore liable as PRPs under
CERCLA. The work required under the three 1993
orders is estimated to cost about $434 million.
U.S.. et
& Haasr gt al.: On January
19, 1993, a consent decree was lodged with the
U.S. District Court (D.N.J.), partially resolving
this action concerning the Lipari Landfill, the
highest scoring site on the CERCLA National
Priorities List. In this decree, the U.S. and the
State of New Jersey settled the liability for work
done pursuant to the first two Records of Decision
(RODs) and two components of the third ROD at
this site. The settlors were the three primary
defendants at this site: Rohm & Haas, Owens-
Illinois, and ManorCare. These companies have
agreed to a cash-out valued at nearly $53 million.
These three defendants sent or transported an
estimated 92% - 98% of the hazardous wastes
dumped at the site. The first ROD required the
construction of a containment wall keyed into the
, underlying clay, enclosing a 16-acre site. The
second ROD required batch-flushing of the
contained area and treatment of the wastewater.
The two components of the third ROD covered by
this settlement relate to the installation of a
French drain and an extraction system for an
underlying aquifer and the treatment of
wastewater collected from these systems.
On September 27, 1993, EPA issued an unilateral
administrative Order requiring Rohm & Haas to
perform those portions of the third ROD not
settled in the January consent decree. ROD III
addressed the "off-site" portions of the Lipari
site. In addition to the elements described above,
that ROD also provided for excavation and
treatment of marsh soils by low temperature
volatilization, excavation of sediments from two
streams adjacent to the marsh and from the
downstream Lake Alcyon, with treatment of
those sediments if necessary. Under this order,
Rohm & Haas is required to implement all of
these remaining components of the ROD III
remedy, work valued at approximately $48
million. When added to the cash-out under the
consent decree, the total value of these
enforcement actions exceeds $100 million.
Sapp Battery Site, Cottondale, Florida: On
September 30, 1993, EPA entered into
administrative settlements with thirteen de
minimi's generator PRPs under §122(g) of CERCLA
at the Sapp Battery Superfund site located
outside of Cottondale, Florida. The settlements
total $152,180, of which $105,746 will be applied
to EPA's outstanding past costs. This settlement
had been offered to 39 recalcitrant de minimi's
generators. In addition, five generators accepted
an earlier de minimis offer made to 25 generators.
EPA anticipates sending out two more de minimis
offers to an additional 60 generators. De minimis
generators were defined in this case as those PRPs
generating less than 0.1% of the total documented
waste disposed of at the site.
The site is contaminated with lead, acid and
battery casings. An emergency cleanup was done
at the site by the Florida Department of
Environmental Resources, in response to citizen
concerns about the high level of acid and lead in
nearby Steele City Bay. EPA conducted a
removal, RI/FS and RD in 1989-1991. The site
was listed on the NPL in August 1982. A number of
PRPs are now conducting Operable Unit One (soil)
under a consent decree which will constitute 80%
of the cleanup. No agreements have yet been
reached for groundwater remediation under
Operable Unit, Two, or the cleanup of nearby
Steele City Bay {Operable Unit Three).
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U.S. v. Shell. (C.D, Cal): On September 28, 1993,
the district court granted the Governments'
Motion for Partial Summary Judgment on
Liability against four major oil companies in the
McColl Superfimd site cost recovery action. The
McColl Site is located in Fullerton, California,
and has been on the NPL since 1983. The 22-acre
site contains over 100,000 cubic yards of highly
acidic refinery sludge dumped in the early 1940's.
The sludge, which contains a variety of
hazardous substances including benzene, toluene,
and arsenic, periodically seeps to the surface,
emitting high levels of sulfur dioxide and posing
a threat of dermal contact.
The court ruled as a matter of law that Shell,
Union Oil, ARCO, and Texaco are liable for past
and future cleanup costs as arrangers for disposal
under CERCLA §107(b){3). The court also ruled
that McAuley LCX Corporation, a small
privately-held company, is liable as the owner of
the site property, rejecting an innocent landowner
defense. The U.S. and the State of California, as
co-plaintiffs, are seeking over $25 million in past
costs. EPA recently selected a remedy valued at
$80 million. The four oil companies are
performing remedial design activities pursuant to
unilateral administrative orders.
In granting summary judgment on liability, the
court rejected the oil companies' "act of war"
defense. This is the first reported decision
interpreting the defense, which the court held
should be narrowly construed. The oil companies
claimed that disposal occurred as part of a
government-directed war effort. The court also
granted the Governments' motion to bifurcate the
case and permit the cost phase to proceed
immediately. Plaintiffs have now filed a
summary judgment motion for these past costs.
The court further stayed the companies'
counterclaim against the U.S., ruling that the
contribution action should not interfere with the
replenishment of theSuperfund.
Silresim Superfund Site (D. Ma.): On April 27,
1993, the court lodged the consent decree for
the Silresim Superfund site. The consent decree
consisted of a global settlement with 223
parties, 179 of those parties were de minimis
settlors. The parties paid approximately $41
million for a cash-out settlement. The decree
also included a re-opener if the remedy costs
more than $54.8 million.
The Superfund site is located in Lowell, Mass.
The Silresim Chemical Corporation operated a
chemical waste reclamation facility on the
site. The original facility consisted of
approximately 4.5 acres, however the extent of
contamination includes approximately 16 acres
and groundwater contamination. The major
problem at the site is contamination by dense,
non-aqueous phase liquids in the groundwater.
U.S. v. Snmggler-Durant. Inc. (823 F. Supp. 873 (D,
Colo. June 8, 1993)): The court held that the
defenses provided by CERCLA §107(b) are
exclusive, and struck all of the equitable defenses
asserted by defendant Pitkin County.
Additionally, the court held that defenses which
alleged that the governments* response costs were
not "cost effective or prudent" or "reasonable"
were not valid affirmative defenses because the
only issue as to recoverability of response costs is
consistency with the National Contingency Plan.
The court also held that the defendant could not
challenge the listing of Smuggler Mountain
Superfund site on the NPL as an affirmative
defense in this action.
U.S.v. Texaco Inc.. (CD. Cal): On August 22,1993,
the court entered a consent decree for performance
of the remedial design and remedial action at the
Pacific Coast Pipeline Superfund site in Fillmore,
California . Under the consent decree, Texaco, Inc.
and its subsidiary Texaco Refining and Marketing
Inc., the sole PRPs, will construct and operate a
soil vapor extraction system and a groundwater
extraction and treatment system as required by
the ROD. The primary contaminant of concern is
benzene, which is present in the soil and
groundwater at the site. The remedial action is
expected to cost $4,000,000. Under the decree, the
defendants have agreed to reimburse California
for past response costs and the U.S. for future
response costs. Texaco, Inc. paid EPA's past costs
pursuant to an administrative order on consent for
the RI/FS. EPA has the lead for the site and the
California Department of Toxic Substances
Control is the support agency. The Pacific Coast
Pipeline Superfund site was listed on the NPL on
October 4, 1989. Texaco, Inc. is currently
conducting the remedial design of the remedy in
accordance with the consent decree.
U.g, v. Union Scrap Iron & Metal, ej q|t (D.
Minn-l: On January 14-15, 1993, the court entered
three consent decrees under which a total of 65
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FY1993 Enforcement Accomplishments Report
defendants will pay approximately $1,450,000 of
EPA's past response costs for the cleanup of the
Union Scrap Iron & Metal facility in
Minneapolis, Minnesota.
The Union Scrap facility was the site of a battery
breaking business. During its operation, the
company purchased spent lead acid batteries from
numerous customers and reclaimed the lead plates
by cracking open the plastic battery cases and
extracting the plates. This process highly
contaminated the soil at the site and seriously
threatened human health and the environment.
In 1986 and 1988, EPA undertook several remedial
activities to remove the lead-tainted soil and
debris. Then, in 1989, the Agency initiated
CERCLA §107 proceedings against various
defendants in order to recover the approximately
$2.1 million expended during the remediation.
Allocation issues, however, were extremely
difficult since Union Scrap had declared
bankruptcy in 1985, and few site records were
available from which to construct a waste-in list.
A mediator was subsequently employed to help
resolve these matters after the conclusion of
discovery and while the case was on the court's
trial call.
U.S. v. WJjj. Case & Sons Cutlery €04 On
November 30, 1992, the U.S. District Court
(W.D.N.Y.) entered a consent decree in this action
against W.R. Case & Sons Cutlery Co. (Case).
The decree required Case to pay EPA $700,000
toward EPA's past and future response costs at the
Olean Well Field NPL site and also required Case
to pay a $50,000 civil penalty to EPA as a result of
Case's noncompliance with a unilateral
administrative order issued in 1986 under §106(a)
of CERCLA. That order, issued to six PRPs
including Case, required respondents to carry out a
remedial action at the site. The remaining five
respondents complied, but Case declined to
participate. In 1988, the government filed a cost
recovery action against all six PRPs to recoup its
past expenditures, and also included a count
against Case for civil penalties for its
noncompliance with the order. The five other
PRPs agreed to pay $1,175,000 of EPA's past costs
in a partial consent decree entered in August, 1989.
The 1992 decree settles the remainder of the 1988
lawsuit.
Western Processing Superfund Site: As part of
the remedial action for the Western Processing
Superfund site in Washington State, a consent
decree entered on October 16, 1986 required the
PRPs to clean up a creek located on site. The
site falls within the boundaries of the City of
Kent, which demanded that the PRPs obtain a
city permit for the creek cleanup. EPA and the
PRPs responded that, under federal law, no
permit was required for this work. The city
then issued a stop work order to the PRPs, and
the PRPs ceased creek cleanup activity. In"
response, EPA obtained a declaratory judgment
from the federal district court stating that no
permit was required to perform the cleanup
work The city then lifted its stop work order,
and cleanup proceeded.
Westingrtouse Superfund Site, (Sunnyvale Ca,): In
September 1993, EPA issued a unilateral
administrative order (UAO) for RD/RA to
Westinghouse Electric Corporation for design of
the groundwater treatment system for the
Westinghouse Superfund site. The UAO
terminated an administrative order on consent
(AOC) for remedial design negotiated in 1992,
except for provisions related to payment of .EPA
response costs. Westinghouse, the sole PRP
identified for the site, submitted a timely Notice
of Intent to Comply in November 1993. Issuance of
the UAO is anticipated to allow remediation of
soil contamination to proceed prior to the final
approval of the design for groundwater
remediation. Termination of the AOC will allow
some remedial action to begin prior to the
completion of all remedial design tasks without
the complications of overlapping and potentially
conflicting orders.
The Westinghouse Site was formerly used to
manufacture electrical transformers and is
currently used to manufacture steam generators,
marine propulsion systems, and missile launching
systems for the Department of Defense. Releases
of PCBs, volatile organic compounds and fuel
compounds have resulted in soil and groundwater
contamination. The October 1991 Record of the
Decision for the site requires remediation of PCBs
in the soil, containment of PCB contamination in
groundwater in the source area where dense non-
aqueous phase liquids are present, and cleanup of
all other groundwater contaminants throughout
the site.
Whitemoyer Laboratories Superfund Site.
(M.D.Pa.): On November 4, 1993, the consent
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*.'m*r
decree between the Estate of Clarence W.
Whitmoyer, Sr. and the United States for
reimbursement of $2.9 million in past costs was
entered in court. This past costs-only settlement
is significant in that the PRP's estate agreed to
reimburse the U.S. to resolve the PRFs CERCLA
liability for the Whitmoyer Laboratories site in
Jackson Township, Pa.
Earlier, on February 9, 1993, the consent decree
between SmithKline Beecham Corporation and
Rohm and Haas Company and the U.S. for
reimbursement of $250,000 in past costs and
implementation of the $124 million RD/RA was
entered in the U.S. District Court (M.D.Pa.). This
combined settlement, in excess of $127 million,
represents a 98.3% settlement of all site-related
costs for one of the largest Superfund cases
Toxic Substances Control Act
(TSCA) Enforcement
The Toxic Substances Control Act (TSCA)
allows EPA to regulate commercial chemicals—
both those already in the market (§6) and new
chemicals prior to market entry (§5
premanufacture notice), as well as chemicals for
import arid export (§§12 and 13). The act also
requires reporting about chemicals and their
effects (§8) and chemical testing (§4),
One focus for FY 1993 was to emphasize
workplace compliance with chemical controls,
More than 500 individual chemicals are subject
to specific EPA administrative orders requiring
workplace or manufacturing controls. Under a
Memorandum of Understanding (MOW, EPA and
the Occupational Safety and Health
Administration (OSHA) share information and
target joint inspections to detect noncompliance.
The program also continued to emphasize PCB
compliance and enforcement priorities, including
disposal and commercial storage facilities, other
high risk facilities, underground mines, pulp
mills, and natural gas pipelines. Inspections of
in-progress asbestos abatement activities was
also a priority.
TSCA enforcement efforts focused on
assuring accurate and timely data about
chemical substances, specifically those
involving adverse health or environmental
. The program is currently implementing an
initiative regarding TSCA §8(e) data
(information that indicates the chemical may
cause significant risk) under the CAP
(Compliance Audit Program) program in which
323 companies, representing more than 1,000
futilities, are auditing records for 8(e) data. The
program targets subpoenas and conducts field
investigations of selected firms that are not part
of the CAP program.
As part of the national Data Quality
Initiative, the program conducted inspections at
chemical testing facilities in order to ensure that
such facilities were in compliance with
established Good Laboratory Practices, including
the use of a Quality Assurance Program and
proper record keeping. It also targeted non-
submitters of §5 premanufacturing notices
(PMNs),
In the international enforcement arena,
the program ensures that- chemicals imported
into the United States are properly registered
under the TSCA Chemical Inventory, In FY 1993,
EPA continued working with the U.S. Customs
Service to evaluate customs declarations and
shipping manifests to ensure compliance,
Following the recent favorable decision of the
U.S. Court of Appeals for the Second Circuit
affirming EPA's ability to enforce both TSCA
and Customs requirements in unified enforcement
actions, EPA expects to step up border patrols for
non-conforming substances.
Section 313 of The Emergency Planning
and Community-Right-tO'Know Act .(EPCRA)
requires certain categories of industrial
manufacturers to provide annual Toxic Release
Inventory (TRI) data regarding the total
emissions level of certain toxic chemicals from
subject facilities. These data are now used by all
Ike agency's media compliance programs to help
target inspections and identify settlement
conditions. The program will expand enforcement
against non-reporters. As part of the national
Data Quality Initiative, the program ensures
that TRI data are timely, comprehensive, and
accurate by prosecuting violations of false or late
reporting discovered during data form reviews or
facility inspections.
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During the last several years, the TSCA
program has been in the forefront of agency
efforts to foster innovative enforcement
approaches, including environmental auditing
and pollution prevention. During FY 1992,
almost eighty percent of all pollution
prevention-oriented SEPs were negotiated as
part of EPCRA 323 administrative settlements.
During FY 1993, the TSCA program continued to
negotiate administrative consent orders which
emphasized source reduction.
Briggs Aiiociates. Ing,: A consent agreement and
order was signed on December 30,1992, concerning
Briggs Associates, Inc.'s alleged failure to conduct
adequate air clearance monitoring at numerous
asbestos abatement response actions at various
local education agencies (public schools) in New
Hampshire. The violations were alleged
pursuant to Title II (the Asbestos Hazard
Emergency Response Act of 1986) of TSCA,
The settlement consists of a $34,000 cash penalty
payment plus a supplemental environmental
project (SEP) valued at $23,800. The SEP required
Briggs Associates to offer free asbestos handling
training to employees of local education agencies.
The training sessions are to be conducted over a
twenty-four month period beginning January 1,
1993, until the value of the training project as a
whole has reached at least $23,800. The
settlement also required Briggs to return to the
locations of violation to conduct the required
sampling.
In the Matter of Chemical Waste Management
Inc.: On December 7, 1992, EPA executed a
settlement of an administrative enforcement
action initiated in 1989 against CWM for
violations of the TSCA regulations governing
disposal of PCBs. The complaint alleged that
CWM operated a mobile PCB disposal unit that
had an incorporated heating unit which had not
been approved by EPA. Use of the unit with the
heater resulted in disposal of PCBs at
temperatures greater than those specified in the
EPA Approval. CWM has agreed to pay a cash
penalty of $300,000 and to expend $730,000 on two
supplemental environmental projects. CWM will
purchase an emergency response vehicle and other
related equipment for Niagara County, New York
and will train local volunteers in their use. The
vehicle and equipment were to be donated to
Niagara County, a county with heavy chemical
transportation and major hazardous waste
facilities. CWM has also developed and
implemented a household hazardous waste
collection and disposal project in Niagara County,
which includes outreach programs to apprise the
community as to the nature of household
hazardous wastes.
Ciba-Gelgy: The Environmental Appeals Board
approved a consent agreement between Ciba-
Geigy and EPA. Pursuant to this agreement,
Clba-Geigy conceded to EPA's conclusions of law
and fact as alleged in the complaint and agreed to
pay a cash penalty of $62,000 and perform a
TSCA §5 audit to ensure compliance with EPA
regulations. The stipulated penalties resulting
from this voluntary audit are capped at $1
million. This case was part of the TSCA §5
initiative filed between December 17-18,1992.
Cressona Aluminum Company; In FY 1993, a
judicial consent decree was entered into under
TSCA. This decree was an innovative solution
which addressed the improper use, storage, and
disposal of PCBs at the Cressona Aluminum
Company. As part of the decree, Cressona is
required to remediate the PCB contamination at
the 115 acre facility. All plant equipment,
including the hydraulic and wastewater
treatment systems, will be decontaminated, the
concrete floors will be removed where necessary,
and the plant outfalls will undergo a toxics'
reduction evaluation to eliminate the discharge
of PCBs into the Schuylkill River.
Dow Corning: Dow Corning, of Midland
Michigan, agreed to pay a penalty of $46,000 and
perform a SEP in settlement of a TSCA §5 PMN
and TSCA §13 case. EPA filed a complaint
against the company in 1992 for $172,000. The
Agency provided a 50% reduction in the proposed
penalty for timely and voluntary disclosure of the
violation; 15% for good attitude and a 15%
reduction for the SEP. The SEP involves the
installation of a spill control measure which
involves a skimmer attached to the pipe that
leads to one of the outfalls in the Carrol ton
plant's NPDES permit which in turn leads from
this plant to the Ohio River. Dow Corning
certified that the project would cost a minimum of
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FY1993 Enforcement Accomplishments Report
$500,000 and the project would capture spills of
chlorosilanes or silicones. Dow Corning will begin
the construction of the project within one month of
the effective date of the agreement,
In re: General Electric Company: On November 9,
1992, EPA filed a consent agreement and final
order (CAFO) in settlement of EPA's
administrative action against General Electric
Company, GE Aircraft Engines. Pursuant to the
CAFO, GE must pay, after offset in consideration
of its having spent over $272,750 .on a
supplemental • environmental project, a $1,000
civil penalty and maintain compliance with the
requirements of TSCA.
Region V filed a complaint on August 18, 1989,
alleging in two counts that GE had violated
TSCA's PCB requirements, 40 C.F.R. §§ 761.20(a)
and 761.40(a)(7), by failing to reduce the PCB
concentration in its Building 703 Cell Five
hydraulic test stand to less that 50 parts per
million by July 1,1984; by failing to mark the test
stand; and by improperly using a PCB
contaminated oil/water separator and drainage
collection system. After EPA filed its complaint,
GE investigated other areas of the facility and
found extensive PCB contamination of, among
other things, compressor systems and piping. As a
result of this discovery, GE is completing a
comprehensive cleanup of PCB contamination at
its Evendale, Ohio, facility at a cost exceeding
$5,000,000.
In addition to the above mentioned corrective
action, GE has undertaken an extensive pollution
prevention supplemental environmental project.
Specifically, GE has removed several score of
PCB transformers not required by law. While GE
could legally continue to use these transformers,
removal significantly reduces the risk of
accidental discharge of PCBs to the environment.
Hall-Kimbrell Environmental Services Inc.:
Since February 1990, EPA Regions II, V, VII, VIII,
and IV filed more than 20 civil administrative
penalty actions against this Lawrence, Kansas,
company for violations of the requirements of the
Asbestos Hazard Emergency Response Act
(AHERA) and its implementing regulations. The
violations most often cited against Hall-
Kimbrell, one of the nation's largest asbestos
consulting services, consisted of the failure to
identify all materials suspected of being asbestos-
containing during Hall-KimbreH's inspections of
primary and secondary schools pursuant to
AHERA. Other alleged violations included the
failure to properly prepare asbestos management
plans, also required by AHERA, for certain school
districts in Regions V and IX.
All of these cases against Hall-Kimbrell have
been settled in the past year. In total, the
settlement of these 20 cases included $445,000 in
penalties. Prior to settlement, Hall-Kimbrell
provided EPA with documentation that it had
already spent more than $5,000,000 during the
course of negotiations to address problems with
asbestos inspection reports and management
plans. All of the settlements require Hall-
Kimbrell to revisit schools with deficient
asbestos management plans.
Halocarbon Products Corporation: This TSCA
administrative civil penalty action is one of the
few cases involving alleged violations of the
substantial risk reporting requirements of §8(e) of
TSCA. The case arose from a chemical release
incident exposing two Halocarbon employees at
the company's Hackensack, New Jersey facility,
which resulted in one fatality. The settlement
includes a payment of $60,000, and the conduct of
a TSCA §8
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FY1993 Enforcement Accomplishments Report
administrative complaint issued in December
1990 against the Housing Authority of the City of
New Haven, a federally funded low-income
housing provider. The complaint alleged
violations of regulations governing
polychlorinated biphenyls (PCBs) uncovered
during an inspection, in June, 1990, of an
unoccupied, seven-building, low-income housing
complex known as the Elm Haven Extension
Housing project in New Haven. Specifically, the
Housing Authority was cited by EPA for failing to
properly dispose of PCBs, failing to maintain
records concerning PCBs, and failing to properly
mark and store PCB transformers. The Elm Haven
complex was built in the 1950s and demolished in
1990.
The settlement requires the Housing Authority, in
lieu of paying a penalty, to spend at least
$112,000 on an environmental compliance program
designed to protect public housing residents from
future environmental risks through better
identification and reporting of potentially
hazardous conditions involving pollutants such as
PCBs, asbestos, pesticides, and rodenticides.
Specifically, the settlement requires the Housing
Authority to hire an environmental consultant to
train Housing Authority personnel at all levels in
recognizing and reporting environmental
problems, as well as to perform an environmental
audit of all 32 Housing Authority properties.
This sort of settlement, known as a supplemental
environmental project, permits those targeted for
EPA enforcement to offset penalty payments with
environmentally beneficial expenditures not
required by law.
This settlement evidences EPA's commitment to
principles of environmental justice and reduces
the environmental risks to the low-income
tenants. Because of the age and condition of
available housing stock, such tenants arguably
face potential hazards from pollutants commonly
associated with such housing such as asbestos,
lead paint, pesticides and rodenticides.
Kennecott Utah Copper (Utah).: On November 3,
1992, Kennecott Utah Copper and the EPA agreed
to settle a complaint issued by the Agency on
December 30, 1991, for violations of TSCA,
CERCLA, and EPCRA in the proposed penalty
amounts of $1,129,000, $22,500, and $269,850
respectively, for a total proposed penalty of
$1,421,350. The respondent agreed to a cash
payment of $480,000 and to purchase an upgraded
emergency computer system valued at $70,000 for
the Salt Lake County Local Emergency Planning
Committee. As a part of the settlement, the
respondent agreed to remove and properly dispose
of all transformers containing fluids with PCB
concentrations of 50 ppm or more. A significant
cash payment was insisted upon by the EPA to
emphasize the seriousness of the violations. This
complaint corresponds to an instance of the
ubiquity of PCB use by the mining industry. The
nationwide use of PCBs in the mining industry and
the need for regulation has been a concern for some
time.
Lonza, tec^ A consent agreement and consent order
(CACO) was approved by the Environmental
Appeals Board on August 5,1993 in which Lonza,
Inc. (Lonza), agreed to pay a civil administrative
penalty of $240,640 for violations of §5 and P of
TSCA. In 1988, Lonza self-disclosed that it had,
on two occasions, manufactured for commercial
purposes a potentially new chemical substance
without submitting a prernanufacturing notice
(PMN) to EPA. In 1990, Lonza self-disclosed
eighty (80) errors including 13 nonreportihg
violations, 6 under-reporting violations, and 61
over-reporting violations in the original Forms U
submitted to the EPA pursuant to the TSCA
Inventory Update Rule (IUR).
In rg; Mi|sui & Company (U.S.A.). Inc., {Houston,
Texas); A CACO under TSCA was signed on June
15, 1993, assessing a $58,500 civil penalty against
Mitsui & Company. The CACO concluded an EPA
Region VI enforcement action against Mitsui for
failing to submit to EPA by February 12, 1987,
Preliminary Assessment Information Reports
(PAIR) for two imported chemicals, as required by
§8(a) of TSCA. A PAIR is required for chemical
manufacturers and processors to report production,
use, and exposure-related information on listed
chemical substances.
PPG IndustriesJnc^: On January 14, 1993, EPA's
Environmental Appeals Board issued a consent
order settling the Agency's civil administrative
enforcement action against PPG Industries, Mazer
Chemicals Division, of Gurnee, Illinois. PPG-
Mazer was charged with failure to file
premanufacturing notices (PMNs) 90 days before
commercial manufacture of five new chemical
substances, and late submission of TSCA Inventory
Update Reports for fourteen chemical substances,
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FY1993 Enforcement Accomplishments Report
in violation of TSCA. The order requires PPG-
Mazer to pay a civil penalty of $359,550.
In the Matter of^JPuerto Rico Department of
Health, et aL: On August 27,1993, EPA issued an
administrative consent order requiring the Puerto
Rico Department of Health to pay a penalty of
$49,920. The order also includes a supplemental
enforcement project, requiring the respondent to
certify that it has retrofilled and reclassified its
four PCB transformers to non-PCB status; this
work is estimated to cost approximately $142368.
The order settles a September 1991 complaint
which alleged that the Health Department and
the Arecibo Community Health Care Center had
not timely registered its PCB transformers with
appropriate fire response personnel; did not have
records of inspection and maintenance history for
four of its transformers; had not begun cleanup of a
leaking transformer within 48 hours of discovery;
and did not have annual documents for trie
disposition of its PCBs and PCB items for a
specified period. The Arecibo Health Care
Center filed a motion to dismiss the complaint
against it and,later, for reconsideration of the
ALJ's adverse ruling. Both motions were denied.
Puerto Rico filed a motion to dismiss the
complaint and the motion also was denied.
Sanncog Industries. Inc.: In this TSCA
administrative action, the failure by Sanncor's
Leominster, Massachusetts, facility to submit
TSCA §5 premanufacture notifications (PMNs)
and a TSCA §8(b) notice of commencement (NOC)
was alleged. The consent agreement and consent
order settling this case requires payment of a
$211,050 penalty, a TSCA compliance audit by
Sanncor with stipulated penalty provisions, and
the development and implementation of SEPs
consisting of isocyanate and hydrazine closed-
loop storage and delivery systems. The
isocyanate and hydrazine closed-loop storage and
delivery systems will substantially reduce
atmospheric emissions, employee exposure and
handling, and potential spillage of isocyanate
and hydrazine used by Sanncor, and eliminate the
isocyanate/hydrazine-contaminated rinse water
generated from cleaning the transport/storage
drums which otherwise must be disposed of as
hazardous waste. These SEPs will cost
approximately $240,000, and are due to be
completed in December 1994.
Sika Inc.: Sika Inc. of Lyndhurst, New Jersey,
settled this TSCA §5 administrative civil
penalty action for $1,120,700. Sika imported
chemicals from Europe that were not registered
with the TSCA Inventory of Chemical Substances
in violation of TSCA. In the CACO executed by
the Environmental Appeals Board, Sika agreed
that it violated TSCA and is liable for the full
penalty proposed in the complaint of $6,500,000.
Due to Sika's demonstrated inability to pay the
full proposed penalty, and remain in business, EPA
agreed to a reduced payment of $1,120,700
following an exhaustive analysis of financial
records. This settlement amount is one of the
largest penalties ever collected under TSCA §5,
which requires chemical manufacturers to notify
EPA prior to manufacturing a new chemical.
Texas Eastern Consent Decree: The first
modification of the Texas Eastern consent decree
was finalized and submitted to the U.S. District
Court in Houston in June 1993. Negotiations on the
second modification to the Texas Eastern decree
regarding the integration of the Pennsylvania
Agreement with the federal decree are nearing
completion. The intent of the modification is to
harmonize the existing state and federal
agreements into one comprehensive agreement. To
date, 17 of the 49 Texas Eastern sites have been
characterized and remediated under the consent
decree for PCBs and other hazardous substances.
The period of performance of the consent decree,
estimated to cost more than $750,000,000, is from
1989 to 1999.
3M Company v. EPA (U.S. Court of Appeals for
the D.C. Circuit): On March 4,1994 the Court of
Appeals held that the 5-year federal statute of
limitations does apply to TSCA penalty actions.
In 1988, EPA had assessed a $1.3 million fine
against 3M for importing two new chemical
substances between 1980 and 1986 without
submitting a premanufacture notice (PMN) as
required by §5 of TSCA. After a hearing, the
Administrative Law Judge (ALJ) reduced the
penalty to $104,700. EPA appealed the penalty
reduction on the ground that the ALJ had not
properly applied EPA's TSCA §5 enforcement
response policy. During the appeal, 3M argued
that the ALJ erred in narrowly construing the
general statute of limitations as not applicable to
an administrative action for the assessment of a
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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,
pp Qi | Refinery (Ferndale, Wa.): EPA contended
that BP Oil had failed to provide immediate
notification of releases of reportable quantities of
sulfur dioxide in 1992 to the State Emergency
Response Commission (SERC) and to the Local
Emergency Planning Committee (LEPC) in
violation of §304 of EPCRA. A resulting consent
agreement and consent order assessed $162,000,
one of the largest EPCRA §302-312 penalties ever
collected.
Catano Region of Puerto R|CJ>: On February 24,
1993, Region II filed administrative complaints
charging four Puerto Rico companies with
failing to submit hazardous chemical
information to the Commonwealth and local
planning and emergency response organizations,
in accordance with §311 and 312 of EPCRA.
Region 11 is seeking $980,220 in total penalties
for the violations. These complaints are part
of EPA's multi-media environmental initiative
in the Catano region of Puerto Rico.
\r\ ftp Matter of Crown Metals. Inc.: An EPA
administrative law judge issued an Initial
Decision in this case involving three separate
violations of §313 of EPCRA. The complaint
alleged that respondents had failed to timely
submit its EPCRA Forms R for three chemicals it
had used at its Kenilworth, New Jersey facility.
A hearing was held in October 1989, during
which, pursuant to EPA's oral motion, the judge
entered a finding of partial liability for reporting
failures. The hearing then focused entirely upon
the amount of an appropriate penalty.
EPA sought $5,000 for each violation. An
administrative law judge ordered respondent to
pay $1,500 altogether, $500 per violation. The
judge's decision was based upon a series of earlier
decisions that similarly had rejected the
reasoning in EPA's December 2, 1988 penalty
policy, Respondent had filed the Forms on
September 15, 1988. Under the 1988 policy, a Form
R submitted after the July 1st deadline and which
is also submitted after EPA has contacted the
facility is nonetheless considered a "failure to
report" for purposes of assessing a penalty. As
had several other, administrative law judges,
this judge refused to enforce this provision. The
judge's reasoning parallels that of the other ALJs:
the size of the penalty should be proportionate to
the extent of the delay in providing the report,
regardless of whether or not there has been
intervening EPA contact with the facility.
Since the reports in question here were ten weeks
late, the judge assessed the figure that the 1988
penalty policy matrix assigns for such reports
where no EPA contact with the facility has
occurred. In addition, the judge emphasized that,
at the time of Crown Metal's violation, the
EPCRA program had just been initiated and that
respondent had undertaken "significant efforts to
determine its own responsibilities under the new
program".
Enforcement Initiatives: In June 1993, the ten EPA
Regions issued civil administrative complaints
seeking $2.8 million against thirty-seven
facilities for failures to file Form Rs under § 313
of EPCRA. The facilities cited include a wide
variety of industries, including paper
manufacturers, motor vehicle manufacturers,
makers of railroad equipment, makers of
ammunition, and many others. Region V issued
eleven administrative complaints as part of the
initiative, with total proposed penalties of over
$1 million. EPCRA §313 established the Toxics
Release Inventory and requires certain U.S.
facilities to report by each July 1 their releases
and transfers of almost 400 listed toxic chemicals.
In addition, under the Pollution Prevention Act,
those facilities must include in their reports
certain toxic chemical source reduction and
recycling activities.
Fujitsu America. fo<;t. (Hillsboro, Oregon): Fujitsu
America is a manufacturer of computer equipment.
The company was inspected for compliance with
TRI requirements in September 1992. The
inspection documented that the company had
failed to file Reporting Form R for the chemical
Freon 113 for five years from 1987 to 1991. The
company was issued an Administrative
Complaint with a proposed penalty of $77,375.
The company was given a 25% reduction in
penalty in consideration of its cooperative
attitude and the rapid nature in which it came
into compliance. A CACO was signed on August 2,
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FY1993 Enforcement Accomplishments Report
1993, which obligated the company to pay a final
assessed penalty of $58,031
.Genicom Corporation: The Environmental
Hearing Board affirmed Administrative Law
Judge Harwood's decision to assess $74,812 in
administrative penalties against Genicom
Corporation in Waynesboro, VA for its failure to
immediately report two releases of cyanide to the
authorities designated pursuant to §304 of EPCRA
and §103 of CERCLA, The Board determined that
use of the EPCRA/CERCLA penalty policy was
appropriate and that EPA properly applied that
policy.
The Board, expressly rejecting Genicom's appeal,
ruled that the §304 (a) .EPCRA requirement does
not require that actual exposure to harmful levels
of a hazardous substance must be shown to
establish an EPCRA reporting violation. "Under
EPCRA §304 (a), once a facility owner or operator
has knowledge of a release of a reportable
quantity of a hazardous substance from the
facility, the obligation to notify is triggered
without further consideration of risk." This
overturns an Order on Motion in Holly Farms. Inc.
in which the ALJ found that §304 (a) of EPCRA
requires some exposure to humans.
The Board also confirmed that each release
carries its own reporting obligation, and §103 of
CERCLA and §304 of EPCRA relate to the failure
to notify, not the failure to prevent a second
occurrence.
The Board never reached the issue of whether
notification to the State Water Control Board, as
a member of the Virginia Emergency Response
Commission, could be imputed to satisfy the §304
EPCRA reporting. The Board concluded that the
Region properly objected, in a Motion to Strike,
pursuant to 40 CF.R. § 22.30 (c), that this issue
had not previously been raised in the proceedings.
Geneva Steel Company: On August 18, 1993,
Geneva Steel Company of Orem, Utah and the
EPA reached a consent agreement resolving all
issues arising under an administrative complaint
for violations of EPCRA. The complaint and
consent agreement were filed simultaneously. The
respondent agreed to a penalty of $82,600. The
EPCRA violations dealt with the failure of
Geneva Steel to file Form Rs for five §313 toxic
chemicals, and the failure of Geneva Steel to
adequately notify customers of the presence of
toxic chemicals above de minimis levels in
mixtures and trade name products supplied to the
customers.
Golden Foods/Golden Brands; On December 15,
1992, EPA approved a consent agreement and
consent order (CACO) entered into by EPA and
Golden Foods/Golden Brands in settlement of
three administrative complaints issued for
violations of EPCRA §311, 312, and 313. The
initial complaint included violations of §103 of
CERCLA and §304 of EPCRA for failure to report
a release of sulfuric acid. The CACO provided for
payment of a civil penalty of $50,000 in addition
to several supplemental environmental projects
(SEPs).
The SEPs included the donation of $90,000 to the
Local Emergency Planning Committee (LEPC) for
a Hazmat truck and the expenditure of $120,000
on a project to install of a clarifier at the
respondent's facility. The purchase of the
Hazmat truck was a result of the Region's
coordination with the LEPC. The installation of
the clarifier is intended to reduce loading to the
Metropolitan Sewer District to which the
respondents presently discharge,
fa re; J.W. Harris Company. Inc.: On October 21,
1992, a consent order resolved an administrative
complaint against J.W. Harris Company, Inc. of
Cincinnati, Ohio. The order requires the company
to correct its past violations of EPCRA and
maintain compliance, to pay a civil penalty
$10,950, and to expend $180,000 to modify its
industrial processes. EPA estimates that these
modifications will reduce the company's total
metal fume and partkulate matter emissions for
silver by 713 Ibs/yr, for copper by 1392 Ibs/yr, for
antimony by 55 Ibs/yr, for zinc (fume) by 5,847
Ibs/yr, and for nickel by 15 Ibs/yr.
The Agency's action in this matter had begun on
December 4, 1991, with a complaint against J.W.
Harris Company for its failure to file timely the
required Toxic Chemical Release Inventory
Reporting Form, for its use of copper and silver at
its facility in calendar years 1987 and 1988, and
for its use of antimony and lead at its facility in
calendar year 1988, in violation of EPCRA §313.
In re. Inland Steel: On December 30,1992, Region
V settled its EPCRA administrative action
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against Inland Steel of East Chicago, Indiana.
Pursuant to a CAFO, Inland must pay, after offset
in consideration of its having spent $165,000 on a
supplemental environmental project, a $100,000
civil penalty and maintain compliance with the
requirements of EPCRA.
EPA's action in this matter had begun on
December 16, 1988, when the Region filed a
complaint alleging in 33 counts that Inland had
violated EPCRA §313 by failing to file Form Rs
by July 1, 1988, for its releases of toxic materials
during 1987.
The supplemental environmental project Inland
agreed to implement will reduce Inland's use of
percloroethylene, a toxic chemical, by about
200,000 pounds per year. The SEP involves
modifying a parts cleaning process and replacing
percloroethylene with a non-toxic cleaning agent
Kemira. Incorporated' On November 25, 1992,
EPA issued a CACO concluding an administrative
action against Kemira, Inc. (Kemira), of
Savannah, Georgia, to settle Title III CERCLA
and EPCRA violations pending against the
company. An administrative complaint was filed
against the company, a manufacturer of titanium
oxide for white paint production, for violations of
§§103 and 109 of CERCLA and §§304,311,312, and
325 of EPCRA. The complaint charged Kemira for
failure to notify and or provide a written follow-
up notice following a June 25, 1989, release of
sulfur dioxide that exceeded the reportable
quantity for sulfur dioxide; for failure to notify
the National Response Commission following
nine separate releases of sulfuric acid over the
1,000 pound reportable quantity limit; and for
failure to submit material safety data sheets as
well as Georgia Emergency and Hazardous
Chemical Inventory Forms for propane and
Number 2 fuel.
Kemira agreed to a $25,000 penalty and to
perform two supplemental environmental projects.
The major SEP is a pollution prevention project
that should result in an average net reduction of
approximately 135 pounds of sulfur dioxide per
hour from Kemira's Savannah facility. This
involves the installation of a $1.4 million sulfur
dioxide scrubber system in its Savannah facility's
calciner system. In addition, Kemira agreed to
make a $100,000 cash contribution to the Georgia
State Emergency Response Commission for the
purpose of establishing a Chatham County Local
Emergency Planning Committee,
In re; Eli Lilly & Company: On October 28,1992,
EPA signed a consent agreement and final order in
settlement of the an administrative action
against Eli Lilly & Company's Clinton, Indiana,
facility. The company has agreed to pay a
penalty of $99,025 for violations of EPCRA
§304(a) and (c) and CERCLA §103(a).
Region V had filed its complaint on June 9, 1992
alleging that Lilly's July 10, 1991 notifications of
its July 5, 1991 release of an estimated 21,516
pounds of dichloromethane was not "immediate"
under either CERCLA §103(a), which contains a
knowledge requirement, or EPCRA §304, which
does not. The complaint further alleged that
Lilly's EPCRA §304(c) follow-up notifications,
submitted between one week and three months
after the release, were not "as soon as
practicable." It is extremely important in EPCRA
enforcement to litigate the issue of immediate
notification, as the purpose of law is to provide
for immediate response, if necessary.
In the Matter of Mobil Oil Corp.: On August 13,
1993, Region II executed consent orders resolving
nearly all counts contained in three
administrative complaints issued against Mobil
for violations of EPCRA §304 and CERCLA §103
at its Paulsboro, N.J. facility. The orders provide
for payment of penalties totaling $35,000. One
remaining count could not be settled. An
adjudicatory hearing was held, also in August,
1993, on both liability and penalty issues with
respect to that count; a decision is pending.
The settlements arose out of Region II's successful
Motion for Partial Accelerated Decision in the
three cases, which EPA Chief Administrative
Law Judge Frazier, granted without qualification
on September 30, 1992. That motion addressed
two legal questions: (!) what is a "federally
permitted release," and (2) what is "immediate"
notification to the National Response Center
("NRC") pursuant to §103(a) of CERCLA.
What constitutes a "federally permitted" air
release was an issue of first impression. Mobil
argued that so long as a facility has an air
emissions permit, the EPCRA and CERCLA
reporting requirements do not apply to it, even
where the air release exceeds the quantity
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fY /99J Enforcement Accomplishments Report
authorized by a permit This argument was based
on the use of different statutory language to
define federally permitted air releases, as
opposed to federally permitted releases into
other media. While the statute exempts air
releases that are "subject to" a permit or control
regulation, the statute exempts releases regulated
by other federal regulatory programs, such as the
Clean Water Act and the Solid Waste Disposal
Act, only where the subject releases are "in
compliance with" permits or control regulations.
EPA attempted to clarify this apparent
ambiguity by issuing a 1988 Notice of Proposed
Rulemaking ("NPRM") which explicitly
addressed this issue. The NPRM however, does
not have the force of law, and Mobil accordingly
challenged EPA's interpretation. Judge Frazier
dedicated 31 pages of his decision to the
federally permitted release issue and found EPA's
interpretation to be eminently reasonable and
consistent with the purposes of both CERCLA and
EPCRA. He stated "I find the validity and
persuasiveness of EPA's reasoning to be
unassailable".
On the issue of whether Mobil had immediately
notified the NRC, Judge Frazier found that Mobil
delayed approximately 26 hours where the
statute unambiguously requires immediate
notification.. On this count Judge Frazier
concluded that Mobil "did not even come close to
meeting [the immediacy] requirement under the
circumstances presented in this case".
Philadelphia Newspapers, Inc. (PNI); A consent
agreement and consent order (CACO) was signed
July 15, 1993, concerning Philadelphia
Newspapers, Inc. (PNI), resolving claims that
the company failed to report the presence of
hazardous substances at its production facil ities
as required by §312 of EPCRA. The CACO
imposes a fine of $67,500 on PNI for neglecting to
prepare or submit emergency and hazardous
chemical inventory forms to state and local
environmental and public safety authorities for
1989,1990 and 1991. PNI self-confessed to EPA.
PNI, publisher of The Philadelphia Inquirer and
The^PhiladelphiaDaily News, maintains
supplies of gasoline, diesel fuel and oil-based ink
at its main plant in Philadelphia. These
materials are highly flammable and contain
hazardous chemicals such as the carcinogens;
toluene, xylene, and hexane. EPCRA requires the
owner or operator of a facility where these
materials are stored to submit an inventory form
to the state emergency response commission, the
local emergency planning committee, and the
local fire department for emergency planning and
preparedness purposes. PNI has now submitted
emergency and hazardous chemical inventory
forms for 1989, 1990, and 1991 to the proper
authorities.
In the Matter of San Antonio Shoe. Inc.. (Conway,
Ark.): In an Interlocutory Order issued on March
18,1993, Chief Administrative Law Judge Frazier
ruled on a controversial issue in the EPCRA §313
program. Section 313 requires the reporting of the
releases of certain chemicals for the Toxics
Release Inventory, The issue was whether a
facility has violated the §313 requirements and
should be penalized when the facility's best
information, at the time the Form R was required
to be submitted to EPA, indicated that it was not
required to report for the chemical, although the
facility later received clear information showing
that it should have reported. San Antonio Shoe
admitted that.it did know that acetone was in
the product, but claimed that it did not know the
percentage of acetone. EPA argued that because of
this knowledge, San Antonio Shoe knew, or
should have known, that the acetone in the
product was "otherwise used", and thus had a
duty to make an investigation about the
percentage of acetone in the product. San Antonio
Shoe claimed to have received a Material Safety
Data Sheet (MSDS) showing the acetone content
of the product being used only after the 1988 Form
R was required to be filed but before the 1989 Form
R was due. The judge ruled that after receipt of
the MSDS, San Antonio Shoe was liable for
penalties. The judge found, however, that San
Antonio Shoe was not liable for penalties with
respect to similar failures to report for 1987 and
1988 for the same substance, and he dismissed the
complaint with respect to these allegations. In
dismissing those violations, Judge Frazier noted
that San Antonio Shoe did not have information
indicating that it was required to report for
acetone for 1987 and 1988 until "long after" the
Forms R were due. He held, "there is no
requirement in the EPA regulations that
facilities, which acquire the necessary
information described in §372.30(b){3)(iii) after
the due date of a Form R, retroactively
recalculate its releases to include the additional
amounts of a toxic chemical that may have been
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FY1993 Enforcement Accomplishments Report
contained in a trade name product." In the
complaint, EPA had alleged that San Antonio
Shoe knew or should have known the
concentration of the acetone being used.
Sara Lee Corporation: On September 29, 1993,
EPA Headquarters issued a civil administrative
complaint against the Sara Lee Corporation for
self-disclosed violations of EPCRA § 304, EPCRA
§ 313, and CERCLA § 103. On the same day, Sara
Lee and EPA signed a consent agreement which, if
approved by the Environmental Appeals Board,
will settle the case for a penalty of $118,830 and
the conduct of a corporate-wide compliance audit.
The self-disclosed violations occurred at three
different Sara Lee food facilities: one in Forest,
Mississippi, one in Fort Worth, Texas, and one in
New London, Wisconsin. The violations included
failure by the Mississippi facility to report an
emergency release of ammonia to the National
Response Center and to file written follow-up
notification of that release to state and local
authorities; failure by the same facility to submit
Toxic Release Inventory forms (Form Rs) for
ammonia; and failure by the Wisconsin and Texas
facilities to submit Form Rs for ammonia, sulfuric
acid, and hydrochloric acid. The complaint
contained fifteen counts and sought a penalty of
$139,800; that amount included the maximum
allowable reductions for voluntary disclosure
under the EPCRA and CERCLA penalty policies.
In the agreement, Sara Lee has agreed to a
supplemental environmental project in which it
will audit over 140 of its manufacturing and food
service distribution facilities for compliance with
all provisions of EPCRA and §103 of CERCLA,
and pay stipulated penalties for violations
detected. The stipulated penalties range from
$8,000 for violations of EPCRA §§311 and 312 to
$20,000 for violations of EPCRA §304 and
CERCLA §103. The final adjusted $118,830
penalty includes a fifteen-percent reduction in
recognition of Sara Lee's agreement to conduct the
compliance audit. This case is the first issued by
Headquarters under EPCRA §313 or CERCLA§
103. The Agency hopes to use the settlement as a
model to encourage voluntary disclosures of
violations by other corporations.
Federal Insecticide, Fungicide, &
Rodendcide Act (FIFRA) Enforcement
States . have primary enforcement
authority under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA). EPA
issues national guidance establishing national
enforcement priorities and activities which are
implemented by the states and overseen by EPA
regional offices.
The program emphasizes protection of
the public from pesticides. Priority attention is
given to ensuring compliance with the new
farmworker protection regulations (e.g.,
specifications on times that fields must not be
entered without protective equipment and
clothing). These requirements require relabeling
for more than 8,000 commercial products.
Enforcement of relabeling requirements and,
ultimately, use restrictions is being phased in
over a two-year period beginning in FY 1993.
Training seminars for states and technical
assistance for public and private groups was
included in this effort.
Anti-microbials (chemicals that kill
viruses or bacteria, including those used in
hospitals) must be registered with EPA under
FIFRA EPA has initiated a program to test all
registered sterilant and disinfectant products
through EPA and Food and Drug Administration
(FDA) laboratories. Enforcement efforts against
violators of registration requirements continued
throughout FY 1993. The program also continued
to emphasize enforcement of major cancellation
and suspension violations; changes in a pesticide
product's classification or labeling to restrict its
sale, distribution, and/or use; and FIFRA
§B(c)(2)(B) suspensions.
As part of the FY 1993 national Data
Quality Initiative, the program targeted
inspections, tracked compliance with data
submission requirements, and continued to
emphasize inspections of registrants and
contract laboratories under the Good Laboratory
Practices (CLP) enforcement program to
identify noncompliance with established lab
practices. Pesticide testing studies submitted in
support of product registrations also are
evaluated as are adverse effects data submitted
under FIFRA § 6(a)(2).
Anti-microbial Initiative
In FY 1993, the Agency continued the
aggressive implementation of the anti-microbial
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FY1993 Enforcement Accomplishments Report
enforcement strategy through issuance of civil
.administrative complaints against major
producers of ineffective sterilant products,
including Sporocidin International (proposed
administrative civil penalty of $450,000) and
Healthcare P^mAncts of Canada (proposed
administrative civil penalty of $200,000).
Under the authority of FIFRA, EPA is working to
ensure that registered disinfectant products are
safe and effective. In the past four years, the
agency has done much to evaluate the efficacy of
hospital and medical office sterilant products to
ensure that they kill life threatening bacteria
and viruses, including tuberculosis. Hepatitis B
and HIV. FIFRA requires that, such products
that kill microorganisms be registered as
"pesticides" and that data be submitted to
demonstrate effectiveness.
In 1991, the Agency filed the first of a
series of cases against ineffective hospital and
medical office-grade disinfectants including
Sporocidin International^ Sporocidin is most
notable in that it fulfilled an Agency
commitment made to Congress to investigate the
disinfectant product industry. The Sporocidin
case is further noteworthy in that it was
effectively coordinated with the Department of
Justice, Food & Drug Administration (products
failed to sterilize medical devices, such as
kidney dialysis equipment) and Federal Trade
Commission, (false and misleading advertising
claims) which, also took enforcement or seizure
actions against the company and its products. A
settlement was reached with Sporocidin which
included payment of an $86,000 civil penalty and
cancellation of the product's registration.
Bulk Repackaging Initiative
In its ongoing efforts to prevent the
distribution and sale of contaminated pesticides,
Region VII continued its regional initiative,
commenced during FY 1992, for enforcement of the
FIFRA bulk repackaging requirements. During FY
1993, the Region filed 12 additional cases which
name both the repackager and the original
pesticide registrant as Respondents jointly liable
for the contamination of repackaged pesticides.
Two of the cases have been settled
through payment in full of the penalty proposed
in the complaints by the repackagers. In
addition, partial consent agreements have been
reached in five cases in which the repackagers
have paid total cash penalties of $6,900 and
have agreed to the performance of SEPs valued
at $343,990, in order to settle total proposed
penalties of $25,000. The SEPs include conversion
to equipment dedicated to sole use for bulk
repackaging activities, thereby eliminating the
possibility of product contamination, and the
installation of enhanced diking, storage, and
loading facilities, which minimizes the
likelihood of spills of the pesticides into the
environment.
Data Quality Initiative
On April 16, 1993, EPA issued seven civil
administrative complaints against pesticide
registrants, seeking a total of $223,000 in
penalties for violations of the FIFRA Good
Laboratory Practices Standards (GLPs), §8 of
FIFRA, and § 6(a)(2) of FIFRA. Respondents
include Clarke Mosquito Control Products, Inc.,
Riverdale Chemical Co., Rhane-Poulenc Ag. Co.,
Wexford Labs, Inc., Roussel Uclaf Corp.,
Baehringer Ingelheim, and Dupont. EPA also
issued warning letters citing FIFRA GLP
violations to other registrants and to
laboratories which conducted studies supporting
pesticide registrations. Recipients include
Cosmopolitan Safety Evaluation, Innovative
Scientific Services, CBC Biotech Laboratory,
P.A.C.E. International, Abbott Labs, Plant
Sciences, Ciba-Geigy, Nichimen America and
Stillmeadow Inc. Bio Test Laboratory.
FIFRA §14 authorizes the assessment of
a civil penalty of up to $5,000 per offense against
the registrant of a pesticide. Other persons, such
as pesticide testing, facilities, must receive a
written warning prior to being assessed a civil
penalty. FIFRA also allows for a Notice of
Warning to sponsors/registrants of studies for
minor violations, if such warning is determined
to be adequate to serve the public interest.
Failure to comply with EPA's GLPs and the
Pesticide Adverse Effects Reporting
Requirements hinders EPA's ability to
adequately assess the risks posed by pesticides
and to ensure that pesticides do not pose
unreasonable risks to public health or the
environment
Biotrol InternationaL Inc.: EPA and Biotrol
International settled two existing cases involving
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^4. __*SF
this pesticide producing establishment (1990 and
1992 civil complaints) for a $21,000 penalty. A
third civil action was issued on September 30,
1993, against Biotrol and Stepan Company
(subregistrant and registrant) seeking $15,000 and
$5,000 respectively for making unsupported
claims for the disinfectant Vacusal.
Boehringer Ingelheim Anirnal Health^ |n,gt;
Boehringer Ingelheim agreed to settle a case
charging the pesticide registrant with four counts
of falsifying information submitted to EPA by
representing that a study complied with the
FIFRA Good Laboratory Practice Standards
(GLPS), when in fact the study contained at least
four significant deviations from the GLPS.
Boehringer Ingelheim moved to dismiss on the
grounds that because it only submitted a single
statement affirming compliance with the GLPS,
there could only be one unlawful act and only a
single penalty assessed. EPA argued vigorously
that Boehringer Ingelheim made four implicit
representations of compliance with particular
requirements of the GLPS, which can be proven
false, and that each of the four violations
independently affects the quality of data relied
upon by EPA. Boehringer Ingelheim agreed to
settle the case for 80% of the proposed penalty
rather than wait for a decision by an
Administrative Law Judge.
Circle of Poison and Agricultural Pesticides:
Certain pesticides exported from the U. S. may
return to consumers as toxic residues in imported
food products. Many of the fruits and vegetables
consumed annually are produced outside the U.S.
borders. EPA, with FDA assistance, imposes
permissible tolerances for pesticide residues on
food products. FDA is responsible for analyzing
imported food while EPA is responsible for
ensuring that any exported pesticides meet
certain export requirements. In the past, beef,
winter fruits, and even coffee have been found to
be contaminated with toxic pesticides.
Existing pesticide export requirements include
bilingual labeling instructions (to aid in
providing appropriate foreign worker protection
and proper application; methods and allowable
crops) and foreign purchaser acknowledgements,
given to EPA and the nation of destination and
use. This helps to ensure that illegal or unwanted
pesticides are not illegally exported or
improperly used. In the past two years, EPA
enforcement actions against exporters have
collected over $700,000 in fines, (see Shield-Sri te
case below)
Craven-Labs: On November 20,1992, EPA issued
Notices of Suspension against Craven
Laboratories, Inc., Don Craven, Edward Peterson,
Dale Harris, and Donald Hamerly, based on their
criminal indictments for violations of the FIFRA
Good Laboratory Practice Standards. The
laboratory and each individual are suspended
from all direct federal procurement and from
participation in federal assistance, loan and
benefit programs and activities. Suspension is
temporary pending completion of investigation or
ensuing debarment proceedings.
E.I. Dupont de Nemours and Co.. Inc.. gi^k A
CAFO was signed on April 27, 1993, assessing a
penalty of $97,200 for sale/distribution of an
adulterated pesticide. The settlement represents
a partial resolution to a civil complaint issued in
1991 against E.I. DuPont de Nemours and
Company, Inc., et al, for sale/distribution of a
herbicide-contaminated fungicide, DuPont's
Benlate 50DF.
fn, K; Environmental Chemical Corporation: On
October. 16, 1992, EPA filed a consent agreement
and consent order resolving the enforcement action
brought against Environmental Chemical
Corporation of Canton, Ohio. The action had been
initiated on September 30, 1991, pursuant to
FIFRA §14(a), when EPA filed a complaint
alleging the company's failure to register an
establishment, failure to report, and misbranding.
Environmental Chemical is obligated to maintain
future compliance with FIFRA and to pay a civil
penalty of $16,000.
In the_ Matter of FPPF Chemical Co.. Inc.: On
December 16,1992, EPA settled one of its largest
FIFRA misbranding cases. The FPPF Chemical
Co. Inc. of Buffalo, New York, agreed to pay a
civil penalty of $14,400 for violating FIFRA.
After receiving evidence regarding the sale in
North Carolina of a diesel fuel product
manufactured by FPPF, the label of which made
pesticidal claims, EPA obtained sales records
from FPPF indicating additional sales of the
product. EPA issued a complaint charging FPPF, a
manufacturer fuel propellants, with four counts of
distributing and selling an unregistered pesticide
in violation of FIFRA § 12(a)(l)(A).
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U.S. v. Orkin. Inc,t EPA assisted DOJ to bring a
probation revocation action against Orkin.Jnc. for
violating the terms of a court ordered probation.
The probation was part of the sentencing in a 1988
criminal case involving pesticide misuse in which
two people died when a Galax, Virginia home
was improperly fumigated by Orkin. A
probation-revocation hearing was held on June 1,
1993, in the U.S. District Court in Roanoke,
resulting in the court finding Orkin had violated
the terms of its probation and reinstating $35,000
of the original suspended penalty. Orkin had
already paid $350,000 in penalties in the case
prior to this probation-revocation action. This
was the first time a company, not a person, had
been placed on probation for a FIFRA violation
and also the first time a company was being
accused of violating the terms of its probation,
|n re Rek-Chem Manufacturing Corporation.
(Albuquerque, N.M.): After an administrative
hearing on October 14-15, 1992, Administrative
Law Judge Frazier issued an Initial Decision
dated May 10, 1993, finding Rek-Chem liable on
all four counts and assessed a civil penalty of
$12,996. EPA had issued a FIFRA administrative
complaint on March 22, 1989, alleging that Rek-
Chem Manufacturing Corporation violated §12 of
FIFRA on four counts. These counts were:
distribution of an unregistered pesticide;
distribution of a misbranded pesticide (failure to
include an EPA Establishment Number on the
label); failure to submit required reports of
production or distribution data required under
§7(c) of FIFRA; and distribution of a misbranded
pesticide. On August 2, 1993, the Environmental
Appeals Board dismissed Rek-Chern's appeal of
the decision since the appeal was filed late.
Sporic|<|laTJ|tterij^tlonqI; This case was
commenced December 13,1991 with the filing of a
civil administrative complaint and a Stop Sale
Use and Removal Order against a sterilant
product with FDA laboratory analysis had
shown to be ineffective. This was the first case
filed in the sterilant initiative. The litigation of
the case was concluded with the signing of a
consent agreement in June 1993 and voluntarily
cancellation of "Sporicidin Cold Sterilizing
Solution." An important ruling came out of the
litigation; the judicial opinion was that the fact
that EPA and FDA had followed an abbreviated
set of laboratory procedures other than the the
full GLPs did not mean "as a matter of law the
test results are unreliable and may not be used to
support the the misbranding alleged in the
complaint." This was important to EPA which
had saved resources by eliminating many of the
non-scientific and record keeping requirements of
the GLPs in order to expedite the testing process.
It was also important for all of the ensuing cases
in the initiative because they were also based on
the abbreviated test methods.
Sporicjd|in International. Inc:. This second civil
administrative case was filed in October 1992 as a
result of a GLP laboratory audit which showed
that the respondent had failed to respect the
Stop Sale Use and Removal Order issued against
its product prohibiting the shipment of its
product. The audit uncovered not only the fact of
six violative shipments but also produced further
evidence of the product under the SSURO's
failure to act effectively as a sterilant. The
opinion in this case reiterated that FIFRA is a
strict liability statute and that any shipment of a
product in violation of the terms of the order was
a violation of FIFRA J2£1S£.
Multi-Media Enforcement
AVCO Corporation. Textron Lycomirtg? On August
19, 1993, EPA entered into the settlement of
administrative actions filed under TSCA and the
RCRA against AVCO Corporation, Textron
Lycoming of Stratford,' GT. The proposed
agreement requires a penalty payment of $151,625
($84,500 for the TSCA violations and $67,125 for
the RCRA violations). The agreement also
requires respondent to perform a SEP valued at at
least $434,800. The project consists of the facility
replacing its current method of parts cleaning
using 1,1,1-trichloroethane with an alternative
method using an aqueous based cleaner or
ultrasonic cleaning. The effects of this SEP will
be the reduction of the trichloroethane waste
stream, lessening the potential for spills and
ground contaminations and reducing the levels of
hazardous waste generated at the facility.
U.S. v. Bethlehem Steel Corporation (N.D. IIP:
On August 31, 1993, the court ordered the
Bethlehem Steel Corporation to pay a $6 million
penalty for violations of RCRA and SDWA. The
court found that a $4.2 million penalty was
appropriate for Bethlehem's RCRA and SDWA
violations of the corrective action requirements of
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m
its UIC permits, and a $1.8 million penalty was
appropriate for Bethlehem's various violations
of RCRA requirements related, to its landfill. This
is the highest RCRA/SDWA penalty assessed by
any court
The case involved Bethlehem's past and
continuing noncompliance with the corrective
action program required under the UIC permits
which EPA issued to defendant, and also based on
Bethlehem "s past and continuing failure to
comply with the applicable RCRA interim status
performance standards for a landfill and two
polishing lagoons containing the listed hazardous
waste F006.
On March 19, 1993, the U.S.' Motions for Partial
Summary Judgment was granted, and the court
ordered the injunctive relief requested by the
government. After the U.S.' request for injunctive
relief was granted, the court held a civil penalty
hearing, which was concluded on July 21,1993.
In the Matter of Burlington Northern Rajlrpa^
Company: On April 1,1993, EPA Region VII issued
a unilateral administrative order, under the
combined authorities of §7003 of RCRA, §106 of
CERCLA, and §311 of the CWA, as amended by
the Oil Pollution Act of 1990, to Burlington
Northern Railroad Company, Inc., concerning its
Hobson Yard facility located in Lincoln,
Nebraska. The order required Burlington, among
other things, to immediately cease the discharge
of oil and hazardous constituents into an inland
saline wetland located in the Hobson Yard,
Burlington's Hobson Yard stretches over four miles
on the west side of Lincoln where, among other
activities, the fueling and service of locomotive
engines takes place. A comprehensive "french
drain" storm sewer system lies beneath much of
the Hobson Yard, through which storm water run-
off is drained into the wetland area and
ultimately into a creek bordering the facility.
The wetland is heavily contaminated with oil
and chlorinated solvents resulting from the
release of diesel fuel and various chlorinated
solvents from the facility into the facility's storm
sewer system.
As a result of the issuance of the order, BNRR has
nearly completed a storm water processing
facility designed to capture and treat storm water
run-off before its discharge into the wetland area.
The order also requires BNRR to conduct a
removal of the contamination present in the
wetland area. BNRR has developed a work plan,
currently under review by EPA, proposing, among
other things, bioremediation of soils in the
wetland area.
In the Matter of Conagra, Inc.i Consent agreements
and final orders were entered during FY 1993
settling six multi-media complaints which had
been filed against Conagra, Inc. and its
subsidiaries for violations of the TSCA PCB
regulations, TRI reporting requirements under
EPCRA §313, and the accidental release
notification requirements under CERCLA § 103/
EPCRA § 304 at six Conagra facilities in Region
VII. The complaints had been filed in May, 1992,
and sought total penalties of $196,300. In
settlement of these matters, Conagra and its
subsidiaries agreed to the performance of
supplemental environmental projects at a cost in
excess of $900,000, and involving the six facilities
named in the complaints as well as six other
Conagra- owned facilities located in Region VII,
In addition, respondents are required to pay cash
penalties totaling $70,000, with penalties of
$126,300 deferred pending successful completion of
the SEPs.
The SEPs include: 1) installation of ammonia leak
detection systems at five facilities, which
systems are designed to detect ammonia leaks in
an expedient manner, thereby allowing the
facility to isolate the leak and turn off the
ammonia flow to that area more quickly than in
the past; 2) reduction of ammonia usage as
reportable pursuant to EPCRA §313 at a Conagra
facility located in Lincoln, Nebraska, to below
10,000 pounds per year (usage of ammonia during
FY 1991 for the facility was in excess of 51,000
pounds); and 3) installation of computerized
auditing systems to track all EPCRA chemicals
used at seven facilities,
US. v. City of Gary. (N.D. lad.): On October 23,
1992, the court issued an order entering the Second
Modified Consent Decree in this case, which
involves both CWA and TSCA claims. Still
pending before the court is an Agreed
Modification of Certain Dates in the Second
Modified Consent Decree, which was filed as a
part of the United States' Motion to Enter. The
government will advise the court by letter that
this Agreed Modification remains unresolved.
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The Second Modified Consent Decree is the third
decree entered into by the City of Gary and the
Gary Sanitary District since 1978. It requires Gary
to undertake and complete capital and
operational improvements at its wastewater
treatment plant, adequately fund operations and
maintenance, and pay a civil penalty of
$1,250,000. In addition, Gary has agreed to
perform a supplemental environmental project,
valued at $1,700,000, which consists of a study
and the development and implementation of a
remedial plan for sediments located in the Grand
Calumet River, covering an area of submerged
lands, from Gary's main outfall to Cline Avenue.
U.S. v. Georgia-Pacific Corporation (D. Me.); On
September 9, 1993, EPA, the State of Maine and
Georgia-Pacific Corporation lodged a consent
decree resolving a multi-media enforcement
action against Georgia-Pacific Corporation's pulp
and paper mill in Woodland, Maine. The case
was originally filed as part of EPA's pulp and
paper mill enforcement initiative in September
1992.
The consent decree settles an enforcement action
against Georgia-Pacific for violations of the CAA
and CWA at the Woodland, Maine facility.. In
1990 and 1991, Georgia-Pacific intermittently
violated air emission and water discharge
standards as well as frequently failed to comply
with its air license's monitoring requirements.
The enforcement action arose out of a joint EPA-
state inspection and review of emission and
discharge reports submitted by the company. The
consent decree requires Georgia-Pacific to pay a
civil penalty of $390,000 for these violations, to
be split between the State of Maine and the
federal government The action reflects Region I's
commitment to coordinate enforcement between
different media and between state and federal
governments. Maine was an active participant in
the development of the case and in the settlement
negotiations with the company.
U.S. v. Inland Steel (N.D. Ind.): On June 10,1993,
on behalf of EPA, the court entered a consent
decree against Inland Steel Company worth
approximately $54.5 million. The decree, which
assessed a $29.5 million penalty against Inland,
requires Inland to pay a cash civil fine of $3.5
million, and perform $26 million on
environmental projects in Northwest Indiana.
This large penalty is in addition to the estimated
$25 million Inland will spend to undertake RCRA
corrective action in an innovative phased
approach, address NPDES permit violations
through treatment upgrades and source
investigations, and eliminate air discharge
violations through- operational and design
changes at their coke batteries and no. 405 boiler.
The injunctive relief package was developed and
is being overseen by a cross-program team to insure
that the complex environmental problems at the
facility are addressed in an efficient manner.
In August 1990, EPA re-referred three previously
referred cases under the CWA, RCRA, SDWA
(UIC), and CAA to DOJ. The combined re-referral
sought the original injunctive relief and
penalties, and sought to include the previously
un-obtained sediment remediation as part of the
injunctive relief in the consolidated complaint. In
October 1990, DOJ filed this inaugural multi-
media case.
The SEPs obtained will result in measurable
environmental cleanup in NW Indiana and
demonstrate EPA bias for action. Inland will
spend $19 million to clean up contaminated
sediments adjacent to its property, and to study
and sample sediments in the Canal, Grand
Calumet River and Roxanna Marsh, a wetland
area in NW Indiana. As much as 750,000 cubic
yards of sediments will be cleaned up in this
environmental restoration project. Inland also
must spend $7 million on pollution prevention and
waste reduction projects at its facility. Through
these projects, EPA's pollution prevention goals
and the reduction of TRI emissions in the Region
will be emphasized. Overall, the holistic
approach to the negotiations allowed the case
team considerable flexibility in designing the
injunctive relief and considering SEPs. Through
the decree, the Region obtained a nationally
significant resolution of the Agency's first multi-
media complaint, thereby making an outstanding
contribution to the Agency's Great Lakes Water
Quality Initiative. •
In the Matter of The Krtapheide Mfg. Co.: The
Knapheide Mfg. Co. manufactures truck bodies at
several locations in the Midwest. One facility is
located in West Quincy, Missouri. The facility
generates paint waste. The RCRA 3008(a)
complaint, issued as part of the RCRA 1992
Illegal Operators Initiative, alleged the facility
failed to conduct a hazardous waste
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FY1993 Enforcement Accomplishments Report
determination, illegally operated a hazardous
waste treatment and storage facility without
obtaining interim status or a RCRA permit failed
to label containers as hazardous waste, retain
copies of land disposal notifications, maintain
adequate aisle space in storage areas, maintain
an updated contingency plan, maintain training
documentation, and properly manifest hazardous
waste shipments.
EPA reached a multi-media settlement with the
facility that included additional EPCRA
notification violations, for a penalty totaling
$428,533. The settlement includes SEPs to
partially offset the penalty. The initial SEP is an
environmental compliance audit, which in part
will identify and propose additional SEPs as
binding commitments under a process defined in
the settlement. The facility was extensively
flooded during the 1993 Midwest flooding, and
work has been delayed. It was featured on
national news. EPA suggested the enforcement
schedule extensions to reflect the disruption
caused by the flood. However, the environmental
audit will now be expanded to study whether
contaminants had been transported to or spread at
the facility as a result of the flood.
U.S. v. LTV Steel fS.D. New York): On April 15,
1993, the bankruptcy court approved a settlement
agreement and stipulated order, resolving
environmental claims of the U.S. for Superfund
liability as well as civil penalties pursuant to
RCRA, CWA, CAA, and TSCA. The agreement
also provides a mechanism by which the U.S.
may make claims against the reorganized LTV
debtors in the future. Pursuant to the order, EPA
will receive cash of $1.2 million plus an allowed
claim of $28.2 million for Superfund claims at 16
sites in Regions IV, V, VI, and VII, and an allowed
claim of approximately $2.5 million for pre-
petition penalty claims under RCRA, CWA, CAA,
and TSCA for facilities in Regions III and V,
In July 1986, the 66 related LTV debtors filed a
voluntary petition in bankruptcy under Chapter
11 of the Bankruptcy Code in the U.S. Bankruptcy
Court for the Southern District of New York. The
U.S. filed a multi-site, multi-region proof of
claim in November 1987. The U.S., the debtors,
and certain other interested parties appealed the
court's opinion of March 1990. In March 1990, the
court ruled that CERCLA claims arise when there
has been a release or threaten release of
hazardous substances, whether or not known to
either EPA or the debtor. In September 1991, the
U.S. Court of Appeals for the Second Circuit
affirmed the district court's decision.
Negotiations conducted since that appellate
decision have resulted in the settlement
agreement and stipulated order approved by the
bankruptcy court
U.S. v. MTD Products. lt\c. and Columbia
Manufacturing Company. Inc. (D. Mass.); The
court entered into a consent decree on August 11,
1993 with defendants MTD Products, Inc. and
Columbia Manufacturing Company, Inc. for
violations of RCRA and the CWA. MTD and
Columbia are the former and present owners and
operators, respectively, of a bicycle and furniture
manufacturing facility in Westfield, MA. The
initial action was filed on February 22, 1991, and
was amended on November 8,1991.
The decree provides that defendants pay a civil
penalty of $100,000 to the U. S. ($90,000 for
RCRA and $10,000 for CWA). In addition, the
decree requires the defendants to complete any
RCRA corrective action determined to be
necessary at the site and to assess the adequacy of
the plant's CWA treatment facilities.
Columbia Manufacturing Company, which owns
the real property at the site filed a Chapter 11
bankruptcy petition. Without this consent decree,
therefore, the site would likely lay unexamined
for years. Entry of this decree is extremely
beneficial because it will result in completion of
an RCRA Facility Investigation and corrective
action,
U.S. v, Murphy Oil USA. Inc. (E.p, LAfc
Separate air and water enforcement cases were
combined in one consent decree. On December 16,
1993, one consent decree was entered to settle two
enforcement cases under different environmental
statutes with a civil penalty of $235,000. Under
the CWA, Murphy Oil USA, Inc., at its Meraux,
Louisiana, refinery, had discharged water
pollution in excess of the effluent limitations in
its NPDES permit. Under the CAA, the same
facility had constructed two volatile organic
compound storage tanks subject to New Source
Performance Standards and had failed to provide
the required notification to EPA. The CWA
penalty was $210,000, the CAA penalty was
$25,000.
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FY1993 Enforcement Accomplishments Report
U.S. v. Sheprin-Williams. gg, {N.D. III.): On
July 16, 1993, the U.S. filed a civil complaint
against Sherwin-Williams for violations of
RCRA, the CAA, the CWA, and the Emergency
Planning and Community Right-to-Know Act
(EPCRA). In addition to demanding substantial
penalties, the government is seeking to ensure
that Sherwin-Williams attains and maintains
compliance with all environmental laws. Of
specific concern is the possibility that solvents
and heavy metals from the facility may be
leaching into the already seriously contaminated
groundwater in the area. Furthermore, the
facility may be contributing to the pollution of
nearby Lake Calumet.
The Sherwin-Williams facility that is subject to
this action is a 123-acre facility which is located
in an area where there are numerous other sources
of pollution and where the surrounding
neighborhood is largely populated with African
Americans as well as people of lower income
levels. At this facility, Sherwin-Williams
manufactures both solvent based and latex paints.
In the past, the company has also manufactured
or used resins, varnishes, lacquers, and other
substances that have contributed to the
environmental problems at the site. This action
was brought as a result of an inspection which
revealed violations including the illegal
management of hazardous waste without a
permit or interim status, the use of improperly
closed, marked, and inspected tanks and
containers, and the failure to maintain adequate
waste analysis and contingency plans. This
announcement underscores EPA's commitment to
data integrity enforcement, cleanup of the
Southeastern region of Chicago, and
environmental justice.
U.S. v. UrtjtecjTechnologies Corporation (P. CTh
On August 23,1993, a consent decree was lodged
and a second amended complaint was filed in
which United Technologies Corporation (UTC)
agreed to pay penalties totaling $5,301,910 for
violations of federal and state hazardous waste
and water pollution control laws. As part of the
settlement, UTC will implement an extensive
multi-media environmental audit at all of its 26
New England facilities.
The decree requires the payment of $3,701,910 by
UTC to the U.S. for violations of RCRA and
marks the highest civil penalty ever obtained in
a settlement of a civil RCRA action. UTC will
also pay a penalty of $1.6 million for violations
of the federal CWA and state water protection
laws, with $1,050,000 paid to Connecticut, and
$550,000 paid to the U. S.
Central to the settlement is a multi-media
environmental audit in which UTC must retain an
independent management consultant to make
recommendations concerning how UTC can alter
its management systems in order to improve its
environmental compliance. After recommended
changes to its management systems are made, the
company must retain an outside audit firm to
conduct a compliance audit. Penalties for any
violations will be negotiated in accordance with
the relevant penalty policies, and the company
will have 60 days to correct the violations.
Additional annual follow-up compliance audits
will verify that UTC is complying with all
environmental laws. The audit process is
expected to cost millions of dollars and take
several years to complete, during which time EPA
and the state DEP will continue to inspect UTC
facilities for compliance.
The violations under RCRA included improper
handling of hazardous waste, storage of
hazardous waste without a permit, inadequate
recordkeeping, inadequate training of personnel,
failure to complete waste analysis, and
inadequate groundwater monitoring. Under the
CWA, UTC was cited for the discharge of
pollutants without a permit, the discharge of
inadequately treated wastewater to surface
waters, and the discharge of water with a high
pH that caused a fish kill in the Connecticut
River.
UTC was cited for violations at ten UTC facilities
located in Connecticut: seven Pratt and Whitney
Aircraft Division facilities (in the towns of
Southington, East Hartford, North Haven,
Middletown, Rocky Hill), a Hamilton Standard
Division facility in Windsor Locks, the Sikorsky
Aircraft facility in Stratford, and the United
Technologies Research Center in East Hartford.
UTC facilities named in the suit design and
manufacture jet engines and parts, aircraft and
spacecraft components, and helicopters.
USX and EPA entered into a consent
agreement, under §3008(h) of RCRA, on April 20,
1993, in which USX agreed to conduct a RCRA
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Facility Investigation (RFI), Corrective Measure
Study (CMS), and to implement Interim Measures
at the site. .This is a multi-media case since EPA
is focusing on several media including the cleanup
and stabilization of PCB's, slag, sediments from
NPDES discharges, petroleum and other wastes
potentially threatening human health or the
environment. The USX site is a steel
manufacturing and finishing facility located in
Fairless Hills, PA, along the west bank of the
Delaware River. The plant occupies
approximately 3,000 acres of land. Steel
manufacturing and finishing operations at USX
have been active since the 1950's. The production
of coke stopped in the early 1980''s and .production
of raw steel ceased in 1991. At present the only
major steel operation at the facility involves
steel finishing.
In the Matter of Virgin Islands Alumina
Corporation: In PY 1993, Region II executed two
administrative consent orders with VIALCO,
resolving violations identified in a 1992 multi-
media inspection One order, issued in March,
1993 under §113 of the Clean Air Act, arose out
of a complaint alleging that VIALCO was
subject to, and had violated numerous federal
New Source Performance Standards. In the
settlement, VIALCO committed itself to
compliance with those requirements, and also
agreed to install a . continuous emissions
monitoring system on its aluminum oxide kiln
and comply with the standards set forth in
the Virgin Island Rules and Regulations.
VIALCO also agreed to pay a civil penalty of
$ 110,000. The other order, issued in February,
involved violations of the underground storage
tank (UST) leak detection requirements
promulgated pursuant to RCRA. VIALCO and
Texaco, Inc., a co-respondent in this matter,
agreed to pay a penalty of $12,678 for this
violation.
Federal Facilities Enforcement
In the Matter of Camp Stanley Storage Activity
and Lackland Air Force Base. (San Antonio, Tex.):
Camp Stanley Storage Activity is located just a
few miles northwest of San Antonio, Texas.
Lackland Air Force Base is located a few miles
southeast of San Antonio. Based upon information
received from the RCRA permits staff, case
development inspections (CDIs) of these
facilities were conducted in January 1993. It was
determined during the CDIs that both facilities
had existent active Open Burning/Open
Detonation (OB/OD) Units that had never
notified, received a permit, or attained interim
status under RCRA. Furthermore, Camp Stanley
had not included the OB/OD in its facility
closure plans.
The risk to the environment and human health
associated with these OB/OD units comes from
the hazardous constituents of the waste ordnance.
For instance, trinitrotoluene (TNT), an aromatic
hydrocarbon, breaks down biologically into
isomers that are known to be carcinogenic and
mutagenic, and have been extensively used by the
military as an explosive for decades.
Complaints were issued to Camp Stanley and
Lackland AFB on June 30,1993, for operation of
hazardous waste units without a permit or
interim status. High priority violations mandate
multi-day penalties. Proposed penalties
requested were $693,000 against Camp Stanley
and $346,500 for Lackland AFB.
In re; U.S. Department of Energy (Fernald, Oh,):
On April 9, 1993, EPA signed an Agreement
Resolving Dispute Concerning Denial of Request
For Extension of Time to Submit Operable Unit 2
Documents with the U.S. DOE for the Fernald,
Ohio site. Pursuant to the agreement, DOE must
pay a cash penalty of $50,000, spend $2,000,000
implementing a supplemental environmental
project, accelerate work on three other operable
units, and submit the Operable Unit 2 (OU 2)
Proposed Draft Record of Decision (ROD) by
January 5, 1995, or pay an additional cash
penalty of $25,000.
On February 9,1993 EPA notified DOE that it did
not approve a DOE request for an extension of time
to submit a Remedial Investigation Feasibility
Study, Proposed Plan reports, and the ROD for
OU 2, and further that it intended to assess
stipulated penalties for U.S. DOE's failure to
submit the reports by February 8, 1993. On
February 16, 1993, DOE invoked the dispute
resolution provisions of the Amended Consent
Agreement (ACA) regarding EPA's February 9,
1993 non-concurrence.
Implementation of the SEP required by this
settlement will significantly reduce discharges of
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FY1993 Enforcement Accomplishments Report
uranium from the Femald site to the Great Miami
River. In addition, the assessment of a cash
penalty will require U.S. DOE to report to
Congress the reasons for the penalty. The
combined value of the SEP and penalty amount to
over 90% of U.S. DOE's exposure in this matter.
In re; U.S. Department of Energy (Portsmouth
Plant, Oh.): On May 10, 1993, EPA signed an
Agreement Resolving Dispute Concerning Revised
Quadrant III RCRA Facility Investigation Work
Plan for the Portsmouth Gaseous Diffusion Plant
facility in Piketon, Ohio. Pursuant to the
agreement, U.S. DOE must pay a cash penalty of
$50,000 for past violations of the AOC; spend
$1,000,000 to implement a supplemental
environmental project; and perform a EPA-
approved modified RFI workplan. In addition,
the combined RCRA 3008(h) and CERCLA 106(a)
administrative order by consent (AOC) for the
facility was amended.
On December 14, 1992, EPA had issued DOE a
notice of violation alleging violations of numerous
requirements of the AOC. EPA agreed to the
stipulated penalty provisions based largely on
the Fernald facility AOC with DOE, with the
express proviso that EPA does not consider the
provisions to be precedent for other federal
facility orders, decrees, or agreements, or at other
federal facilities.
In the Matter of the Federal Aviation
A^mjrtisft-ation Technical Center Superfund Site:
On August 18,1993, EPA entered into a Federal
Facility Agreement with the Federal Aviation
Administration (FAA) under §120 of CERCLA.
The agreement requires FAA to remediate
approximately 25 areas of contamination at the
FAA Technical Center Superfund site in Atlantic
City, New Jersey. The site covers 5,052 acres and
is contaminated largely due to fire and crash
testing exercises as well as the testing and storage
of jet fuels, Section 120 of CERCLA requires that
agencies, such as the FAA, enter into an agreement
with EPA to address the contamination at sites
they own which are on the CERCLA NPL. This is
the first agreement under CERCLA §120 for the
cleanup of a U.S. Department of Transportation
facility. The work required under the agreement
is expected to cost approximately $55,000,000.
In the Matter of Griffiss Air Force Base; On
January 13, 1993, EPA issued a ten count
administrative complaint to Griffiss Air Force
Base for failure to properly classify restricted
waste, failure to maintain a container of
hazardous waste in good condition, failure to
submit notifications for restricted waste shipped
off-site, failure to mark the accumulation start
date on containers of restricted hazardous waste,
failure to develop a complete waste analysis
plan, failure to properly manifest waste off-site,
unauthorized storage of hazardous waste, failure
to maintain adequate personnel records, and
failure to post a warning sign. The complaint does
not propose a penalty because the violations
preceded the effective date (October 6, 1992) of
the newly enacted Federal Facility Compliance
Act (FFCA). The violations were detected during
inspections at the base between 1987 and 1992.
Previously, a Notice of Deficiency had been
issued to the Base in December, 1986, regarding a
deficient Part B permit application. This
complaint was intended to resolve all outstanding
violations.
On July 19, 1993, Region II executed a consent
agreement and consent order with the Air Force
resolving the matters raised in the January
complaint. Both the complaint and the consent
order are among the first such documents to be
issued in the country under the FFCA. Pursuant to
the order, the facility submitted a statement
detailing the remedial actions taken rectifying
the alleged violations at the site.
Loring Ajr Force Base_Superfund Site. (Maine):
On May 19, 1993, the Air Force agreed to pay
stipulated penalties in the amount of $50,000 for
failure to meet enforceable deadlines under the
Loring Air Force Base CERCLA Federal Facility
Agreement (FFA). The Air Force also agreed that
in the future EPA may assess stipulated penalties
under the FFA for any documents which are
technically incomplete because they fail to meet
the requirements of CERCLA, the National Oil
and Hazardous Substances Contingency Plan,
applicable EPA guidance, or applicable state law.
Loring Air Force Base is a federal facility on the
Superfund NPL. The Air Force is conducting the
cleanup under the FFA which includes the Air
Force, EPA and the State of Maine as parties.
Loring is also a closure base under the Defense
Base Closure and Realignment Act of 1990.
On February 1, 1993, the Region assessed the
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penalties for failure of the Air Force to meet the
enforceable FFA schedule for two deliverables (a
Remedial Investigation and a Remedial
Investigations/Focussed Feasibility Study
(RI/FFS)) relating to two operable units at the
facility. In December, 1992, the Region with state
concurrence denied an Air Force request for
extension of time to submit the documents. The
Air Force based its request on lack of available
funds in October and November, 1993, even though
the Air Force had assured the State and EPA in
early October that new DOD budget funding had
already been given to the base.
The agreement reached with the Air Force
reflects the Region's efforts to ensure that DOD
components will submit technically complete
documents in a timely manner at federal facility
NPL sites.
Naval Construction Battalion Centey (R.I.): On
September 30,1993, EPA issued an administrative
complaint and compliance order (complaint) to
the Naval Construction Battalion Center (NCBC)
located in the town of Davisville, Rhode Island
for hazardous waste violations. The complaint
proposes the assessment of a civil penalty in the
amount .of $101,062.
On March. 31, 1993, representatives of EPA
conducted a RCRA compliance evaluation
inspection (CEI) at the NCBC. On the basis of
this inspection, EPA determined that the
respondent failed to properly conduct hazardous
waste determinations, failed to include the EPA
hazardous waste number and corresponding waste
treatment standard on the Land Disposal
Restriction (LDR) Notice, failed to retain copies
of LDR notices on site for certain shipments of
waste restricted from land disposal, failed to
provide annual hazardous waste training to its
employees who manage hazardous waste, failed
to maintain a written hazardous waste training
program and other required records for all
personnel who handle or manage hazardous
waste, failed to label hazardous waste
containers with the dates of accumulation, and
failed to conduct weekly container inspections.
In the Matter of Reese Air Force Base. (Lubbock,
Texas): An administrative order under RCRA
§7003 was issued to Reese Air Force Base as a
result of an imminent and substantial
endangerment to health resulting from Base
activities. In March 1993, EPA learned that
Reese had detected trichloroethylene above safe
drinking water standards in some privately-
owned drinking water wells near the Base. After
confirming the data, EPA issued an agreed-on
administrative order under §7003 of RCRA on June
1, 1993. The order requires the Base to collect
water samples from water wells in a 36 square
mile area (within a 2 mile perimeter of the Base)
in order to determine the extent .of the
contamination, to notify the owners of any
contamination, to supply an alternate source of
drinking water to the residents with
contaminated wells, and to monitor the ground
water in and adjacent to the plume. Reese has
completed the initial sampling of about 950
wells, provided carbon filters for all the
impacted water wells, and connected some of the
users to the City of.Lubbock's water system. The
city is in the process of connecting its water lines
to the residents that live within the city limits.
The residents living outside the city limits may
use the water wells after carbon filtering.
Criminal Enforcement - All Statutes
Criminal enforcement continues to be the
fastest growing component of the agency's
enforcement effort. New criminal investigator
offices opened last year in Houston, Los Angeles,
Buffalo, St. Louis, and Miami. FY 1992 set
records for criminal fines ($66.9 million before
suspension, almost a five-fold increase over the
previous record year), court-ordered
imprisonment cases successfully prosecuted, and
new referrals to the Department of Justice. In FY
1993, the criminal enforcement program
continued to support program-specific
enforcement priorities and was increasingly used
to support multi-media and international
enforcement efforts and to address interstate
violations. In addition, the program referred 140
new cases to DO/, a 31% increase over the prior
record number in FY 1992.
In FY 1993, the Office of Criminal
Enforcement (OCE) worked closely with the
media programs to implement the new
Guidelines of the U.S. Sentencing Commission.
for Organizational Defendants (primarily
corporations) convicted of environmental crimes.
Implementing these guidelines will call for
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extensive regional program technical input and
coordination to develop recommended conditions
of corporate probation including restitution,
remediation, and compliance-related relief. The
goal is smooth coordination within the limited
timeframe so that EPA can provide support to
sentencing judges and probation officers.
The 1990 Pollution Prosecution Act called
for no less than 110 criminal investigators on
board during 3993. This gave EPA a unique
opportunity to seek out a new kind of Special
Agent — the hiring strategy in the OCE shifting
from a focus on experienced law enforcement
officers (who were then expected to develop
their expertise in environmental law) to a focus
on recruits, including minorities and women, with
existing technical and scientific environmental
expertise who are trained as law enforcement
officers. The criminal enforcement program is
strengthened by combining the experience of its
veteran Special Agents and the environmental
background of the new recruits.
The Criminal Enforcement Addendum to
the Policy Framework for EPA/State
Enforcement Agreements improves coordination
and communications among federal, state, and
local law enforcement units. Its major provisions
include the designation of one or more intrastate
contacts to serve as a focal point for exchanging
information regarding the status of criminal
investigations and cases, cross referral of cases,
technical support and training, and coordination
of state/federal civil and criminal proceedings.
It also calls for the increased use of Law
Enforcement Coordinating Committees and
environmental task forces as appropriate to
investigate specific cases, enhance reporting of
state criminal enforcement accomplishments, and
continued federal support to heighten state
criminal enforcement capability.
State, local, and tribal criminal -law
enforcement capability are enhanced through
the association networks, the Federal Law
Enforcement Training Center (FLETC), and the
National Enforcement Training Institute (NETl),
including the tribal investigator training pilot
developed by OE-FLETC and the Office of
Federal Activities (OFA). In order to support
state accomplishments, OE worked with the four
regional state association law enforcement
networks in FY 1993 to collect more
comprehensive non-federal environmental crimes
data. One potential use of these data is to
indicate, in general terms, the level of criminal
enforcement activity on the state and local level.
U.S. v, Action Manufacturing Company (E.D. Pa.l:
An explosives manufacturer was sentenced to pay
a $500,000 fine ($400,000 suspended) and $500,000
in clean-up costs of a hazardous waste disposal
area contaminated by years of unpermitted
hazardous waste dumping. Action Manufacturing
Co. of Atglen, Pa., was sentenced September 2,
1993. The company paid $100,000 of the fine at
sentencing, with $400,000 of the fine suspended
pending completion of a five-year period of
probation. Terms of probation include clean up of
the "burn pits" under the direction of EPA and
compliance with a debarment compliance
agreement negotiated among Action, EPA, and the
Department of Defense. Action manufactures
explosives primarily for the U.S. government,
and failure to comply with the terms of the
probation will result in debarment.
Following a joint criminal investigation by EPA,
the FBI, and the Army CID, the company was
charged with illegally disposing of hazardous
waste for several years by pouring liquid and
sludge wastes resulting from explosives
manufacturing into "burn pits" and igniting the
material. At about the same time, EPA was
overseeing a CERCLA response action, and EPA
then negotiated a debarment compliance
agreement because the company, in shaky
financial condition already, would go out of
business if it was debarred, leaving no choice but
for the government to pay for a site clean up. At
sentencing, the judge noted that incorporation of
the compliance agreement and clean up provisions
in the plea agreement was "a hammer" over the
company that caused him to approve the terms of
the plea.
U.S. v. Action Testing and Consulting (N.D. Ga.):
A generator of hazardous waste and its owner
were sentenced for the illegal dumping and
subsequent runoff from drums of hazardous waste
at three separate sites in Dekalb County near
Atlanta, Ga. At the direction of James R. Hunt,
owner of Action Testing and Consulting, company
employees had hired workers to transport and
abandon the drums, many of which contained
ignitable and corrosive wastes.
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On July 8, 1993, the company was sentenced
pursuant to its guilty plea to a felony violation of
RCRA. It received three years of probation and a
fine of $142,749. Hunt, who pled guilty to a
misdemeanor violation of CWA, was sentenced to
four months of home detention, a $25,000 fine, and
three years of probation.
This case relates to the conviction and sentencing
in 1991 of Reginald Max Goldsmith to forty-six
months of incarceration for two felony violations
of RCRA for the illegal transportation of the
drums of hazardous waste. Goldsmith's
fraudulent company had been hired by Action
Testing and Consulting to transport and dispose of
Action's hazardous waste.
U.S. V. Advance Plating Works arid Eugene
Doughty (S.D. Ind.): On March 24,1993, Eugene
Doughty and Advance Plating Works, Inc. were
charged in a four-count indictment alleging
violations of the CWA and RCRA at two Advance
facilities in Indianapolis. Doughty, the president
and an owner of Advance, was charged with
numerous violations of the pretreatment
standards for electroplaters, tampering with a
monitoring device installed by the City of
Indianapolis, and lying to an Indianapolis
Department of Public Works employee about an
unpermitted discharge point. The corporation was
charged with the pretreatment violations, as
well as with illegal storage and disposal of
hazardous waste under RCRA. On October 8,1993,
Doughty was sentenced to one year in jail.
According to the indictment, Advance Plating's
Shelby Street facility discharged nickel, zinc,
copper, and chromium in excess of the
pretreatment standards between February and
May 1992. In February 1992, the City installed an
automatic sampler inside Advance Plating's
Shelby Street plant. Doughty opened up the
sampler, and replaced the contents of the sample
jar with clean water. During the same period,
Doughty also falsely told a City inspector that
all waste was routed through a single sample
point. Finally, Advance Plating stored and
disposed of F006, F007, D002, and D007 hazardous
wastes at both of its facilities without a permit.
The case was developed with the assistance of
the Indianapolis DPW and the FBI, working
through the Indiana Environmental Task Force,
chaired by the U.S. Attorney's Office for the
Southern District of Indiana.
U.S. v. Aerolite Chrome Corporation (D. Nev.,
aff'd 9th Citl: During 1993, the Ninth Circuit
Court of Appeals affirmed the 1990 conviction of
a corporation, despite the acquittal of the
individual perpetrator, the corporate president.
The Aerolite Chrome Corporation had been
convicted on December 11, 1990, for ten felony
violations of CWA pretreatment requirements,
involving discharges of large volumes of
wastewater contaminated by metal processing to
a public sewer system flowing to the publicly
owned Reno-Sparks treatment works. It was
sentenced on July 12, 1991, to a $55,000 fine, six
years of probation, and as a condition of
probation, to no longer engage in electroplating
operations.
But the company president and sole agent of the
corporation involved in the illegal acts, Arthur
Thomas, was acquitted by the jury on all counts, so
the corporation appealed asserting that it too
must be acquitted as a matter of law. The Court of
Appeals disagreed, stating that an apparently
inconsistent verdict could easily be as wrong
against the government as against the defendant,
or could in actuality be the result of jury lenity
toward the individual defendant, and that there
was ample testimony supporting the corporation's
conviction for the illegal acts of its agent Thomas.
U.S. v.Tariq Ahmad, et al.(C.D. Call: Following
a jury trial in a case that generated international
interest, a chemical laboratory owner's scheme to
burn down his lab for the insurance proceeds and
his illegal export to Pakistan of hazardous waste
generated by the lab led to heavy prison sentences
on the individuals convicted. On August 9,1993,
Tariq Ahmad, the lab owner, was sentenced to 97
months of imprisonment upon his conviction on
April 15, 1993, for the illegal export of hazardous
waste, conspiracy to commit arson, and for money
laundering and racketeering. Rafat Asrar,
Ahmad's colleague, was sentenced to 60 months
following guilty verdicts for conspiracy to commit
arson, money laundering, and racketeering. An
appeal is pending.
This case stemmed from a scheme by Tariq Ahmad
to burn down his analytical laboratory in
Southern California for the insurance proceeds in
1990. In its processes, the lab generated
hazardous-waste chemicals. To avoid the costs of
disposal, Ahmad shipped the chemicals to
Pakistan for incineration and dumping down a
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mine shaft. When the government of Pakistan
learned of the shipment from a news reporter, the
chemicals were refused entry into Pakistan and
returned to Long Beach, California, where the
U.S. Customs inspected and sampled the
container.
U.S. v. Applied Coating Services. Inc. (S,D, Tex4:
The illegal handling of paint and sandblasting
wastes by an off-shore oil rig painting company
resulted in the company's conviction and
sentencing for violating RCRA. On April 5,1993,
A jury convicted Applied Coating Services, Inc. of
transportation without a manifest to its North
Houston facility, of four counts of illegal storage
there, and of disposal without a permit. On July
21, 1993, the company was sentenced to pay a
$50,000 fine, and ordered to reimburse clean-up
costs by the payment of $20,000 to Liberty County
and $105,000 to the Union Pacific Railroad.
U.S. v. Walter Baker and Matthew Girdich
£W .D. Pa.l: In a case of special interest to those
concerned with data quality and information
integrity provided to meet CWA requirements,
two former municipal officials have been
sentenced for NPDES reporting violations
involving the Penn Hills, Pa,, Water Pollution
Control Department. At one sentencing, the judge
commented that environmental crimes are very
serious because the responsible regulatory
agencies rely so extensively on truthful data, and
that the message has to get out to the regulated
community that falsifying data will not be
tolerated.
On April 2, 1993, Walter Baker, former Assistant
Director of the Penn Hills, Pa., Water Pollution
Control Department, was sentenced to one year of
incarceration, one year of supervised release, and
a $5,000 fine for falsifying discharge monitoring
reports. Baker was convicted on February 3,1993,
on six counts of falsifying DMRs in the late 1980s
to cover up NPDES permit violations at several of
the municipality's sewage treatment plants.
On March 19, 1993, Matthew Girdich (Baker's
predecessor) was sentenced to five years of
probation, a $5,000 fine, and two years of
community service, Girdich had pled guilty on
December 30, 1992, to one count of falsifying
DMRs. Girdich was responsible for NPDES
reporting for the five sewage treatment plants in
the municipality until he retired in 1988. Over
several years, violations in reporting were
uncovered by the Allegheny County Health
Department, which sought federal assistance in
investigating and prosecuting the violations.
U.S. v. Gordon S. Bird. Tr. (D. Utah): The
president and owner-operator of a mineral
recovery company was convicted and sentenced for
unpermitted storage and disposal of arsenic and
cadmium in pits or surface impoundments at his
gallium recovery operation located in Blanding,
Utah. On February 12, 1993, Gordon S. Bird, Jr.
was sentenced to perform 1,000 hours of community
service that must be related to environmental
protection, and he also was placed on three years
of probation. On December 3, 1992, Bird was
convicted by a jury of one count of violating RCRA
and one count of aiding and abetting in violation
of 18 U.S.C. § 2.
U.S. v. Robert M. Briftingham and John J.
LjjMonaco (N.D. TexasJ.: Two prominent Dallas
businessmen, high-ranking former officials of a
substantial corporation, were .convicted and
sentenced to pay multi-million dollar fines for
ordering subordinate employees to illegally
dispose of the hazardous waste in a gravel pit.
On May 21, 1993, defendants Robert M.
Brittingham and John J. LoMonaco were sentenced
to pay a total of $12 million for violations of
RCRA. Brittingham must pay a $4 million fine,
LoMonaco must pay a $2 million fine, and
together they must pay $6 million into a trust
account set up to administer a lead abatement
community service project. Each defendant also
received a five-year term of probation, during
which they each must spend a substantial number
of hours Weekly to implement the community
service project. The project is designed to abate
the City of Dallas' lead problem and its effects on
children by funding educational awareness
programs on lead exposure and by testing children
who may suffer learning disabilities as a result of
lead exposure. The defendants must also place an
advertisement in a widely-circulated trade
journal describing their violations of
environmental requirements.
Brittingham was former chairman of the board
and part owner, and LoMonaco was president and
a former board member, of their former company,
Dai-Tile Corporation, which was sold to an
investment group in 1990. Dai-Tile, which makes
ceramic tiles, has several plants and warehouses
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and employs more than 5,500 people throughout
the United States and Mexico. During 1987, Dal-
lile used lead-based compounds in glazing and
coloring ceramic tiles at its large plant in Dallas.
Evidence showed that Dai-Tile's ceramic tile
process produced waste sludge with high
concentrations of lead which can cause serious
health effects, including damage to the central
nervous system. Although laws require that
heavy metals, like lead, must be disposed of in an
approved hazardous waste disposal facility, and
even after Dai-Tile employees warned
Brittingham and LoMonaco that the sludge was
toxic and being disposed of illegally, Brittingham
and LoMonaco ordered that the toxic sludge be
dumped in a gravel pit in the Dallas suburb of
Seagonville.
U.S. v. Walter M. Caldwell. Ill (W.D. La.): The
owner of a Louisiana truck stop, who cleared
approximately twenty-five acres of wetlands,
filled several acres, and dug a ditch across his
property to drain the wetlands behind his place
of business without a U.S. Army Corps of
Engineers' CWA § 404 permit, was sentenced for
his violation of the CWA. On June 30, 1993,
Walter M. Caldwell, III, was sentenced to three
years of probation, to pay $6,500 for the costs.of
his supervision and a fine of $5,000, and to restore
the property to its original condition in
compliance with a restoration plan agreed to
with EPA. Caldwell had pled guilty on April 21,
1993, to a CWA misdemeanor charge. Caldwell's
103 Truck Stop is located along Interstate 20, near
West Monroe, Louisiana.
U.S. v. Darrell W .Caster (D. Mtl: The president
of a precious metals plating business was
convicted and sentenced for the illegal disposal of
hazardous waste, namely mixtures of acids and
heavy metals, into a large, unpermitted
underground tank located on the business premises
near Bonner, Montana. On February 2, 1993,
Darrell W. Caster was sentenced to six months of
home incarceration, three years of probation,
$8,000 in restitution, and 100 hours of community
service. On December 1,1992, Caster pled guilty
to one count of unpermitted disposal of hazardous
waste in violation of RCRA.
U.S. v. Craven, et ah (W .D. TX): A criminal case
involving a contract laboratory for EPA has a
mistrial in U.S. District Court, an appeal on
double jeopardy grounds, and affirmation by the
Fifth Circuit Court of Appeals for a new trial. On
September 22, 1992, Craven Laboratories, Inc.,
(Craven Labs) Don Craven, Donald Hamerly,
Dale Harris and E. Stanley Peterson were
indicted and charged with 20 felony counts in
connection with pesticide residue analysis
testing. The charges filed against the defendants
included violations of 18 U.S.C §1001 (false
statements to the government), 18 U.S.C. §371
(conspiracy), 18 US.C. §1341 (mail fraud), and 18
U.S.C. §1505 (obstructing agency proceedings).
The case proceeded to trial on February 1, 1993.
Four defendants (Craven Labs, Craven, Hamerly
and Harris) moved for a mistrial after learning
that one of the Government's witnesses had
spoken to a juror, and had discussed being nervous
about testifying. Peterson objected to the
mistrial, and indicated that he was ready to
proceed with the case with the jury that was
sitting. After the court granted the defense
motion for a mistrial for all defendants, all five
defendants moved to acquit or dismiss the
Indictment, claiming that the mistrial was the
result of bad faith or Government misconduct The
court ruled that the mistrial was not the result of
any bad faith on the part of the Government, and
denied the defense motions.
The defendants then filed Motions for Acquittal
and/or Motions for Dismissal of the Indictment,
claiming that jeopardy will attach if the
defendants were retried. When these motions
were denied, the defendants appealed to the
Fifth Circuit. On September 9, 1993, the Fifth
Circuit affirmed the judgment of the district
court, and sent the case back to the district court
for retrial. To date, twelve individuals have
pleaded guilty to charges ranging from FIFRA
misdemeanors to conspiracy. The case is
scheduled to be re-tried on November 29,1993.
U.S. v. lohn Hoyj Curtis (D. Alaska, aff'd 9th
Cit): On March 8, 1993, the Ninth Circuit Court
of Appeals affirmed the defendant's conviction,
holding that individual employees of the federal
government, acting within the course and scope of
their employment, are subject to criminal
prosecution for violations of the CWA. On June 7,
1993, a petition for a writ of certiorari was filed
with the Supreme Court.
John Hoyt Curtis, a civilian, federal employee of
the U.S. Navy, was the Fuels Division Director
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for the Naval Air Station at Adak, Alaska
during late 1988 and early 1989. On March 18,
1992, he was found guilty by a jury of unpermitted
discharges of jet fuel that he repeatedly ordered
to be pumped through a pipeline that he knew
was leaking, thus causing hundreds of thousands
of gallons of fuel to spill into Sweeper Cove, an
inlet of the Bering Sea. On May 26, 1992, he was
sentenced to ten months of incarceration. On
appeal, the Court of Appeals held that Mr.
Curtis as a federal employee is a "person" covered
by the CWA, and that he is not entitled to
federal sovereign immunity.
U.S. v. Gale E. Dean (E.D. Tenn., aff d, 6th Cit,
cert, denied!: A conviction and sentence to 40
months imprisonment were, in effect, upheld on
April 19, 1993, when a petition for a writ of
certiorari was denied by the Supreme Court,
finally concluding this case. On July 8, 1992, the
Sixth Circuit Court of Appeals had affirmed
Gale E. Dean's conviction, holding that
knowledge of a permit requirement is not an
element of the crime of knowingly treating,
destroying, or disposing of hazardous waste
without a permit, and that an employee of the
owner or operator of a facility could be held
criminally liable for storing and disposing of
hazardous wastes without a permit, even though
only owners and operators are required to obtain
permits. In August 1991, he had been sentenced to
40 months imprisonment after being convicted of
discharging chromic acid rinse water and
wastewater sludges into an open lagoon in
violation of RCRA.
U.S. v. Dttyjd Dellinger..et_a|. (D. R.I.1: A scrap
hauler, who during rush hour let PCBs spray from
his truck onto Interstate 95 near Providence, R.I.,
received the longest prison term yet awarded to a
federal environmental defendant in New
England. On September 15,1993, David Dellinger
was sentenced to 27 months of incarceration and
ordered that he pay a percentage of his future
salary as restitution toward $50,000 in clean-up
costs incurred by the City of Cranston, one of the
affected sites. On June 25, 1993, Dellinger pled
guilty to one count of disposal of PCBs in violation
of TSCA and one count of failing to notify the
federal government of a release of a hazardous
substance in violation of CERCLA.
On January 29, 1993, Giacomo Catucci and David
Dellinger were indicted for violations of TSCA
for the illegal disposal of PCBs in violation of
federal law.
Catucci hired Dellinger to remove PCB-filled
transformers from his mill in Providence.
Dellinger let the oil spray on the highway,
drained more PCBs onto and along a side road,
stripped the copper wire, and abandoned the
casings in the woods and at an isolated sandpit in
Coventry, R.I. Catucci went to trial, and on
October 22,1993, he was convicted by a jury of two
counts of violating TSCA'and two counts of
violating CERCLA. Sentencing is pending.
U,S, y. William "Dave" Denison and Tames Gary
White (S.D. TX1: A "shell game" of moving
hazardous waste - just before a scheduled
government inspection would find that the waste
had been stored in violation of RCRA regulations
- has ended in the sentencing of the two culpable
individuals. On August 31, 1993, defendant
William "Dave" Denison was sentenced to fifteen
months incarceration and a $5,000 penalty as a
result of his illegal storage of hazardous waste in
violation of interim status requirements and the
illegal transportation of hazardous waste
without a manifest. On September 15, 1993, co-
defendant James Gary White was sentenced to six
months of home detention, two years of probation,
and 200 hours of community service; no fine was
imposed because of his poor financial status. On
June 1,1993, White and Denison pled guilty to one
and to three RCRA violations, respectively^
U.S. v. Dexter Corporation (D. Conn,}; Dexter
Corporation, a Fortune 500 company and the
oldest member of the New York Stock Exchange,
pled guilty and entered into a large and
innovative global settlement. In addition to
payment of a $4 million fine for eight felony
violations of CWA and RCRA, Dexter agreed to
the payment of civil penalties totaling $9 million
for the violations, and to conduct environmental
audits at all of its divisional manufacturing
facilities across the country. These and other
actions resulted in the lifting of EPA's suspension
and debarment action which precluded Dexter
from obtaining government contracts.
Dexter operates facilities nationwide, and at its
Windsor Locks, Connecticut, facility Dexter
manufactures specialty paper products used in the
production of tea bags, food processing, and
disposable medical gowns, and operates a co-
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generation facility. Dexter was charged with
illegally disposing of carbon disulfide, listed as
an acute hazardous waste, at its Canal Bank
Road facility in Windsor Locks. Dexter received
carbon disulfide in 55 gallon drums. After
transferring the chemical from the drums to a
storage tank, the drums were then turned over and
the residual carbon disulfide was dumped onto
the ground. The government also charged Dexter
with discharging carbon disulfide into the
Connecticut River through an overflow pipe
which led from the storage tank to the river.
(The settlement was signed on September 3,1992,
but was not reported in OE's 1992 annual report.)
U.S. v. Electrochemical Co.. Inc.. .et.al. (M.D. Pa.l;
Frank Leaman, an electroplater was sentenced to
15 months in prison for illegally disposing of
hazardous waste, failing to report a release of a
hazardous substance, making false statements,
and falsifying documents. This minimum sentence
was imposed only because of other disastrous
losses his actions brought upon himself, his
family, and his company. These include the loss
of his company that is in bankruptcy, the loss of
more than $100,000 invested by family members
in the company, and the loss of his personal
residence pledged as collateral for bank loans.
On January 15,1993, Leaman, of York, Pa. and his
company, Electrochemical Co., Inc., were
sentenced. The company was engaged extensively
in cadmium plating as a DOD subcontractor. The
sentences were imposed for (1) failing to notify
authorities about an accidental 2,QGQ~gaUan spill
of spent acids in 1989 and for lying to the Pa.
Department of Environmental Resources (DER)
about the amount of the spill, (2) pumping the
contents of a 750-gallon tank of caustic (pH of 13)
parts cleaner into a "groundhog hole" on company
property after the City refused to renew the
company's pretreatment discharge permit, and (3)
submitting false manufacturing and performance
certifications to DOD regarding plated parts used
in military vehicles.
The company was sentenced to pay a $250,000 fine
for violating CWA pretreatment discharge
standards in 1989 and 1990. The court suspended
$225,000 of the fine if the company or its successor
would enter into a written agreement with the
DER for cleanup of contaminated areas of
company property.
Two company employees were sentenced each to
one year of probation, a fine of $1,500, and 100
hours of community service. Russell S. Walker, Jr.,
a company supervisor, was sentenced for failing to
report the spill. Glenn L. Stover, Jr., was
sentenced for removing copies of certifications sent
to DQD and other documents to prevent mem from
being seized during execution of a search warrant.
The investigation was conducted jointly by EPA,
the FBI, DCIS and NIS, with the assistance of
the City of York and the Pa. DER.
U.S. v. William B. Ellen {D, Md,, affd 4th Cit,
cert, denied!: On October 5, 1992, a petition for a
writ of certiorari was denied by the Supreme
Court, finally concluding this case. On April 27,
1992, the Fourth Circuit Court of Appeals had
affirmed the defendant's conviction, holding that
the application to the defendant's prior conduct
of the definition of "wetlands" from the 1989
federal wetlands manual did not violate the U.S.
Constitution's due process or ex, pogf: facto
prohibitions, and that under the guidelines of the
U.S. Sentencing Commission it was proper to
increase the sentence for committing an ongoing
offense and for discharging without a permit.
On April 15, 1991, Ellen was sentenced to six
months in prison, one year of probation, and 60
hours of community service relating to his
conviction for unpermitted filling of 86 acres of
wetlands on the Eastern Shore of Maryland.
Ellen was the project manager for the property
owner, Paul Tudor Jones, II, a top Wall Street
financier, who previously had pleaded guilty,
paid a substantial fine, and agreed to site
restoration.
U.S. v. Environmental Waterway Management.
Inc., et al. (S.D. Fla.): Illegal use of the pesticide
Direx on aquatic areas, a pesticide not approved
by EPA for use there because it is poisonous to
aquatic invertebrate organisms (the foundation
for the food chain) and also directly causes fish to
suffocate, led Environmental Waterway
Management, Inc., and its owners, Alan Chesler
and Andrew Chesler to sentencing following tineir
guilty pleas. The defendants knew that their use
of the pesticide was illegal, and their sentence
included the largest criminal fine ever imposed in
the U.S. for the unlawful use of pesticides.
On February 17, 1993, the company (having
previously pled guilty to five FIFRA and five
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felony mail fraud counts) was fined $400,000 and
sentenced to five years of probation. Alan
Chesler and Andrew Chesler (each having pled
guilty to five counts of FIFRA) were each fined
$25,000 and sentenced to five years of supervised
probation.
Despite the knowledge that application of Direx
to waterways was illegal, the defendants
regularly so used it because of its effectiveness in
destroying certain types of vegetation. In
addition to the FIFRA violations, the company
used the U.S. mails to solicit and attempt to
solicit customers with written contracts which
falsely represented that it used only EPA
approved products in removing and controlling
unwanted aquatic vegetation and algae growth.
U.S. v. Victor Figuetpa
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FY1993 Enforcement Accomplishments Report
fertilizer overseas, several corporate executives
and companies pled guilty to violations of RCRA
or TSCA, and several have been sentenced. The
"fertilizer" was made with baghouse dust, a
hazardous waste removed from air pollution
control equipment in the United States and toxic
for lead and cadmium under RCRA regulations.
Between 1,000 and 2,000 tons of this material was
applied directly by hand to food crops in
Bangladesh. Discovery of the incident resulted in
international controversy involving foreign
governments, environmental groups, the United
States government and the Asian Development
Bank. Although some charges are still pending,
and any defendant must be presumed innocent
until proven or pleading guilty, this case is
reported now. The case is a matter of considerable
public interest, and it is important to let the
world know that a number of the perpetrators
have been brought to justice.
On November 1, 1993, Gaston Copper Recycling
Corporation (Gaston) and Southwire Company
(Southwire) were sentenced. Gaston was ordered
to pay $600,000, which the judge said may be used
to treat or dispose of the portion of the fertilizer
that is still in storage in Bangladesh, and to pay
$200,000 to the South Carolina Department of
Health and Environmental Control. Southwire
was fined $190,000. Both companies were
sentenced to two years of probation, ordered to
perform environmental assessment studies on
their facilities, and ordered to publish in
newspapers a formal apology to the people of
South Carolina. On December 22, 1992, Gaston
and Southwire each pled guilty to eight counts of
violating TSCA, Southwire executive Bruce E.
Betterton also pled guilty on December 22,1992, to
a single TSCA violation. On November 1, 1993,
Betterton was fined $10,000 and sentenced to two
years of probation and 100 hours of community
service. The three defendants' TSCA violations
were for failing to report to EPA the distribution
in commerce of a chemical substance or mixture
while possessing information that it presents a
substantial risk of injury to health or the
environment.
On August 17,1993, Robert D. Weaver pled guilty
to two counts of violations of RCRA for illegal
transportation without a manifest and illegal
export of hazardous waste, and Arthur G. Heinel
pled guilty to one count of illegal transportation
of hazardous waste without a manifest in
violation of RCRA. Their sentencing is pending.
Stoller Chemical Company (Stoller) of Jericho,
S.C., was the manufacturer of micro-nutrients used
to enhance fertilizer. Weaver was the General
Manager of Stoller, and the person responsible for
ordering materials for the plant. Heinel is the
President and owner of Hy-Tex Marketing, a
hazardous waste broker, located in Beaufort, S.C.
[n return for a $50,000 kick- back from Heimel,
Weaver and Heimel caused baghouse dust (with a
total lead content as high as thirty-one percent)
to be transported without a hazardous waste
manifest from Gaston, S.C., to Stoller's Jericho
plant. Stoller then mixed this hazardous waste
with other material, some of which was another
hazardous waste, to produce 3,000 tons of
contaminated micro-nutrient fertilizer which was
then exported overseas. The export of the new
mixture, which was also hazardous waste
characteristically toxic for lead and cadmium,
occurred without the required consent of the
receiving country, Bangladesh. Stoller was
indicted in 1992 and is now in bankruptcy.
Southwire is headquartered in Carrollton,
Georgia and is the primary stockholder of Gaston,
a company that operates a copper recycling plant
in Gaston, S.C. Betterton is a corporate executive
of Southwire and participated in the
management of the baghouse dust generated at
the Gaston plant. In September and October of
1991, Gaston generated and shipped baghouse
dust to Stoller while having knowledge,
including their own material safety data sheet,
that the baghouse dust presented a health
hazard because it contained high concentrations
of lead and cadmium; the dust can be toxic by
ingestion and inhalation.
This case involved significant federal, state and
local cooperation. EPA was assisted by the South
Carolina Department of Health and
Environmental Control's Criminal Investigation
Division, by the Charleston County, South
Carolina, Sheriff's Department, and in Australia
and Bangladesh by the U.S. Customs Service that
obtained key samples and conducted liaison with
foreign governments.
U.S. y. Herman Goldfajen. et al. (N.D. Tex.,
afi'd, Sth Citl: In the first federal prosecution
filed (in 1990) in the U.S. for enforcement of a
city's EPA-approved pretreatment program to
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implement the CWA, after the second of two
appeals, the individual responsible was
sentenced to 33 months of imprisonment. Both the
individual and his company, which did not
appeal, had pled guilty on October 5, 1990, and
his company was sentenced to pay a fine of
$1,000,000.
On March 17, 1993, the Fifth Circuit Court of
Appeals affirmed the second sentence, 33 months
of imprisonment, imposed on July 23, 1992, to
Herman Goldfaden. The court held that a four-
point offense level increase under the Sentencing
Guidelines for disposal without a permit applied
to a defendant convicted of unlawful industrial
waste discharge, even if he could not have
obtained a permit for his conduct due to his use of
improper equipment, and that the vacating of
defendant's initial sentence did not preclude (at
the time of resentencing) offense-level
enhancement for obstruction of justice based on
perjured testimony given at the original1
sentencing hearing.
Goldfaden's recent, failed appeal followed his
earlier appeal in this case, in which Goldfaden
had successfully obtained a ruling by the Fifth
Circuit on April 22, 1992, that vacated his first
sentence (to three years imprisonment and a
$75,000 fine, imposed July 16,1991) and remanded
the case for resentencing or withdrawal of his
plea agreement.
Goldfaden pled guilty to one CWA felony for the
1989 unpermitted discharge of industrial
wastewater into a private sewer in East Dallas,
from which it flowed into a sewer. His former
company, Control Disposal Co., Inc., which he
controlled, was in the business of cleaning grease
and sludge traps and sewer lines. The company
pled guilty to the same CWA violation and also a
RCRA violation for falsifying documents on a
shipment of hazardous waste. The RCRA
violation occurred in 1988, when Control Disposal
workers hauled waste from the city of University
Park. Although city officials told them that the
waste was hazardous used paint thinner, mostly
methyl chloride, the company misrepresented
the waste on federal forms as being hydraulic
fluid that can be disposed of more cheaply. The
case was investigated in a cooperative effort of
EPA, the Water Utilities and the Health and
Human Services Departments of the City of
Dallas, and the FBI.
In a closely related case, on February 11, 1993,
Ronald L. Voda, Sr., owner of Voda Petroleum
Company of White Oak, Texas, was sentenced to
60 days of incarceration, 120 days at a halfway
house, 400 hours of community service, a $3,000.00
fine, and five years of probation. In 1987, Ronald
Voda and his company entered into an agreement
with Goldfaden. In return for a payment by
Goldfaden of $.10 for each gallon of waste listed
on the paperwork regardless of whether or not it
came to the Voda Petroleum plant, Voda signed
trip tickets and hazardous waste manifests
falsely certifying that Voda Petroleum Company
received waste. Much of the waste listed on these
papers was dumped illegally into sewer systems
in the Dallas area by Control Disposal Company.
On February 10, 1989, while executing a search
warrant at Voda Petroleum, EPA agents observed
a ditch cut through a levee surrounding a process
area at the plant. Wastewater was being
discharged from this ditch that exceeded limits
set for oil and grease in Voda's NPDES permit.
Voda's plea agreement with the government
allowed him to plead to a CWA misdemeanor in
return for his cooperation and testimony in all
proceedings involving Control Disposal Company
and Herman Goldfaden.
U.S^ v. Samuel Gratz (E.D. Pa.l: Illegal dumping
of chemical wastes into a storm drain leading to
the Delaware River, and illegal transport and
storage in Philadelphia of extremely hazardous
waste (phosgene and sodium cyanide), led to
sentencing on January 26, 1993, for a
pharmaceutical manufacturer. Samuel Gratz, the
former President of Lannett Company, Inc., of
Philadelphia, was sentenced to six months of
home arrest and three years of probation. He was
also ordered to pay a fine of about $210,000,
consisting of $10,000 in cash and 10,000 shares of
stock (trading at approximately $20 a share) in a
company Gratz founded. The judge was more
lenient than the Sentencing Guidelines
prescribed, based on Gratz's age (he is in his 70's)
and poor physical condition. At a trial ending on
September 30,1992, Gratz was found guilty of one
count of illegal transportation of hazardous waste
to an unpermitted facility, one count of illegal
transportation of hazardous waste without a
manifest, one count of unpermitted storage of
hazardous waste, and one count of unpermitted
discharging of pollutants into navigable waters of
the United States.
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The criminal investigation began after the City
of Philadelphia's Fire Department was unable to
get Gratz to dispose of the wastes, which to the
Fire Department presented a safety hazard. His
company also failed to comply with a state court
cleanup order. The waste was stored illegally at
the Lannett facility in Philadelphia from 1987 to
1991, except for the portion of the waste that
Gratz had dumped down a storm drain from 1987
to 1989. Following a hostile corporate takeover in
which, as a result of the investigation, Gratz was
ousted from management, Lannett Company has
disposed of the wastes properly and conducted a
soil cleanup at the Philadelphia facility.
U.S. v. Hansen Container Company. et_al. (D.
ColJ.: The first sentences for opacity violations of
the CAA were imposed against a drum
reeondittoner and its top officers. The business
processed many drums by dumping their liquid
hazardous waste onto the ground and then by
firing the drums in an incinerator to burn off
hazardous-waste residue and paint. The
incinerator was operated illegally and caused
plumes of black smoke and lead waste to be
released into the environment.
The Hansen Container Company, located in Grand
Junction, Colorado, reconditioned used 55-gallon
drums from industrial and government sources.
The company did not have a RCRA permit to
treat, store or dispose of hazardous waste. The
company's president, Christian E, Hansen, Jr., and
its former executive administrative assistant,
Michael Bilney, each were sentenced on October
21, 1992, to a one-year sentence composed of 30
days of incarceration, the balance to be served on
probation, plus a $10,000 fine. Each had pled
guilty to a misdemeanor violation of the CAA for
emissions and smoke in excess of permissible
limits. The company also pled guilty to violating
RCRA by conducting illegal treatment, storage,
and disposal activities, and it was fined
$250,000.
U.S. v. Hartford Associates (D. Md,): A real
estate partnership was sentenced to pay a
substantial fine and to grant a conservation
easement for violations in Maryland of the
wetlands protection requirements of the CWA.
Hartford Associates, a Berlin, New Jersey
partnership controlled by Joseph Samost and
engaged in property development, was sentenced
on October 7,1993, to pay a $100,000 fine and to
grant a conservation easement on more than 100
acres of wetlands. The conservation easement
will effectively restrict further development of a
large portion of the property involved. The
partnership pled guilty to one count of negligently
discharging excavated fill material without a
permit into four acres of wetlands on a large tract
of land that the partnership owns near Elkton,
Maryland.
U.S. v. Hi-Tek Polymers. Inc. (W.D. Ky.): The
illegal discharge of chemical by-products into
the Ohio River caused Hi-Tek Polymers, Inc. to
plead guilty on November 20, 1992, to violating
the Rivers and Harbors Act. In accordance with
the plea agreement, Hi-Tek was sentenced to pay
a fine of $125,000 and to conduct two EPA-
sponsored public educational seminars.
Hi-Tek, located in Louisville, KY, is a wholly
owned subsidiary of the French chemical firm
Rhone-Poulenc and manufactures industrial
coatings, resins, and synthetic chemical
compounds. On May 18,1989, Hi-Tek caused the
illegal discharge of refuse material into the Ohio
River during an untested manufacturing process
that Hi-Tek was undertaking for a new product.
The process caused chemical by-products,
including N-Butanol and Xylene, to be discharged
into the Louisville metropolitan sewer system.
U.S. v. Kingsport Shipping. Inc. (S.D. Tex):
Sentencing has occurred in a CWA pollution case
in which a vessel burned and five crew members
suffered burns and other injuries. The fire occurred
during the illegal pumping of hexane, styrene,
xylene, toluene, and benzene from the ship into
the Houston ship channel. In May 1990, the M/T
SETA was housed at the New Park Shipyard.
Crew members began pumping the chemicals into
the water while a welder was also working on
the ship's rudder. When the welder attempted to
light his torch, sparks ignited the vapors from
the chemicals.
On April 2,1993, Kingsport Shipping, Inc., owner
of the vessel, pled guilty to one count for the
negligent discharge of a pollutant without a
permit, and agreed to A fine of $85,000. This
resolution was acceptable to the government
because the two most culpable individuals have
fled to their homeland in the former Yugoslavia.
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U.S. v. Xhomas T. KowalskL et al. (D. Ohioi.:
Sentences were imposed upon the creators of
Pennsylvania's "Marcy Road" Superfund
emergency removal site, and $80,000 was ordered
paid as restitution to the Superfund. The problem
was discovered when barrels of hazardous paint
waste turned up along roadsides in Ohio and Pa.
during 1991. On August 3, 1993, Thomas J.
Kowalski, Harry J, Meininghaus, and MCM
Warehouse, Inc., located in Ohio, were sentenced
upon their guilty pleas relating to an illegal
dumping of hazardous waste, and an illegal
asbestos stripping operation at the Ohio
warehouse, in violation of CAA and RCRA.
Kowalski, manager of MCM, was sentenced to
three years of probation. Meininghaus, an MCM
foreman who actually disposed of the waste and
previously had served a year in Ohio state prison
in connection with the disposal in that state, was
sentenced to 100 days of federal incarceration and
one year of supervised release. MCM was
sentenced to pay $80,000 to EPA as restitution and
to probation for five years.
A joint EPA and Ohio EPA investigation
identified those responsible for the roadside
dumping, and the waste was traced to the MCM
Warehouse, where agents discovered that an
illegal asbestos stripping operation had also been
conducted. Meininghaus and two contract workers
were also convicted in state courts of Ohio and Pa.
U.S. v. Lake Doctors. Inc.. et al. (M.D. Fl.):
Another scheme involving illegal use of the
herbicides Karmex and Direx in Florida lakes
has resulted in heavy sentences for those
culpable, which should have a significant
deterrent effect on Florida aquatic weed control
specialists. The misapplication of these
herbicides can be very profitable for applicators
and is believed to be widespread in Florida.
These powerful herbicides are not registered for
application into water, where they can cause
considerable environmental harm.
On September 27,1993, James L. Williams, owner
of Lake Doctors, Inc., was sentenced to three
months in a halfway house, followed by six
months of home detention, and five years of
probation, to pay a $20,000 fine, and to perform
750 hours of community service. His company was
placed on five years of probation, fined $100,000,
and ordered to perform 1,000 hours of community
service. Both had pled guilty to use of a pesticide
inconsistent with the label in violation of FIFRA,
and with fraudulent use of the mails to
misrepresent to customers that the application
was environmentally sound, in violation of 18
U.S.C. 1341. Company Vice President Albert
Semago was sentenced to 30 months of probation,
300 hours of community service, and a $5,000 fine.
Ken Savell, manager of the company's
Jacksonville office, was sentenced earlier to six
months of probation, 50 hours of community
service, and a $500 fine suspended upon successful
completion of probation. Six company applicators
are pending sentencing.
This case was investigated by EPA in conjunction
with a multi-agency task force which included
the Florida Department of Agriculture, the
Florida Fresh Water Fish and Game Commission,
and the Broward County Sheriffs Office.
U.S. v. Laska et al.. (N.D. Ohio): On April 22,
1993, Michael Laska was sentenced to serve seven
months in prison and seven months home
detention, and pay a fine of $3,000 as a result of
his illegal asbestos renovation project. Laska is
the owner of a warehouse in Cleveland, Ohio.
Laska hired neighbors to strip the asbestos
insulation from the warehouse, but provided no
water for their use or training. Laska's plea
agreement allows him to remain free while he
appeals a pretrial suppression ruling. He will
begin his term of imprisonment if he loses his
appeal. A co-defendant, Steven Howell, was
sentenced to a term of probation.
This investigation was initiated when a
confidential informant contacted EPA with
information that Laska had hired a crew to strip
insulation from his warehouse. When the workers
asked whether there was asbestos in the
building, Laska informed them that the asbestos
wouldn't hurt them, and provided paper masks.
No water was ever used during the operation,
which lasted approximately six months. EPA, in
conjunction with the FBI, began a surveillance and
observed Laska dumping asbestos waste in a mall
dumpster. EPA then executed a search warrant at
the warehouse to obtain documents, samples and
measurements. Laska was charged with CAA
violations relating to the illegal stripping
operation, and with a CERCLA charge for failing
to report the release of asbestos in the dumpster.
In pretrial motions, Laska challenged the
constitutionality of the search warrant, arguing
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that the warrant was based on evidence obtained
through prior warrantless inspections conducted
by the local air agency and EPA. The government
won in the trial court, but permitted Laska to
appeal the ruling as a part of his plea.
U.S.v. Gary Lewis (D. Mt): For the illegal burial
of thirty-eight drums filled with hazardous
waste in a gravel pit in Vaughn, Montana, the
president of a construction company was sentenced
to five years of probation, including four months
of electronically monitored home detention, and
$500,000 in restitution to be paid over the course
of the five-year probationary period. On March
26, 1993, Gary Lewis, President of Lewis
Construction Co., dba Interstate Specialties, Inc.,
was sentenced upon his plea of guilty to a
violation of RCRA. On January 25,1993, he pled
to one count of disposal of hazardous waste at an
unpermitted facility.
U.S. v. David Liebman. et al. (D. ConnJ: The
discovery by hunters of approximately 3.5 tons of
asbestos, illegally dumped in a state wildlife
management area in Tolland, Connecticut, and in
another wooded site nearby, led to the sentencing
on July 7, 1993, of the four defendants who
participated in the crimes.
David Liebman hired workers to remove asbestos
from an old mill in Vernon, Connecticut, owned by
his family, that was to be sold to a developer.
The asbestos was torn down without any safety
precautions and dumped in the woods. Liebman
was sentenced to ten months of incarceration, one
year of supervised release, and a $3,000 fine, upon
his plea of guilty to a violation of CERCLA for
not reporting the release. Louis Lavitt, real
estate broker to the sale of the mill, was
sentenced to five years of probation and a $4,000
fine upon his guilty pleas to a charge of
conspiracy to violate the CAA and to a charge of
disposal of asbestos in violation of the CAA. The
two workers hired by Liebman were also
sentenced. William Janiak was sentenced to six
months of home detention, 250 hours of community
service, and five years of probation, upon his
guilty plea to a charge of conspiracy to violate
CERCLA. Thomas Janiak was sentenced to five
years of probation and 250 hours of community
service upon his guilty plea to a charge of
conspiracy to violate the CAA,
U.S. vf Jong Services Corporation (D. Wa.): The
dumping of 2,500-3,000 Ibs. of asbestos down the
toilets of a public high school led to the
sentencing on June 18, 1993, of Long Services
Corporation of Seattle, Washington. The
company was ordered to pay a fine of $25,000,
upon its guilty plea to two counts of violating the
Clean Air Act by illegally disposing of asbestos.
In July 1989, while Long Services Corporation was
under contract to remove asbestos from the Castle
Rock, Washington, High School, the company
poured large quantities of asbestos and asbestos
slurry down the toilets and into the sewer system
leading to a publicity owned treatment works
(POTW). Following discovery of the illegal
disposal, the sewer system had to be cleaned of
the asbestos contamination and the contaminated
POTW sludge disposed of appropriately.
U.S. v. Louisville Edible Oil Products. Inc. (W.D.
Ky.): The illegal removal of asbestos from two
facilities undergoing renovation and the release
of asbestos to the air led to sentencing of the
defendants. Louisville Edible Oil Products, Inc.
(LEOP) was sentenced to pay a $350,000 fine,
with $50,000 conditioned upon LEOP spending
$125,000 on clean up of the asbestos. On January
8, 1993, in addition to LEOP, the other
defendants, Presidential, Inc., Raymond Carl
Mirrillia, Jr. (a former Vice-President of LEOP),
and A. Dean Huff (President of Presidential, Inc.,
and a former Vice-President of LEOP) were
sentenced. The individuals each were sentenced
to six months of in-home incarceration, to pay the
cost of their electronic monitoring, to two years of
probation, and a $2,000 fine. Presidential was
sentenced to a $50,000 fine.
This case is significant because of the important,
precedential decision handed down in 1991 after
LEOP appealed the indictment to the U.S. 6th
Circuit Court of Appeals. Because the local air
pollution control agency had previously fined
LEOP for the asbestos removal, LEOP argued
that, because EPA and the local agency worked in
concert, EPA's subsequent pursuit of criminal
sanctions violated the U.S. Constitution's
prohibition against double jeopardy. However,
the appellate court ruled that EPA and the local
entity represented separate sovereigns, so that
EPA's pursuit of criminal sanctions did not
constitute double jeopardy, thus leaving EPA free
to pursue criminal enforcement despite prior local
action. The U.S. Supreme Court declined to
review the case. This decision is significant
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because it allows EPA to backstop local agencies
by seeking federal penalties if necessary.
U.S. v. Ponied Manr4nfr_et_al. (N.0. CaL): The
unpermitted dredging and disposal by a San
Francisco boat yard of its dredged spoils into San
Francisco Bay led to a two-year prison term for
the individual most responsible. The company
president knew that he needed a U.S, Army Corps
of Engineers permit to dredge the channel to his
boat yard in order to bid for U.S. Navy repair
work. In addition to a two-year prison sentence,
Manning was sentenced to pay a fine of $5,000.
James was sentenced to a six-month prison term
and a fine of $2,000. The company was sentenced
to a $10,000 fine and to three years of probation,
A civil consequence of the convictions has been
that the boat yard has been placed on the list of
facilities ineligible-to receive US. government
contracts.
U.S. v. Dennis Marchuk.et al. (E.D. Pa.):A
lawyer-developer was sentenced to two years in
prison and a $25,000 fine for violations of the
CAA, CERCLA, and TSCA at a Superfund site
contaminated with asbestos and PCBs. But the
sentencing judge only gave half the permissible
sentence enhancements because the site cleanup
will involve substantial costs. The court observed
that the site had asbestos problems at the time
Marchuk acquired it, and that he had spent more
than one million dollars removing asbestos from
buildings.
Dennis Marchuk, a lawyer and real estate
developer {president of Strathaven Realty, Inc.)
from Crystal take, Illinois, was sentenced for
illegally disposing of friable asbestos and
improperly storing PCBs at the East 10th St.
Superfund site in Marcus Hook, Pa, On July 23,
1993, the sentencing judge concluded that
Marchuk was guilty of "ongoing, continuous, or
repetitive" releases of hazardous substances. In
1986, Marchuk (or his company) had purchased
the Marcus Hook Business and Commerce Center, a
40-acre former FMC manufacturing plant. During
1987 and 1988, Marchuk had contractors Michael
Kelly and Robert Tann remove asbestos. Marchuk
and his employees used heavy equipment to bury
thousands of bags of asbestos on the site. PCB
violations were committed when he had
transformers drained and then stored the PCB
liquid in unmarked drums in various buildings for
a number of years. Marchuk also submitted false
leases and other financial information to banks
financing part of the redevelopment project.
Two of Marchuk's co-defendants were also
sentenced. On October 8, 1993, Jeanne Alvarez,
Vice-President of Marchuk's real estate company,
was sentenced to 36 months of probation and 100
hours of community service upon her guilty plea to
three felonies for one violation of CERCLA and
two of bank fraud. Robert Tann, a co-owner with
Michael Kelly of the demolition contractor that
worked on the site, was sentenced to two years of
probation and 150 hours of community service for
failing to remove all asbestos before demolishing
a building. Sentencing of Kelly is pending.
IJ,S. y.Metrft!Eechnology. et al. (N.D. Tex.}: Prison
sentences were imposed on the businessmen
culpable for discharging hazardous wastewater
into the public sewers of the City of Irving, Texas.
In manufacturing electronic circuit boards, the
defendants used acids and heavy metals such as
cyanide, lead, copper and nickel. Employees used
a temporary "cheater" or by-pass pipe to divert
wastes directly to the city sewer instead of
sending them to the city's pretreatment system.
The scheme was designed to save the expense of
operating a waste water treatment system and to
evade the conditions imposed by the municipal
ordinance prescribing CWA pretreatment
requirements. Pursuant to a search warrant, CID
surreptitiously monitored the discharge with the
use of an automatic sampler. By timing the high
concentrations of metals and acids being
discharged without treatment, evidence also was
obtained which indicated that the "cheater"
pipe was removed quickly and the waste was
properly treated whenever a city inspection was
imminent.
In February 1993, each defendant had pled guilty
to one or more CWA violations. On May 7, 1993,
John Edward Klein, owner of Klein PC, Inc. a
personal computer company, was sentenced to
twenty months in federal prison and a year of
probation. Klein's company was fined $15,000.
Mark Edward Jones, a foremen at Metro
Technology, Inc. and the brother of a third
defendant, was sentenced a year in prison and a
year of probation. On May 28, 1993, defendant
Terry Wayne Jones was sentenced to two years of
imprisonment, but not fined because of Ms poor
financial status. His company, T.W. Jones &
Associates, Inc., formerly Metro Technology, Inc.,
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x
was fined $5,000 and sentenced to five years of
probation. Both companies, Klein PC and T.W.
Jones, which shared operating premises at the
time of their violations, were ordered to publish
advertisements in the Water Federation Journal,
a trade publication, explaining the nature of
their offenses and the punishment received.
U.S. v. Michelle Irene Toint Venture (W.P. Wa.):
Plastics dumped at sea are deadly to marine
animals that ingest them. On November 8, 1993,
in the first criminal prosecution ever to enforce
the provisions of an international treaty that
prohibits the disposal of plastics at sea, the
operators of a large "fish-factory" vessel were
sentenced to pay a $150,000 fine over a five-year
period, with $50,000 to be paid on the day of
sentencing, and to a five-year term of probation,
On April 13, 1993, the Michelle Irene Joint
Venture, dba Golden Age Fisheries, entered its
plea of guilty to a charge of knowing disposal of
plastics into the sea in July 1989. At the time of
the offense, the Michelle Irene Joint Venture was
composed of three Washington-State
corporations, namely, Westcod II, Inc., Simonson
Enterprises V, Inc., and BTIIV, Inc. These business
partners were held subject to the conditions of the
five-year term of probation.
The dumping of plastics by American flag vessels
was outlawed on December 31, 1988, with the
implementation of Annex V of the International
Convention for the Prevention of Pollution of
Ships, known as the MARPOL Protocol, adopted
in accordance with the Act to Prevent Pollution at
Sea from Ships. Former crew members provided
information to EPA that they had dumped
plastics overboard under orders from management
while the vessel was at sea beginning in
December 1988. The vessel is a 253-foot fish-
processor that uses large quantities of plastic
bags, liners, straps, and containers. Although the
vessel was equipped with a state-of-the-art
incinerator capable of burning plastic, a fire
shortly after it left port in December 1988
rendered the incinerator virtually inoperable
during the time of the dumping at sea.
U.S. V.Montgomery Tank Lines, et a]tfN.D. Ind.):
Sentences were imposed on those culpable for
failure to report the April 1987 release of over
30,000 gallons of hydrochloric acid in Gary,
Indiana. The spill created a cloud of acid vapor
that forced the evacuation of over 2,000 people,
caused over 100 people to receive medical
treatment for exposure to the fumes, and caused a
nearby freeway to be closed. The spill occurred at
a facility owned by a national truck carrier,
headquartered in Florida. At the sentencing on
March 18, 1993, the judge said that earlier
notification would have speeded up the cleanup
and helped prevent aggravating the situation.
Gordon D. Babbitt, a former Vice President of
Montgomery Tank Lines, Inc. (MTL), was sentenced
to one year in jail (nine months suspended), a fine
of $120,000, and two years of probation. He
pleaded guilty to a CERCLA felony charge of
failing to promptly report the spill. MTL also
pleaded guilty to the CERCLA charge, and was
sentenced to pay a fine of $150,000, to reimburse
the government for cleanup costs, resolve citizen
claims against MTL arising from the spill, and to
pay a $4,000 fine to the Gary Indiana Sanitary
District. Three other MTL employees pleaded
guilty to CWA misdemeanor violations for
allowing the acid to enter the sewer system, and
were sentenced to fines of $2,500 each, and in one
case to a one year term of probation.
The spill occurred at a tank storage facility
owned by MTL, and used by the Gary Products Co.
The president of Gary Products, William Keagle,
who was indicted in 1990 for his failure to
immediately report the spill, previously pleaded
guilty and was sentenced to probation. The
investigation continued and determined that the
MTL defendants had tried to hide their
knowledge of the spill and even their role in
arranging for the acid to be shipped to the
facility.
U.S. v.Myers (W.D. Mich.]; On July 1, 1993, the
U.S. District Court for the Western District of
Michigan, sentenced William Myers for violating
CERCLA's prohibition against knowingly
transporting hazardous waste without an
accompanying manifest. Myers was sentenced to
one year in prison, and ordered to pay restitution
in the amount of $50,000 to the EPA. The
restitution was for costs EPA had incurred in
disposing of drums of hazardous waste which
Myers had paid to be shipped in a trailer from
his property in Cassopolis, Michigan, to a
parking lot in Ohio, and abandoned. Myers was
also sentenced to one year of supervised release
after his prison term, and to 416 hours of
community service.
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Myers is the owner and lessor of property in
Cassopolis, Michigan. Myers was also a Trustee of
the Town of Cassopolis. A lessee of his property
operated a plastics manufacturing business at the
site before going out of business and abandoning
drums of chemicals, including hazardous wastes,
at the property. Myers unsuccessfully attempted
to have officials associated with the lessee
remove the drums. Failing at that, Myers
purchased a trailer and paid a person to load the
drums onto the trailer, drive it to the parking lot
of a facility in Ohio, at which a former manager
of the plastics manufacturer was then employed,
and abandon it. Myers did not inform the driver
that the drums contained hazardous material,
and did not prepare manifests to accompany the
wastes. EPA's costs associated with disposing of
the waste are approximately $180,000 to date.
LLS. v. pjorthwest Etch Technology. Inc.. et aL(P.
Wa.): Sentences were imposed on a photo
chemical milling company in Tacoma,
Washington and its two top officers, for dumping
heavy-metal laden wastewater into a storm
drain leading directly to Puget Sound. After the
company had been denied an NPDES permit to
discharge treated wastewater to the sanitary
sewer system by the City of Tacoma, the company
made false representations to the City that the
company would utilize a new closed loop
wastewater recycling system that would generate
no wastewater so that it would not need a permit.
Surveillance established that the company was
in fact discharging its wastewater into its
parking lot storm drain before daybreak using a
portable PVC pipe apparatus. The investigation
determined that approximately 1/2 million
gallons of wastewater had been illegally
discharged during at least one year. The company
is a subcontractor producing precision metal parts
for a major contractor with NASA.
On May 21, 1993, Samuel Edward Emery, Chief
Chemist for Northwest Etch Technology, Inc., was
sentenced to two months of home detention
(monitored electronically), two years of
probation, and to a fine of $1,000, following his
plea on February 25,1993, of guilty to one count of
violating the CWA. On March 29,1993, company
President Carl Leroy Whinery was sentenced to
four months of home detention, four years of
probation, and a fine of $2,000, following his plea
on February 25,1993 of guilty to CWA violations.
Whinery had also pleaded guilty on behalf of
the corporation, which was sentenced to five
years of probation and fined $25,000.
U.S. v. Orkin Exterminating Co. (W.D. Va.): For
committing approximately 300 violations of state
and federal pesticide regulations while on
probation for prior offenses, and 200 more
violations that occurred subsequent to the
completion of probation, and by failing to report
such violations, a national pest exterminating
company was found to have violated the terms of
its probation. In 1993, the U.S. government
initiated a proceeding to enforce the terms of
probation imposed after a 1988 conviction of
Orkin for FIFRA violations that resulted in the
death from pesticide poisoning of an elderly
Virginia couple. On June 1, 1993, the court fined
Orkin $35,000 for having violated the terms of its
probation. This case sends the message that
probation is not a meaningless sanction, and that
the probationer will face additional penalties if
environmental compliance is not vigorously
maintained.
Orkin Exterminating Company was convicted and
sentenced in 1988 for violating FIFRA during an
application of the fungicide VIkane. The court in
1988 imposed the maximum fine allowed,
$500,000, but suspended $150,000 of that amount,
required Orkin to perform 2,000 hours of
community service, and placed Orkin on two years
of probation. Among the conditions of probation
was a requirement to obey federal, state, and
local laws and to notify the court of any
violations, which Orkin thereafter failed to do.
U.S. v. Pacific Aqua Tech Ltd.. E.D. Wa.): On
September 15, 1992, Gerhard Herman Zimm, Sr.,
his daughter Brigette Zimm Punch, and Pacific
Aqua Tech Limited were charged with conspiracy
to violate CERCLA, conspiracy to violate the
work practices and operating standards of the
Clean Air Act, and with violations of CERCLA.
Zimm and the corporation were charged with a
knowing endangerment count under CAA. On May
4, 1993, all three defendants entered guilty pleas,
as the result of negotiations with the Assistant
U.S. Attorney. Brigette Zimm Punch entered a
guilty plea to a pre-1990 misdemeanor violation
of the Clean Air Act. Gerhard Herman Zimm and
the corporation were placed on probation for four
of the charges on the following conditions: they
must fund a trust annuity having the face value of
$1,000,000 twenty years from the date of the
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F
sentencing, naming as beneficiaries the past
employees of Pacific Aqua Tech Limited from the
date of purchase or possession of the facility by
Zimm, with the exception of Zimm, Punch, and
anyone related to either of them. The trust is to
pay the cost of medical and associated expenses of
asbestosis or asbestos-related diseases
commencing in 20 years and lasting for the life of
the last beneficiary to die or 60 years from the
date of sentencing, whichever is the lesser period
of time. Zimm and the corporation are also
required to adequately contain all asbestos in the
corporation's facility and to pay for all Superfund
costs in the emergency response action that was
taken at the corporation's facility in October
1991.
U.S. v. Pacific NW Jgrminals. Inc.. et al. (D.
Wa.): The chief executive officer of a marine
terminal company was sentenced to six months of
home detention, one year of probation, and a
$2,000 fine. After saying that the asbestos
removal and disposal regulations was too costly
and time consuming, he then directed his
employees to remove asbestos from the pipes of
his large bulk tank storage facility at the Port of
Tacoma, to drop the asbestos.to the ground and to
abandon it. The asbestos was subsequently
cleaned up by Port of Tacoma contractors under the
direction of EPA's Superfund.
On March 19, 1993, Pacific NW Terminals, Inc.,
and Ellis (Ray) Riser, the company's owner and
chief executive officer, were sentenced. The
company received a $10,000 fine and was ordered
to pay approximately $17,000 in restitution to the
Port of Tacoma. On January 8,1993, Kiser and the
company each had pled guilty to a one-count
violation of the Clean Air Act. They admitted to
the knowing disposal of at least 260 linear feet of
dry friable asbestos in a concentration of
approximately 75% in violation of the
applicable work practices and operational
standards, during the period April 1988 to June
1989.
U.S. v. Nobert Pohj (D. NM): In the first
environmental criminal case in New Mexico
resolved with a guilty plea, Nobert Pohl, the
former owner of Service Circuits, Inc., a circuit
board manufacturing facility located in
Albuquerque, New Mexico, entered a guilty plea
on Wednesday, September 22,1993, to two counts
of storage and disposal of hazardous waste
without a permit in violation of RCRA, and one
count of violating the City of Albuquerque
pretreatment ordinance, promulgated pursuant to
the CWA. Pohl was indicted on April 7,1993, by
a federal grand jury for these violations as well
as the failure to submit quarterly reports to the
City as required by the wastewater discharge
permit.
Pohl generated hazardous waste at the metal
plating facility in Albuquerque from 1985 to 1989.
Operations involved the electrolytic plating
methods used to introduce the metallic phase onto
circuit boards. The process involved dipping
boards into acidic solutions containing heavy
metals. Solvents were used to clean and dry the
boards and printing inks were used for labels.
During this time, Pohl stored listed and
characteristic hazardous wastes on site. Pohl
also improperly discharged lead contaminated
wastewater into the City of Albuquerque's sewer
system. On several occasions, Pohl received
information from the State of New Mexico and
City of Albuquerque regarding the proper
management of hazardous waste. In 1989, Pohl
ceased operations and abandoned the facility.
EPA and the State of New Mexico spent hundreds
of thousands of dollars removing contaminated
soils and 150 containers of hazardous waste from
the site to permitted disposal facilities. PoM's
sentencing was scheduled for December 20,1993.
LLS. v. Puregro Company (S.D. Ca,): A major
agricultural pesticide applicator was sentenced to
a $100,000 fine, and to pay $3,000 in restitution to
the Imperial County Health Department and
$16^00 to EPA's Superfund, after one of its former
managers ordered the dumping of at least ten
truckloads of contaminated soil in a dry arroyo
leading to the New River near Calexico, Ca. The
manager ordered that cardboard be taped over
the company-name signs on the trucks, and he
instructed the drivers to take circuitous routes to
the dump site. Elevated levels of the pesticides
dibromomethane, dichloropropane, and
trichloropropane, as well as DDT and cadmium,
were detected there. The company completed an
EPA-supervised cleanup of the site in July 1992,
during which over 100 truckloads of contaminated
soil were removed from the site and disposed of
properly in a hazardous waste landfill.
On January 14,1993, Puregro Company, aka Brea
Agricultural Services, of Heber, Ca., a subsidiary
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of Unocal, pled guilty to one count of knowingly
transporting a hazardous waste to an unpermitted
facility and was immediately sentenced. The
investigation into the former manager's conduct is
continuing, and further charges are expected.
U.S. v. William P. Reilly and Tt Patrick Dowd.
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FY1993 Enforcement Accomplishments Report
year period of supervised release upon completion
of his prison sentence. Defendant Saroni Sugar
and Rice, Inc., pled guilty to one count of
negligently discharging pollutants and was
sentenced to a $25,000 fine. Separate from the
plea agreement, the corporation will pay $50,000
in restitution to the Oakland Police Department
and the Alameda County District Attorney's
office for environmental law enforcement
purposes. Sarman, Inc., which is now defunct, was
sentenced to two years probation and no fine.
Saroni is the president of both Saroni Sugar and
Rice, Inc., dba Saroni Total Food Ingredients, and
of Sarman, Inc., dba A&L Trucking, of Oakland,
California. A&L Trucking transported liquid food
products in tank trucks to food manufacturers, and
then, to accommodate its customers, A&L also
removed and transported their wastewater that
was too acidic to discharge into local sewer
systems. Saroni dumped the waste illegally into
the storm drain on the premises of Saroni Sugar
and Rice, Inc.
U.S. v. Robert H. Schmidt and Lawrence B.
Schmidt (D, 111.): Caught after taking deceptive
actions to escape detection, the two top officials
of an electroplater received heavy sentences for
serious violations of CWA pretreatment
requirements. On September 10, 1993, Robert H.
Schmidt, President and owner of Rock Island
Plating Works of Rock Island, Illinois, who pled
guilty to three environmental felonies, was
sentenced to 30 months of incarceration, a fine of
$50,000, and two years of probation. His son,
Lawrence B, Schmidt, a supervisor at the firm,
who also pled guilty to several violations, was
sentenced to twenty-four months of incarceration,
a fine of $25,000, and two years of probation.
Rock Island Plating is a job-shop electroplater,
which discharges into the Rock Island city sewer
system. A search warrant was executed at the
facility in 1992, and covert monitoring was
conducted, which revealed violations of numerous
electroplating standards. Witness statements
revealed that the Schmidts had routinely
ordered inadequately treated plating wastes to be
dumped into the sewer. They also directed that
monitoring probes installed by the City be
removed in order to disguise their discharges.
Hazardous electroplating waste was also dumped
in back of the facility. Furthermore, Robert
Schmidt submitted a certification to the City
that contained a forged engineer's certification
that the pretreatment system was adequately
designed and operated.
U.S. v. Floyd Sptaggins, et al. (W.D. Ok,): For
disposing of methylene-chloride based paint
stripper into a lagoon in violation of RCRA, an
aircraft refurbishing company, its president, and
its general manager were sentenced on February 3,
1993. This followed their guilty pleas on
December 3, 1992, each to the felony of
unpermitted disposal of hazardous waste.
Floyd Leon Spraggins is the owner and President
of Cimarron Aircraft Corporation, located at the
City of El Reno Municipal Airpark in El Reno,
Oklahoma. Kenneth Lynn Norris is the general
manager of operations for Cimarron at the
airpark. Spraggins and Norris directed that the
company's hazardous waste, generated from
stripping paint from aircraft, be disposed in a
lagoon at the airpark. Spraggins was fined
$5,000 and sentenced to two years of probation and
to four hours per week of community service
washing police vehicles. Norris was fined
$2,500. The company was sentenced to pay a fine
of $100,000, of which $50,000 was suspended in
recognition of its compliance and remedial efforts,
and if the company completes a term of probation
without additional violations.
In re; Tohn W. Stecldiqg: On February 13, 1993,
John W. Steckling, an attorney in Clarkston,
Michigan, was suspended from the practice of law
for 60 days by the Michigan Attorney
Disciplinary Board. The suspension stemmed from
Steckling's submittal of false analyses to EPA
concerning an underground injection well.
Steckling's partnership, J & J Investments, was
convicted for the falsifications on August 27,1990.
Steckling and his partnership owned and
operated a laundromat Waste laundry water is
disposed of through a permitted underground
injection well. J & J was required to send in
periodic lab analyses of the wastewater.
Steckling paid for the first required analysis, and
submitted the report to EPA. Thereafter,
Steckling failed to obtain any more analyses.
Instead, from 1987 through 1989, Steckling
directed his secretary to change the date and
report number on the original analysis, and to
submit the doctored report to EPA. J & I
Investments was charged with providing false
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statements under the Safe Drinking Water Act,
and was assessed a fine. The U.S. Attorney then
brought Steckling's actions to the attention of the
Attorney Disciplinary Board.
U.S. v.Leroy Stern(W.D. La.): The false labeling
of unregistered pesticides resulted in conviction
and sentencing. Leroy Stem owns and operates
Stem Chemtech, Inc., of Monroe, Louisiana, that
manufactures, packages, sells, and distributes
commercial cleaning supplies and various
pesticide products. From December 1988 through
April 1992, Stern manufactured and sold
pesticides that were not registered with EPA.
Stern purchased legally registered pesticide
products from various companies and ordered the
company chemist to copy formulas off the labels
of these legal products. The chemist formulated
the pesticides, which Stern packaged and sold
under a false FIFRA subregistration number. Stern
filed annual reports with EPA for the years 1989-
92 that falsely stated that the company had not
produced pesticide products when, in fact, the
company had produced and sold large quantities
of these products.
On December 8, 1992, Leroy Stern pleaded guilty
to a FIFRA misdemeanor charge for the sales of
unregistered pesticides, and Stern Chemtech
pleaded guilty to one count of submitting false
pesticide reports to EPA in violation of 18 U.S.C.
§1001. On March 17, 1993, Stern Chemtech was
fined $500,000; however, the court suspended
approximately $455,000 based upon actual
payment of $45,000 in fines and the costs of
investigation and prosecution, and contingent upon
the successful completion of probation and the
payment of the costs of supervision. Leroy Stem
was sentenced to five years of probation and was
ordered to pay the costs of his supervision.
U.S. v. Michael Strand quist (D. Md., aff'd 4th
Gin); On May 13,1993, the Fourth Circuit Court of
Appeals affirmed the defendant's conviction and
sentence in a water pollution case, upholding the
decision of the trial court in all respects.
In November 1991, Michael Strandquist was
convicted of violating the CWA by pumping raw
sewage into a storm grate at the boat basin of
Halle Marina, Inc., of which he was the general
manager, in Chesapeake Beach, Maryland. In
February 1992, he was sentenced to six months in
prison, six months of home detention, and one year
of probation. He appealed his conviction,
asserting that the government did not present
sufficient evidence proving that the discharge
reached navigable waters of the United States,
although he admitted that he pumped raw
sewage into a storm grate, raw sewage was found
emerging out of a pipe into navigable waters, and
red dye, poured into the storm grate, flowed out of
the same pipe into the waters. He appealed his
sentence on four grounds, one of which was that
the sentencing judge improperly increased his
sentence without specific proof of environmental
contamination.
The appellate court affirmed his conviction and
sentencing in all respects. As to the points
mentioned, the court ruled that the evidence
presented and the reasonable inferences arising
from it support both the conviction based on
conclusion that sewage discharged by the
defendant in fact reached navigable waters, and
also the increased sentence based on the
inevitable occurrence of environmental
contamination as the sewage reached the waters.
IJ.S. v. Richard E. Strom (D. Wy.): The pesticide
poisoning of bald eagles led to the sentencing of a
rancher to two years of probation and a $10,000
fine on February 24,1993. Dick Strom, operator of
a sheep ranch near Laramie, Wyoming,
unlawfully distributed and misused pesticides to
kill coyotes and other predators. He illegally
laced sheep-bait carcasses with thallium sulfate,
sodium cyanide, and a chemical named
"compound 1080," which resulted in the deaths of
bald eagles. He unlawfully distributed
pesticides by selling them to others while not
being a registered dealer. On November 20,1992,
he pled guilty to five counts of violating FIFRA.
This case is one of several that developed from an
undercover investigation of the U.S. Fish and
Wildlife Service, in cooperation with EPA.
p.S. v. Weaver Electric Company, et al. (D. Col.):
Several individuals received heavy sentences for
the illegal disposal of PCBs at several locations
in Colorado, and a company was ordered to pay a
fine of $200,000 and to spend at least $300,000
more for environmental remediation at two
company facilities in Denver. On January 11,1993,
Michael Slusser, who was hired by Weaver to
dispose of the PCBs, was sentenced to one year in
prison and one year of probation. On December 21,
1992, Weaver Electric Company, which is engaged
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Jf"*"\
®
in the business of restoring old transformers and
other electrical equipment for resale, was
sentenced as stated above. Clayton Regier,
Weaver plant foreman, and Bud Rupe, another
employee, each were sentenced to five months in
prison, one year of probation (including five
months of electronically monitored home
detention), and to pay $5,000 in restitution to the
Superfund for PCB clean ups. Sentencing is
pending for another individual, and indictment is
pending for three other individuals.
U.gf v. Michael Weitzenhofffnd Thomas
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FY1993 Enforcement Accomplishments Report
Sequoyah County Utility Service Authority, that
operates the water treatment plant at Lake
Tenkiller, Oklahoma. In March 1992, Wright
pled guilty to three counts of violating 18 U.S.C,
1001 by filing with a county health department
monthly operational reports containing false
turbidity data as to the contents of the drinking
water. In April 1992, he was sentenced to twelve
months of probation.
But he reserved the right to appeal his federal
conviction for submitting false reports through
the county health department to the Oklahoma
State Department of Health, on the basis that he
did not know that a federal agency had
jurisdiction over the false reports that he
submitted to the county. He also asserted that
false statements submitted to the county
department of health are not a matter within the
jurisdiction of an agency or department of the
United States if the SDWA program has been
fully delegated by EPA to state and county
officials. He contended that by delegating the
program, as allowed by federal regulations, the
federal government lost enforcement authority
under the SDWA.
State Enforcement Actions
Alaska
State of Alaska v. Stewart Smith. (Anchorage
District Court): Stewart Smith, a real estate
broker and owner of an auto repair and towing
shop, pleaded no contest to seven misdemeanor
violations of Alaska oil pollution and hazardous
waste laws. Facts brought out at the sentencing
hearing were that in the spring of 1992, Smith
directed an employee to illegally dump
approximately 12 barrels of contaminated waste
oil at two sites. Four barrels leaked at one site
causing over $18,000 in cleanup and site
remediation costs. Smith also pleaded no contest
to the charge of illegal management of hazardous
waste at his auto repair shop.
The case was significant for the several reasons.
It was the first State environmental criminal case
involving actual Jail time for the defendant. It
was the first time in the state that
"Crimestoppers" was used to publicize the
problem of illegal dumping and provide a means
for the public to report suspected environmental
crimes. It was the first time a business owner was
convicted of environmental crimes for directing an
employee to commit the actual dumping in a
failed attempt to insulate himself from criminal
liability. Finally, at the prosecutor's suggestion,
the court imposed probation requirements
involving both environmental education for the
auto shop industry regarding the proper handling
of waste oil and contaminants, and hands-on
cleanup of the environment.
Colorado
State of Colorgdo v. CONOCO (penwi; CO); In
coordinated multi-media State and EPA actions,
Colorado Department of Health's NPDES and
RCRA programs took enforcement actions against
Conoco to clean up seeps to Sand Creek. The State
ordered injunctive relief and collected an NPDES
penalty of $200,000. In a related citizen's CWA
suit, the Sierra Club settled with Conoco for
$280,000 per year for five years for a
Supplemental Environmental Project along Sand
Creek. EPA supported these settlements as
recovering Conoco's economic benefit ($200,000
cash penalty to CDH) and appropriate gravity in
the SEP negotiated by the Sierra Club.
Cjpofs Brewing Company (Golden, CO): A
compliance order assessing a $1,050,000 fine was
issued by the State of Colorado to Coors Brewing
Company (CBC) on July 21,1993, citing violations
of the State SIP resulting from under-reported
emissions of VOCs from the brewing and
packaging of beer. VOCs are known precursors in
the formation of ozone and the Coors brewery is
located within the Denver ozone non-attainment
area. The emission of VOCs from CBC is
estimated to exceed 1,000 tons per year, making
mis a major source of VOC emissions and subject to
non-attainment area new source review
permitting requirements. This case is of national
interest because the actual emissions from the
facility are substantially higher than previously
assumed by regulatory agencies and is likely to
result in the fact that many large breweries across
the country are major, rather than minor, sources
of VOCs. This is very significant for such sources
that are located in ozone non-attainment areas, as
many older breweries are, as well as for PSD
permitting in attainment areas. EPA is
considering a national brewery enforcement
initiative as a result.
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Delaware
AA Waste Oil Service; On August 19,1993, Paul
Levers, owner, and Jay Morris, employee, of'the
AA Waste Oil Service were convicted of criminal
charges (D. De.) for discharge of a pollutant into
the waters of the U.S. without a permit. Each
defendant was sentenced to one year in prison and
one year probation for the violation. In addition,
Levers will be required to perform 200 hours of
community service, and Morris, 100 hours. This is
a case of "midnight dumping" that occurred in
broad daylight. Levers directed employee Jay
Morris to discharge oily water from an AA Waste
Oil Vehicle into a drain of a wash bay at the
Harrington Car Wash. The discharge occurred
when Morris pretended to wash the vehicle, but
was actually discharging the oily waste water
from heating oil tanks that had been collected by
AA Waste Oil. AA customers paid up to $1.00 per
gallon to have the water removed from their
underground heating oil tanks. Levers directed
the discharge of the water so that AA Waste Oil
would not have to pay $0.50 per gallon to a
certified company to dispose of the waste water
properly. The oily water discharge was traced
from the drain of the car wash to a storm water
ditch from where it eventually empties into the
Delaware Bay. Both State and EPA attorneys
and.enforcement agents worked together on the
investigation and prosecution of the case.
Florida
Smurfit Industries. Inc. d/big Austill Packaging v.
State Department of Environmental Regulation
(Fla. 1st Dist. Ct. App.): This is a case involving
postjudgment proceedings to enforce payment of
stipulated penalties in a consent final judgment
against Smurfit Industries, Inc., a Delaware
corporation. The Austill Packaging Plant in
Jacksonville is a subsidiary of Smurfit. Air
Pollution Rules promulgated by the Florida and
the City of Jacksonville required Smurfit to
install and operate emission control equipment to
reduce VOC emissions at the Austill plant in
Jacksonville by no later than the end of 1982.
Smurfit did not comply with the rules, and
installed no pollution control equipment. In 1983,
the FDER with the City of Jacksonville as co-
plaintiff sued in circuit court for enforcement of
the rules and for civil penalties. EPA filed its own
administrative proceeding against Smurfit. The
parties agreed to a settlement in the early part of
1985. EPA, though not a party to the state
lawsuit, signed the Stipulation. Smurfit was
required to show compliance with the laws and
rules regulating air pollution by the end of 1985.
Smurfit "sold" the Austill plant to Austill
Packaging Company on October 1, 1985. In 1987,
the FDER along with the City of Jacksonville
filed a Motion for Penalties, alleging Smurfit had
violated the consent final judgment by failing to
pay the stipulated penalties. The circuit court
rejected Smurfit's defenses, and enforced the
stipulated penalties provision by awarding the
face amount of the stipulated penalties. The
circuit court entered its Order Enforcing Final
Judgment and Adjudging Penalties on June 13, 1991.
Smurfit appealed the decision, challenging the
trial court's interpretation of relevant provisions
of the consent final judgment and the existence of
competent substantial evidence to support the
decision. A cross-appeal filed by the FDER and
the City of Jacksonville challenged the trial
court's interpretation of the penalties provision.
The penalties provision called for doubling the
amount of penalties in the event of non-payment.
The appellate opinion filed June 15, 1993,
affirmed the lower court decision. The "sale" of
the plant did not relieve Smurfit of its obligation
to demonstrate compliance and pay the
stipulated penalties. The appellate court held
there was competent substantial evidence to
support the factual findings of the trial court and
that the trial court's interpretation of the
judgment was not unreasonable. Furthermore, the
trial court had discretion to decide whether
doubling of penalties was appropriate. Payment
in full to the FDER has been made in the amount
of $1,661,649.
Pepartment of Environmental Regulation v. S
graphic. Inc. (Fla. 17th Cir. Ct.): A consent final
judgment was filed September 24, 1993, concerning
Sun Graphic's violations of the Florida
Department of Environmental Regulation (FDER)
rules regulating the emission of VOCs into the
atmosphere. This was an action brought under
the "Florida Air and Water Pollution Control
Act", Chapter 403, Florida Statutes. In September
of 1989, Sun Graphic applied to the FDER for
permits for its lithographic blanket production
facility in Pompano Beach, Florida. Through this
action the FDER learned Sun Graphic had been
operating the facility without air pollution
operation permits from the date of its purchase in
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1981. It also had constructed several new sources
of air pollution without permits. Finally it had
been exceeding the allowable standard for
discharge of VOC to the atmosphere from its
coating mixture since July 1, 1982, Operation of
each source without a permit is a violation of the
Florida Administrative Code. By failing to
utilize reasonably available control technology,
Sun Graphic failed to limit discharge of VOC
into the atmosphere. By signing a stipulation of
settlement. Sun Graphic agreed to pay Florida,
$205,000, and add additional collection devises to
capture fugitive emissions of VOC at its
lithographic facility in Pompano Beach.
City of Vero Beach (Indian River County, FL): On
June 17,1993, a Consent Order between FDER and
the City of Vero Beach (respondent), a
municipality engaged in the generation end
distribution of electric power, was filed allowing
the respondent to implement an in-kind project in
lieu of a cash payment in settlement of matters
arising from violations of the Florida Air and
Water Pollution Control Act. The respondent is
the owner and operator of a fossil fuel generator-
located in Vero Beach, Florida. The facility was
visited by DER on April 30, 1992, and May 11,
1992. The recorder for the continuous opacity
monitoring system had been removed. Subsequent
reports submitted by the respondent failed to
mention the downtime of the recorder. In
settlement of these matters, Vero Beach chose the
in-kind penalty option that consisted of a
payment of $71,582.25 to be used in the
construction of a wet lab for the Learning Center
located in Indian River County. As a result of this
project, future generations of citizens will become
more environmentally conscious.
DER v. Martin Electronics. Inc. and Roy York, and
Roger? Winter (Fla. 3rd Cin Ct): A stipulation
and consent final judgment signed February 16,
1993, addressed alleged violations of state
hazardous waste, industrial waste, and potable
water regulations. Martin Electronics, Inc. (MEI)
is a Delaware corporation authorized to do
business in Florida. MEI is the owner of property
located in Perry, Florida. MEI manufactures
pyrotechnic devices such as fuses, grenades, and
flares. This makes the facility a generator of
hazardous waste. From December 1991 to
December 1992, the Florida Department of
Environmental Regulation (FDER) conducted
several visits and inspections of the MEI facility.
As a result of its investigation, the FDER alleged
multiple violations of solid, industrial and
hazardous waste management regulations. The
alleged violations included, among others,
failure to comply with the standards applicable
to operators of hazardous waste treatment
facilities; positive readings for microbiological
contamination; and failure to properly train
employees on handling hazardous waste.
Violations were also alleged in connection with
residues left from the burning of reactive
hazardous waste. In settlement of these matters,
the MEI agreed to pay $325,000.00 and install a
new water plant
Georgia
inland Container Corporation: The Inland
Container Corporation owns a large pulp and
paper mill discharging treated effluent into the
Coosa River in Northwest Georgia. As a result of
an internal spill, the wastewater system failed
resulting in significant NPDES permit violations
and a fish kill. The Georgia Environmental
Protection Division first issued an emergency
order closing the mill. After one week of closure,
the wastewater treatment system stabilized and
the mill reopened. A final consent order was
issued which contained a $600,000 settlement.
The disposition of the settlement was $100,000 to
the State of Georgia, $250,000 for water pollution
source reduction prior to September, 1994, and
$250,000 for water pollution source reduction prior
to September, 1997. Strict controls were
established for expenditure of the source
reduction funds.
Packaging Specialties. Inc.: Packaging
Specialties, Inc., operates a flexographic printing
press facility in Northeast Georgia. The company
is a large emitter of volatile organic compounds
into the atmosphere. An inspection by the
Georgia Environmental Protection Division
revealed the company installed and was
operating four presses without permits or without
pollution control equipment. The State issued a
consent order containing a $500,000 settlement to
be paid to the State of Georgia. The Company
was also ordered to install the necessary
pollution control equipment and receive a permit.
Idaho
Safetv-Kleen Corporation. Boise and Pocatello.
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Idaho: Three consent orders were signed over a
four-month period based on inspections performed
from 1990 to 1992. A RCRA consent order was
signed March 29,1993, concerning Safety-KIeen's
old Boise, Idaho, facility's operation of above-
ground storage product and waste tanks without
secondary containment. The order provides
conditions outlining final clean closure activities
at the facility in accordance with 40 CFR 265
standards, submittal and implementation of a
Corrective Measures Plan to address cleanup at
all of the solid waste management units and areas
of concern identified in the RCRA Facility
Assessment.
A consent order was signed on June 25, 1993,
concerning the release of mineral spirits from an
underground storage tank and inadequate
implementation of the Contingency Plan at
Safety- Kleen's Pocatello, Idaho, facility. The
order provides for the removal and partial
closure of product and waste underground storage
tanks in accordance with Safety-KIeen's
operating permit. A penalty of $7,000 was
assessed and collected.
On July 30, 1993, a consent order was signed
assessing a $3,900 penalty against Safety-KIeen's
old Boise facility for five violations of the
generator and land disposal restriction
requirements. The order also provides for
resolution of the violations.
Maryland
Kanasco: A multi-media complaint and order was
issued seeking an administrative penalty of
$25,000. The complaint alleged violations of air
pollution, water pollution, and hazardous waste
regulations. Kanasco appealed this order and the
penalty to the State Office of Administrative
Hearings. After a hearing held in April, 1993,
the Administrative Law Judge imposed the full
penalty sought by Maryland Department of the
Environment (MDE).
Kanasco Ltd. is a pharmaceutical manufacturing
firm which employed about 20 people during the
period in which the violations occurred.
Violations occurred at the company plant located
in Anne Arundel County. Synthetic penicillins
were manufactured at the site. In the water
pollution area, the company failed to report the
discharge of wastewater subject to the categorical
pretreatment standards. These wastewater were
transported to the Aberdeen WWTP on three
occasions. Air pollution violations included
failure to comply with terms of the permit-to-
operate, i.e., the company failed to perform
vapor detection surveys as required. The company
also caused nuisance odors which traveled beyond
their property lines on three occasions. In the
hazardous waste area, the company failed to
comply with the storage requirements for
generators of hazardous waste, by not
maintaining overfilling controls on a hazardous
waste storage tank. The company also failed to
minimize the release of hazardous waste
constituents, i,e., wastewater contaminated with
hazardous constituents was discharged to the
Anne Arundel County sanitary sewer system on
two occasions.
Eastern Stainless: MDE entered into a multi-
media judicial consent judgment with Eastern
Stainless Corporation of Baltimore, MD. This
action resolved certain NPDES, hazardous waste
and air pollution violations addressed in the
civil complaint filed on November 27, 1991, and
imposed numerous obligations on Eastern Stainless
to achieve and maintain compliance with the
State's environmental laws. The consent judgment
requires Eastern Stainless to implement various
corrective actions regarding NPDES, hazardous
waste, air pollution, groundwater remediation,
stormwater management, wastewater reduction,
effluent toxicity, solid waste reduction and
recycling issues. In addition, the Department
assessed a civil penalty of $1,000,000, to which a
maximum penalty credit of $702,000 was applied
for, various supplemental pollution prevention
control measures. The company's total payable
penalty was $325,450. The company agreed to
expend a minimum of $1,247,000 for pollution
prevention projects which include improvements
to air pollution control equipment, asbestos
removal, acid piping replacement, solvent
reduction, process water reuse and sludge
recycling. The judgment also provided for
stipulated penalties in the event Eastern
Stainless fails to comply with any effluent
limitation or any reporting requirement of the
judgment.
Alford Packaging. Inc.; In the first criminal
action brought by Maryland for violations of air
pollution regulations, Alford Packaging, Inc. was
charged with various criminal violations. The
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company pleaded guilty in court in August of 1993
to four counts of violation of the air pollution
regulations of Maryland. In the guilty plea, the
company agreed to pay a $100,000 penalty and to
a probationary period of two years. An
administrative case was also pursued for the
violations and a penalty of $25,000 was agreed to
by the company in September of 1993.
The company is a rotogravure printing company
located in Baltimore City, which is in a severe
ozone non-attainment area. Maryland regulations
for the control of air pollution for this type of
facility require a 65% reduction of VOC emissions
from sources with VOC emissions exceeding 550
pounds daily. Alford's emissions exceed this 550
pound level, therefore, they are required to
reduce emissions by 65%. Alford reduces VOC
emissions by ducting fumes from their printing
lines into two afterburners.
A copy of an internal company memo was
anonymously received by MDE in the fall of 1992.
The memo indicated that the company was aware
of some problems with its air pollution control
system that would cause violations of Maryland
air pollution regulations. A subsequent inspection
of the plant by MDE established that an
insufficient amount of fumes from the printing
lines were being ducted to the afterburners. This
resulted in less than the required 65% reduction
being achieved. Based on this inspection and
data about the Company's emissions, a criminal
case was pursued in the Circuit Court for
Baltimore City. The violations were corrected in
the spring of 1993, after the company became
aware of the MDE investigation.
Montana
On July 7, 1992, a Montana Department of
Agriculture (MDA) inspector observed a FIFRA
§18 Lorsban application to wheat for Russian
wheat aphid control. No observable drift was
noted; however, the inspector soon became ill and
took refuge in the landowner's house until the air
cleared. The inspector proceeded to a hospital
emergency room where she was treated with
atropine. The incident was investigated by a
second inspector and Lorsban was found on off-
target vegetation indicating that drift has
occurred. A January 4, 1993 consent order
negotiated between the MDA and the applicator
included a penalty of $200.
New Jersey
Standard Tank Cleaning Corporation; On June 10,
1993, the Superior Court of New Jersey concluded
the penalty phase of the trial of Standard Tank
Cleaning Corporation. The court had previously
found Standard Tank liable for violating its New
Jersey Pollutant Discharge Elimination System
(NJPDES) permit and enjoined Standard Tank
from discharging in further violation of its
permit. The court ordered Standard Tank to pay a
$3,960,000 penalty for 157 violations of the
effluent limitations in its NJPDES permit and
$41,825 for reporting violations during the period
of May 1988 to August 1990. The court further
found Jane Frank Kresch and Susan Frank
personally liable for two of the above-noted
violations and penalized them each $500,000 as
responsible corporate officials. In addition, the
court ordered Standard Tank, Jane Frank Kresch
and Susan Frank collectively to pay a penalty of
$266,000 for failing to pay a $175,000
administrative penalty assessed by the New
Jersey Department of Environmental Protection
and Energy (NJDEPE). The NJDEPE also revoked
Standard Tank's NJPDES permit based upon these
violations and Standard Tank has withdrawn its
challenge to the revocation.
Witco Corporation: On February 24, 1993, the
U.S. District Court for the District of New
Jersey signed a Judicial Consent Order 0CO)
between the NJDEPE, Witco Corporation, Perth
Amboy and the NJ Public Interest Group
(NJPR1G). The JCO settled a citizen suit
brought by NJPIRG in which the NJDEPE
intervened. Under the terms of the settlement,
Witco paid a penalty of $10 million for surface
water violations that occurred seven years and
agreed to a construction schedule to come into
compliance. The $10 million payment was
divided, with $7.25 million to the NJDEPE's
Clean Water Enforcement Fund for the
enforcement and implementation of the Water
Pollution Control Act, $2 million to the
Environmental Endowment for New Jersey
Inc. for environmental improvement projects,
$650,000 to the City of Perth Amboy for water
resource or pollution abatement projects, and
$1,000,000 to the Rarltan Bay Medical Center,
located in Perth Amboy, for emergency medical
training.
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Noble Oil Company. Inc.: Noble Oil Company,
located in Tabernacle, N.J, illegally operated a
hazardous waste storage and treatment facility.
The facility recovered waste oil to be used as
a fuel. Since waste oil is regulated as a
hazardous waste, the facility operations are
subject to NJDEPE's hazardous waste
regulations. On January 7, 1993, the Superior
Court found Noble liable for numerous
hazardous waste violations, and ordered Noble
to cease operations at its Tabernacle facility
until it obtained all necessary permits, paid
a penalty of $250,000 and remediated
petroleum hydrocarbon contaminated soil
throughout its site. The NJDEPE subsequently
revoked Noble's interim authorization to
operate a storage and treatment facility, and
denied its application for a permit. The
facility is currently in Chapter 11 bankruptcy.
Exxon Company. USA • Bay-wear Refinery.
Linden. N.T.: On March 31, 1993, NJDEPE
executed an AGO with Exxon providing Exxon
time to obtain permit modifications for its CO
boilers, Wet Gas Scrubber and Sulfur Recovery
Units and comply with the N.J. Air Pollution
Control Act. The ACO provides startup,
shutdown and malfunction allowances for a
specified percentage of annual operation time,
with stipulated penalties for exceedances of
these allowable emissions. Under the ACO,
Exxon will conduct modeling to demonstrate
non-adverse health effects from allowable
particulate emissions, and conduct stack tests
every 12 months to demonstrate compliance
with allowable particulate emissions. Exxon
also agreed to pay a penalty of million, and
stipulated penalties for subsequent emission
exceedances. Final compliance by Exxon is to be
achieved by August 29, 1995.
Chemical Waste Management/SV Farming
Mining Facility: As a result of continued clay
mining operations, more than 25 acres of
freshwater wetlands had been severely
damaged in Quinton Township, Gloucester
County, in violation of the N.J. Freshwater
Wetlands Act The NJDEPE initiated an
enforcement action against Chemical Waste
Management, a recent purchaser of the mining
business. The NJDEPE, through a
collaborative enforcement effort with the U.S.
Army Corps of Engineers, the U.S. Fish and
Wildlife Service, and with the cooperation of
Chemical Waste Management, executed an
ACO providing for the restoration of more
than 25 acres of freshwater wetlands. Under
the order, Chemical Waste Management
initiated restoration, including extensive
grading and filling and the re-establishment
of former hydrological conditions and biological
communities. The ACO also provides for the
restoration of the previously destroyed swamp
pink (Helonlas Bullata), an endangered species,
and mat is also underway. In addition, the
restoration of the swamp pink community will
be monitored and tracked, contributing to the
scientific knowledge base for this endangered
species.
New York
Anitec Image Corp.: The Department of
Environmental Conservation (the Department),
working with the Departments of Law and
Health, completed a significant enforcement
action involving Anitec Image Corp., a division
of International Paper.
Under one order, Anitec will perform a wide
array of measures to clean up all underground
contamination, reduce toxic chemical air
emissions, conduct an environmental compliance
audit, and develop accident prevention plans
for its Binghamton plant. The company paid a
civil penalty of $1,450,000 for past violations
of the ECL.
According to the terms of the consent order,
Anitec must:
• Hire an independent auditor to conduct a
comprehensive environmental audit of the
company's compliance with state and federal
pollution control laws;
• Fund an on-site environmental monitor to
verify compliance with environmental laws and
the remedial measures required under the
order;
» Carry out measures to identify and
significantly reduce sources of air pollution at
the plant;
• Develop and implement a Best Management
Practices plan to correct past violations and
ensure future compliance;
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* Complete a comprehensive Environmental
Improvement Program to reduce significantly
the risk of releases of hazardous wastes or
other contaminants to the environment;
i Pay a total of $100,000 to Broome County
for the purchase of equipment or other resources
needed to improve the county's emergency
response capabilities;
* Pay $200,000 to the Health Department to
offset costs of future health studies of company
employees and nearby residents.
Under a second Order, Anitec is conducting an
investigation of the nature and extent of all
hazardous waste contamination at the site, and
will develop a comprehensive remedial
program to cleanup all hazardous waste
contamination. This program has an estimated
cost of $15 million.
Bristol-Myers Squibb Comparjy: The Department
and Bristol-Myers Squibb Company entered into
a multimedia enforcement order and a
Memorandum of Understanding which promote
significant risk reduction and pollution
prevention at its facility in the Town of
Dewitt (Onondaga County).
The multimedia order provides that Bristol
will:
» perform a site assessment consisting of a site
characterization study and a groundwater
monitoring program. The site assessment
requires the complete characterization of site
contamination as well as the implementation
of appropriate remedial actions;
» implement an approvable air pollution
control plan which will include point source
testing, source inventory and permitting, air
modeling, fugitive emission testing and control
and an odor control program; and
» fund a compliance audit of its facility by an
independent consultant approved by the
Department.
The MOU, which is enforceable as
administrative order on consent, requires:
an
• an approvable accident prevention planning
program;
• an approvable emergency response program
which will ensure that, local emergency
response teams are trained and equipped to
respond to incidents at the facility; and
• implementation of a toxic chemical reduction
plan which will achieve a 50% reduction of
total toxic chemical releases at the facility by
the year 2000.
• an approvable community awareness program,
to include a community advisory group;
Western New Yfiffc Nuclear Service Center
Valley): The Department signed a Federal and
State Facility Compliance Agreement "FSFCA"
and Addendure for the Western New York
Nuclear Service Center ("West Valley"). A
FSFCA is the final negotiated document, that,
under EPA guidance, resolves RCRA compliance
violations at a federal facility. Parties to the
FSFCA include US DOE, NYSERDA and EPA
Region II. The FSFCA obviates the need for
literal compliance with RCRA requirements by
setting forth alternative compliance standards.
This is the third document the Department
has negotiated for West Valley. A correction
action order was finalized in January 1992, and
work is underway. In February 1993, a
memorandum of agreement that will provide up
to $250,000 per year to defray DEC's oversight
costs was finalized.
North Dakota
Estee Lauder: On November 2, 1990, Decom
Resources Inc., transported seven pallets (13,000
Ibs.) of off-specification Estee Lauder nail polish
from Estee Lauder in Toronto, Canada, to Health
Care Incinerators located in Fargo, North
Dakota. The off-specification nail polish was a
characteristic hazardous waste (D001). Health
Care Incinerators (HCI) is not and has never been
permitted to receive hazardous waste. EPA,
through oversight, encouraged the State to pursue
enforcement at the facility. North Dakota settled
this major international waste action on March
24, 1993. A $20,000 penalty, of which $15,000 was
stipulated, was agreed to.
Oregon
Fuel Processors, Inc.. and Wilmer Briggs,
IMuItaomah County Circuit Court, Oregon): On
December 29, 1992, Oregon DEQ assessed Fuel
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characterization at the Industrial Solvents and
Chemical Company (ISCC) site. The ISCC site is
a closed solvent recycling facility which was
abandoned by its owner in 1990. It is presently the
number one site on the Pennsylvania Priority List
for Remedial Response, The site has
approximately 189 above-ground storage tanks
containing various amounts of hazardous
materials in liquid, sludge and solid form. In
addition, there are approximately 4,266 full or
partially full drums, and approximately 2,400
empty drums left on-site. Off-site residential
wells used for drinking water have been
contaminated. The site poses a substantial risk to
public health and the environment.
Pennzoil; The DER issued Pennzoil Products
Company an order to plug its abandoned oil/gas
wells (approximately 2,000) in one year. Pennzoil
appealed the administrative order to the
Pennsylvania Environmental Hearing Board. The
case was resolved with the entry of a consent
adjudication before the Environmental Hearing
Board. Pursuant to the consent adjudication,
Pennzoil agreed to plug the wells within six years
and to reclaim the well sites. As a guarantee of
its obligations, Pennzoil posted an enhanced bond
of $75,000 contingent upon compliance with the
requirements of the consent adjudication. (The
statute limits bond liability to $24,000 and
guarantees only plugging obligations). Another
innovative provision of the consent adjudication
was Pennzoil's agreement to pay a stipulated
penalty of $8,000 per well for any wells that are
not plugged according to schedule.
Wheeling-Pittsburgh Steel Co.: The EPA, The
Pennsylvania Department of Environmental
Resources and the Natural Resources Defense
Council had originally filed a complaint in
federal court against Wheeling-Pittsburgh Steel
Corporation for five years worth of NPDES
permit violations and spill events at the
Allenport Plant on the Monongahela River.
Wheeling-Pittsburgh promised the Department
that it could settle with the agency if the
Department would do so outside the Federal suit.
The Department withdrew from the Federal suit
and Wheeling-Pittsburgh failed to settle. The
Department filed a separate complaint before the
Pennsylvania Environmental Hearing Board for
$2.2 million. Wheeling-Pittsburgh has agreed to
settle for $625,000, to pay stipulated penalties at
the rates in the federal settlement which will
only terminate when the federal settlement does,
and to include the DER in all of the
correspondence surrounding the Federal decree
remediation and improvement programs.
r
USX; On June 24, 1993, the USX Corporation
entered a consent decree addressing violations at
USX's Mon Valley Works with the U.S., the
Commonwealth of Pennsylvania, AHegeheny
County, and the citizens group, Group Against
Smog and Pollution (GASP), as a limited
intervenor. The decree requires USX to pay a
penalty of $1,800,000 divided equally among the
three governments. Additionally, USX agreed to
reduce its emissions at the Clairton Coke Works
and Edgar Thomson Works basic oxygen process
shop below applicable limits. Moreover, the
decree resolved the status of numerous coke and
steel processing units by declaring them
shutdown. The processing units were located at
USX's Clairton Plant, National Works, Duquesne
Works, Homestead Works, and the Saxonburg
Sinter Plant.
US AIR et al.: The Pennsylvania Department of
Environmental Resources issued two
Administrative Orders - one to all of the
passenger carriers and the landowner, Allegheny
County, and one to all of the cargo carriers, the
United States Air Force, the Pennsylvania
National Guard and the landowner, Allegheny
County to cease the unpermitted discharge of
spent deicing fluids from the airport. The two
military organizations voluntarily complied and
all others appealed from the Orders. The
Department, the carriers, and Allegheny county
have a settlement whereby the carriers agreed to
pay a civil penalty of approximately $60,000, to
construct remote deicing pads with collection
systems (some are already complete and in use) so
that spent fluids may be hauled and treated, and
agreed to try alternative materials on the
runways, ramps, and taxiways as anti-skid
materials. Several exceptions are carved out of
the document for compliance with FAA
regulations for safety and emergencies. According
to the County and the carriers, this is the first
airport in the country to take such measures.
South Carolina
Laidlaw Environmental Services of South
Carolina: An Administrative Consent Order
was signed September 14, 1993, concerning
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Laidlaw Environmental Services alleged
failure to; properly handle, store, and dispose
of hazardous wastes; properly operate and
maintain a hazardous waste landfill; properly
operate an industrial waste landfill;
adequately control for fugitive particulate
matter emissions from the site; and fully
comply with previously issued orders. Laidlaw
was cited in violation of the State's Hazardous
Waste Management Regulations, the Industrial
Solid Waste Disposal Regulations, and the Air
Pollution Control Regulations. Laidlaw agreed
to the following: to institute procedures to ensure
compliance with all regulations; to submit a plan
for state approval to address management of
specific and unique wastes handled at the
facility; and to pay a penalty in the amount of
$1.825 million
Tennessee
Witherspoon Recycling Site, (Knoxville, Term):
On October 7, 1993, the Tennessee Department of
Environment & Conservation, Division of
Superfund filed a Chancery Order, requesting
injunctive relief, in,the 12th Judicial District of
Davidson County, Tennessee. Respondents named
in the order were David A. Witherspoon, Jr. and
Jane C. Witherspoon, both individuals, and
David Witherspoon, Inc. the corporate entity
under which the facility and operation existed,
the individual respondents having been owners
and operators of the facility since 1974.
The site is located within the Knoxville City
limits. Residential areas are located adjacent to
the site in all directions. There are six churches
and two schools within one mile of the site. Goose
Creek, which flows through and off the site
property, also flows through Mary Vestal Park, a
municipal community playground.
The facility and site, a salvage company in
operation since the 1940's, is contaminated by
radioactive jU-234, heavy metals (lead,
mercury), mixed wastes and organic compounds
such as polychlorinated biphenyls (PCB). During
the years of operation the facility was not
licensed or permitted to store, treat or dispose of
hazardous waste.
In 1966, the facility came under the State
permitting authority of the Division of
Radiological Health, Between 1966 and 1985,
numerous violations were cited leading to the
issuance of a Commissioner Order in 1985. In May
of 1990, following non-compliance, a Final Order
and an Assessment of Penalty was filed in
Chancery Court by the Division of Radiological
Health.
In March, 1991, the site was found to "pose or may
reasonably be anticipate to pose a danger to
public, safety, and environment" and was
promulgated to the List of Inactive Hazardous
Substance Sites of Tennessee, placing the site
under the authority of the Division of Superfund.
On April 4, 1991, the State issued an order
requiring the site be secured (fenced) and the
owners to submit and implement an investigation
plan and remedial action plan for the site. By
April, 1992, Witherspoon, Inc. declared that it
was unable to clean up the site. Since that time,
over one million dollars has been spent by the
State and the Department of Energy in an effort to
assess and remediate the environmental damage.
During the time this effort was underway, the
respondents allowed additional hazardous
wastes to be released in the environment. As
recently as August, 1993, the Witherspoon
respondents have been responsible for the
disposal of contaminated materials on site.
The results of the October 1993 injunctive action
was precedent setting in that this was the first
judicial action in which Tennessee has taken legal
possession of property. In the case of the
Witherspoon Site, this action was taken in order
to eliminate continuing disposal of contaminated
materials and to maintain control of the site
while efforts to investigate and remediate the
site are underway. The. resulting temporary
restraining order, prevents the Witherspoon
respondents from accessing the property.
Utah
State of Utah v. Geneva Steel Corporation: 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, Geneva Steel
Corporation paid over $750,000 in stipulated
penalties between December 1989, and September
1993. These stipulated penalties, for discharging
excessive ammonia concentrations, were included
in two settlement agreements, signed May 31,
1990, and December 11, 1991. By the end of FY
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1993, the facility had finally achieved
compliance with its permit limits.
Virginia
Stay Enterprises; Administrative Penalty
Settlement and Consent Special Order was issued
to Star Enterprises, et al, on April 30, 1993, in
response to an oil discharge from storage tanks at
the Fairfax Terminal. The Order includes an
administrative penalty of $2,750,000 and
requirements to provide pollution prevention
measures at the Fairfax Terminal site.
Approximately, 172,000 gallons of petroleum
product was discharged from the tank farm over a
period of years and resulted in an extensive oil
plume, which significantly impacted nearby
neighborhoods.
Commonwealth Laboratory! Commonwealth
Laboratory is a privately-owned laboratory
located in Richmond, VA that tests water, air,
and soil samples as required by the CWA, CAA,
RCRA, and SARA. Prior to a grand jury hearing
for 50 potential indictments for falsification, the
Corporation pled guilty as part of a plea bargain
agreement to a violation of the Virginia Consumer
Protection Act and paid $100,000 to the City of
Richmond. The Corporation was alleged to have
falsified data by altering test results, reporting
tests not performed, falsifying records for data
preservation, holding time, and equipment
calibration. Subsequently, in a civil action, the
Commonwealth Laboratory paid $50,000 to the
U.S. Government for allegedly false submittals.
Lawrence J. Levine; Lawrence J. Levine, who was
the former manager of Commonwealth
Laboratory located in Richmond, VA, pled guilty
to a Virginia Consumer Protection violation. Mr.
Levine was indicted on 48 counts of submitting
false statements to the Virginia Water Control
Board and the Virginia Department of Waste
Management and pled guilty to three
misdemeanors in a plea bargain. The defendant
was sentenced to three years in jail and fined
$7300; all but one day in jail was suspended with
five years' probation.
Washington
Washington Water Power Company. Spokane.
Washington, y Ecology. Pollution Control Hearing
Board (PCHB 93-36): In August 1992, Ecology was
called to investigate an oil sheen visible on the
Spokane River in the downtown Spokane,
Washington area. The investigation revealed
Washington Water Power Company as the source
of the oil. The oil sheen was caused when a
diesel hose broke during a fueling operation.
Subsequent investigation revealed that
Washington Water Power failed to report the
spill to authorities as required by state law. An
effort was made to contain and clean up the spill.
In settlement of the case, Washington Water
Power paid $2,000 to Ecology and agreed to spend
an additional $15,000 for innovative projects,
Klein Bicycle. Inc.. Chehalis, Washington^ v.
EfiOlfigy,, (PCHB No. 93-174): In August 1993,
Klein Bicycle, Inc., a bicycle manufacturer, was
penalized $242,000 under state dangerous waste
and water quality laws for illegally discharging
wastewater and hazardous waste to the ground.
The company was also cited for 15 hazardous
waste violations. The violations were observed
during two inspections conducted in April and
May 1992. The inspections revealed Klein had
failed to voluntarily comply with state
requirements despite technical assistance from
Ecology and repeated efforts by the agency to gain
compliance. The resulting penalty and order were
appealed but later settled. Included in the
settlement agreement is Klein's promise to pay
$50,000 toward programs or projects that benefit
water quality locally of statewide. A $50,000
credit for innovative actions is also allowed for
hazardous waste management improvements.
Klein agreed to pay Ecology $40,000. Ecology
suspended $50,000 of the original penalty
contingent upon Klein's compliance with state
hazardous waste and water quality laws during
the next three years.
Wyoming
State of Wyoming v. Holly Sugar Corp.
(Torrington, WY): Holly Sugar exceeded its
NPDES permit limitations for BOD and
temperature for a period of six months and
nineteen months respectively. As a result, the
Wyoming Department of Environmental Quality
filed action in court to seek civil penalties and
injunctive relief for these violations. On July 14,
1992, Holly Sugar Corp. paid $70,000 in civil
penalties and has agreed to an additional $50,000
in stipulated penalties should it have a
"significant violation" (40% over its permit
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limitation) between then and March 1, 1994. The
Company was able to comply with its permit
limits during the 1993 campaign. This action,
along with the Western Sugar case, is a major step
for Wyoming in aggressively addressing
noncompliance and seeking penalties for NPDES
permit violations.
State of Wyoming v. Western Sugar. (Lovell,
WY): Western Sugar exceeded the BOD
limitations established in its NPDES permit for
a period of six months. As a result, the Wyoming
Department of Environmental Quality (WYDEQ)
filed action in court to seek civil penalties and
injunctive relief for these violations. On June 29,
1992, Western Sugar paid $35,000 in civil
penalties and agreed to an additional $100,000 in
stipulated penalties should it have a "significant
violation" (40% over its permit limitation) before
March 1,1994.
In the Underground Injection Control program, on
August 18, 1993, the Wyoming Oil and Gas
Conservation Commission issued a final
administrative order reflecting an agreement
reached with DNR Oil and Gas, Inc. of Denver,
Colorado. The order required DNR to pay an
administrative penalty of $10,000 for numerous
violations including the unauthorized disposal
("injection") of produced water from DNR's oil
field operations into three Class II injection
wells. These wells are located in the Brush Creek
Field in Converse County, Wyoming.
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IV. Federal Facilities Enforcement and Federal Activities
Office of Federal Facilities Enforcement
EPA's Federal Facility Enforcement and Compliance Program, managed by the Office of
Federal Facilities Enforcement (OFFE), promotes protection of human health and the environment by
expeditiously cleaning up and ensuring compliance at federal hazardous and radioactive waste sites,
OFFE is establishing a framework that ensures the federal government is accountable to the public for
its environmental record. In recognition of the public's vital interests, OFFE will work to further
engage the public with the federal sector in the decision making process for management and cleanup
of environmental contamination at federal facilities,
In 1993, the Office of Federal Facilities Enforcement (OFFE) continued to ensure federal
government compliance with all environmental laws. 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 pollution in all media.
The federal government is investing significant resources in addressing environmental cleanup and
compliance issues at federal facilities,
Superfund Cleanup
At the start of EPA's federal facilities enforcement program, EPA directed its resources largely to
the completion of negotiations for CERCLA § 120 interagency agreements. These agreements made up
the cornerstone of the enforcement program addressing the 123 final and 20 proposed federal facilities
listed on the National Priorities List (NPL). Each agreement contained specific schedules for the study
and cleanup of hazardous substances at these facilities.
During FY 1993, six additional federal facility CERCLA interagency agreements (lAGs) were
executed. Of the federal facilities listed on the NPL at the end of FY 1993, 110 are now covered by
agreements. With the majority of these agreements completed, EPA now concentrates most of its efforts
on the their implementation. The number of accomplishments reported by the regions reflects that work
has proceeded into the implementation phase. For example, the Regions reported 50 RODs signed in FY
1993. In addition, they have reported 43 remedial design starts, 30 remedial design completions, 23
remedial action starts and 15 remedial action completions.
EPA anticipates that with more work moving through the study and cleanup phase, more issues
will arise leading to disputes between EPA and federal agencies. In FY 1993, two major disputes arose
under lAGs at George and Mather Air Force Bases that were decided by the Administrator, The
disputes presented difficult issues regarding cleanup standards based on California's non-degradation
policy. The Administrator's decision resolving these disputes stressed that EPA and the Air Force were
to apply the state's policy, and the interpretation of the policy.
Three cases were settled in FY 1993 involving violations of the terms of lAGs at Loring Air Force
Base in Maine, Fernald in Ohio, and the West Virginia Ordnance Works Site. The settlement of these
cases included over $500,000 in penalties and, in one case, as supplemental environmental project worth
$2 million.
In February, OFFE issued an interim report by the Federal Facilities Environmental Restoration
Dialogue Committee. The committee is a chartered federal advisory committee and includes forty
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representatives of federal agencies, tribal and state governments and associations, and local and
national environmental, community, and labor organizations. EPA established the committee in 1992 to
develop consensus policy recommendations aimed at improving the federal facilities environmental
restoration decision process to ensure that clean-up decisions reflect the priorities and concerns of all
stakeholders. The interim report contained committee recommendations concerning: improving the
dissemination of federal facility restoration information; improving stakeholder involvement in key
restoration decisions with special emphasis on the use of site-specific advisory boards; and improving
consultation on federal facility restoration funding decisions and setting priorities in the event of
funding shortfalls.
Federal Facility Compliance Act
The Federal Facility Compliance Act (FFCA), amending RCRA, became effective in FY 1993. The
law greatly enhances state and EPA enforcement authorities against federal facilities. For example,
states and EPA can now assess and collect penalties for violations of RCRA requirements. In addition,
EPA now has authority to issue administrative orders against federal facilities for enforcement of
RCRA.
During FY 1993, EPA took several significant steps in implementing the FFCA and exercising its
new grants of authority. For example, EPA issued hearing procedures for adjudication and appeals to
the Administrator for EPA-issued orders against federal agencies. In May, Region IX issued the first
RCRA § 3008 complaint and compliance order with penalties to a federal facility following passage of
the FFCA. The complaint sought $257,580 in penalties for 27 violations at the U.S. Navy's El Centre,
California Naval Air Facility. In June, Region VI negotiated and issued the first RCRA § 7003 order for
cleanup response ever issued against a federal agency. The order, involving Reese Air Force Base, near
Lubbock, Texas, also included the first RCRA settlement with stipulated penalties since passage of the
FFCA.
In FY 1993, EPA took 12 RCRA §3008(a) enforcement actions using the new authority granted by
the FFCA. Two cases have been resolved, and the remainder are either being negotiated or invoking
the hearing process.
Under the RCRA illegal operator enforcement initiative, EPA charged several federal facilities
with a combined total penalty of over $2 million for RCRA violations. Two Department of Defense
bases located near San Antonio, Texas, were charged with posing a threat to the city's only source of
drinking water. The initiative was an effort to stop operation of hazardous waste activities without
required RCRA permits.
Base Closure and Reuse
Pursuant to Congressional mandate, numerous military bases are undergoing realignment or complete
closure with the potential for severe economic impacts on the affected local communities. The timely
reutilization of these installations is essential if the economic consequences to the community of losing
military and civilian jobs is to be minimized. EPA is currently involved at over seventy of these
installations.
A plan to mitigate economic dislocation and speed the economic recovery of communities near
military bases scheduled for realignment or closure was announced by the Clinton Administration on
July 2, 1993. Rapid redevelopment and job creation are top goals of the new initiative. A primary
element of the President's plan is a Fast Track Cleanup Program at bases with a high probability of
early reuse by the host communities. EPA, DOD, and the states are charged with creating a working
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partnership to implement the Fast Track Cleanup Program with the objectives of "quickly identifying
clean parcels for early reuse, selecting appropriate leasing parcels where cleanup is underway, and
hastening cleanup."
In order for EPA to implement the President's Fast Track Cleanup Program, OFFE developed the
Model Accelerated Cleanup Program (MAC) and guidance to execute the MAC. The MAC establishes
environmental teams to provide EPA's technical expertise to streamline and accelerate the cleanup of
closing and realigning bases. The MAC will be led by a senior project manager who will be empowered
to make decisions locally and will rely on EPA expertise, breaking from traditional reliance on
contractors for technical assistance. Although the MAC process will result in a more efficient process,
EPA's work will be more intense. This intensity, however, will be offset in time savings and ultimately
more efficient use of EPA and DOD resources.
Under a very tight time frame, OFFE worked with DOD to develop a BRAC Cleanup Plan
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Multimedia Initiative
Federal facilities are a highly visible sector of the regulated community. Their compliance rates
in all media have traditionally been lower than those of the private sector. Based on the need to
address the environmental problems in the federal sector, EPA endorsed the Federal Facilities Multi-
Media Enforcement Initiative for FY 1993/1994.
The goal of the initiative is to improve federal agency compliance and reduce environmental
risks from federal facilities through increased use of multi-media inspections; efficient utilization of
all available enforcement authorities; and enhanced use of innovative pollution prevention (P2)
approaches to solving compliance problems.
Many federal agencies currently use a multi-media approach in their internal auditing and
compliance evaluations. Multi-media enforcement provides an opportunity for a comprehensive
evaluation of a facility by identifying threats to the environment where pollutants cross through
various media. Also, multi-media activities provide for an in-depth opportunity for identifying
pollution prevention projects that can be implemented as supplemental or beneficial environmental
projects at the facility or throughout similar government branches, agencies, departments, and even the
private sector. The emphasis is on projects which take pollution prevention approaches to resolving
identified violations.
Federal agencies will benefit from this initiative by clearly defining their environmental
compliance status and the risks the facility poses to human health and the environment. It will
provide greater efficiencies for installations by eliminating the resource burden of numerous single-
media inspections and will serve as an excellent training ground through enhanced EPA technical
assistance to federal agency environmental staffs. It will increase the level of environmental
awareness of installation employees at all levels, and will help improve federal facilities compliance
by providing a comprehensive view of compliance problems and creative opportunities to protect human
health and the environment.
In FY 1993, EPA and the states conducted 34 multi-media inspections of federal facilities,
exceeding by 33% the minimum number of required inspections under the initiative. EPA and the states
project a similar level of effort of multi-media investigations at federal facilities in FY 1994.
Education and Outreach
EPA continued to host the 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.
In January 1993, to address the specific environmental compliance needs and concerns of civilian
federal agencies, which have smaller and .generally more nascent environmental programs than the
Departments of Energy and Defense, EPA organized the Civilian Federal Agency Task Force. The task
force is addressing problems consistently cited by these civilian agencies, including; inadequate training
programs; deficient information resources; outdated compliance tracking and recordkeeping system;
shortage of trained professionals with sufficient knowledge and expertise in environmental
management and compliance; insufficient assistance from EPA on specific agency issues having a
national impact; and inadequate communication and coordination and communication among EPA
headquarters, EPA regions and other federal agencies. The task force has made recommendations to
address these problem areas and will work, during FY 1994, to implement these recommendations.
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Office of Federal Activities
The Office of Federal Activities (OFA) is responsible for ensuring federal compliance with the
National Environmental Policy Act (NEPA), ensuring that federal agencies conduct their activities
in an environmentally sound manner by reviewing environmental impact statements (EISs) under the
Environmental Review Program (ERP), and, in regard to Indian lands, developing environmental
control capacity through implementation of the Indian multi-media grants program.
The following summarizes key accomplishments by EPA's Office of Federal Activities (OFA)
during FY 1993. It is organized according to five major activities for which OFA is the National
Program Manager, These include;
Environmental Review Program. OFA reviews environmental impacts of proposed major federal
actions as required by the National Environmental Policy Act (NEPA) and §309 of the Clean Air Act,
OFA aids in pollution prevention by anticipating environmental problems with federal agency
programs.
EPA Compliance with Cross-Cutting^Staiutes. OFA ensures that EPA's actions comply with the
intent of NEPA and other non-EPA administered environmental laws such as the Endangered Species
Act and the National Historic Preservation Act.
National Filing ..System. OFA is the designated agent for the Environmental Impact Statement
(EIS) filing requirements of NEPA. OFA ensures proper documentation and public review. Additionally,
OFA is the manager for EPA Memoranda of Understanding (MOU), serving as reviewer and recorder on
77 active MOUs.
International Program Activities. OFA provides technical assistance for the Agency's
international activities. Assistance includes Environmental Impact Assessment (EIA) expertise;
environmental infrastructure development for developing countries; and coordination with the
Department of State, Agency for International Development, and relevant agencies.
Indian Program. OFA acts as the national program manager for the Multi-Media/Grants
Assistance Program for Tribes (P.L. 102-497); and for providing oversight and guidance of EPA's efforts to
extend the national system of environmental protection to Indian lands.
Environmental Review Program
Over the past year OFA has experienced significant progress and precedent setting actions. A
partial listing includes:
Report on NEPA at EPA. OFA chaired a workgroup which examined EPA programs and the
National Environmental Policy Act. For the first time in more than two decades, a comprehensive
study was made of EPA activities in respect to the key criteria of NEPA — environmental analysis,
consideration of alternatives, and public participation. OFA also considered how the program offices
comply with other environmental requirements, such as the Endangered Species Act. The
Administrator committed the Agency to this review following Senate hearings on the EPA cabinet bill.
Mid-West Floods. OFA assumed a leadership role in Midwest flood recovery. Serving as EPA's
representative to the White House Task Force on levee repair and long-term recovery, OFA promoted a
comprehensive approach to floodplain management practices in the region. The principle established
by OFA was to learn from past practices to prevent future disasters through long-term floodplain
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management. Because of OFA's efforts, the White House is pursuing a strategic assessment of federal
activities in floodplains.
Everglades. OFA represented EPA at the final negotiations and signing of the multi-agency
agreement on restoration of the Everglades. OFA continue to coordinate with Region IV, the Office of
Wetlands, Oceans and Watersheds, and other EPA offices to secure a team of experts to participate in
the technical and scientific studies of this complex ecosystem necessary to arrive at a solution for
environmentally sustainable development in the region.
USQS - BuRec Coordination. As part of its interagency coordination and issue resolution function,
OFA continued as Co- Chairs of the US Geological Survey (USGS) and the Bureau of Reclamation
Committees to exchange information on key issues of joint interest. The meetings of the EPA/USGS
Coordinating Committee held this year were successful in coordinating many programs and research
efforts. The Bureau of Reclarnation/IPA Interagency Coordinating Committee focused on the new
directions of the Bureau's water resource management programs with particular emphasis on the
Central California project. The Animus LaPlata project in S. W. Colorado, and the San Francisco Bay
Delta Water project.
Forest Conference. In April 1993, President Clinton convened the Forest Conference which was
designed to break the impasse that had developed over use and protection of the Northwest forest
resources. From the beginning, OFA has been an active member of the President's Forest Team with
particular input in ecosystem protection and watershed management. OFA staff have been involved in
both the review and preparation of the Draft Forest Conference Supplemental EIS.
Environmental Tustice. OFA provided its expertise on the National Environmental Policy Act
(NEPA) and its potential to further environmental justice awareness by assisting with the development
of an Executive Order on Environmental Justice. Independent of that effort, OFA pursued with the
Council on Environmental Quality, a pilot study evaluating the thoroughness of analysis of
environmental justice issues and socioeconomic impacts under NEPA.
Pollution Prevention. OFA developed and issued final guidance to EPA, which was coordinated
with all federal agencies, on how pollution prevention can be incorporated into the National
Environmental Policy. Act (NEPA) and the Clean Air Act § 309 environmental review processes. The
guidance provides specific examples of pollution prevention and mitigation measures that distinguish
between source reduction and treatment technologies.
Noise Issues. This year began with the completion of an aircraft noise study by the Federal
Interagency Committee on Noise. The Report by the committee (OFA was the EPA representative) was
part of the resolution of an Federal Aviation Administration project at the Toledo Express Airport One
of the recommendations of this report was to establish a standing Federal interagency committee to
coordinate aircraft noise issues. The Federal Interagency Committee on Aircraft Noise has been
established and OFA will represent EPA on this committee. OFA's review of DOD and FAA airport
EISs is the driving point for their involvement in this issue.
Clean Air Act Conformity Rulemakings. Under the amended Clean Air Act (CAA) EPA was
instructed to develop rules for the conformance for federal actions to the CAA. The rules were divided
into transportation-related rules and general conformity rules for federal actions which were not
FHWA or FTA related. OFA played two critical roles; The first was to craft rales which were not
dependent upon NEPA but were complementary to NEPA. The second was to provide continuous
feedback on how the rules, throughout their many iterations, might affect the other agencies.
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Federal Highways Administration Issues. In the past year, OFA has continued to work with the
DOT designated EPA liaison, to resolve several controversial highway projects. The Appalachian
Corridor H project, a proposed 120 mile highway through West Virginia, which would foster economic
development for the state was a case in-point. The tiered corridor level approach used by FHWA
required an EPA stance to select the environmentally preferable alternative and encourage FHWA to
utilize the tiered corridor approach in future projects. The Route 86 project in Riverside County,
California required considerable Headquarters attention in order to bridge the pressure to build a 20
year old project with the need for current environmental analysis.
Federal Energy Regulatory Commission. In an effort to help the Federal Regulatory Commission
(FERC) improve the environmental soundness of hydropower licensing and relicensing decisions, OFA
coordinated with federal resource agencies to formulate a unified series of recommendations geared to
process improvement. Once a consistent view was expressed by federal agencies with an interest in
hydropower, FERC became convinced of the need for change. OFA continues to provide advice and
assistance in the course of FERC's current relicensing improvement efforts.
Outer Continental gfoelf Ajftiyjjjes. OFA has provided for coordination between EPA's Regions
IV and VI and the regional and headquarters components of the Minerals Management Service (MMS)
in the preparation of two Supplemental Environmental Impact Statements (SEIS) to address new source
general permit issuance for Outer Continental Shelf oil and gas activities. OFA helped the regions and
MMS to overcome jurisdictional and technical disputes to ensure the timely issuance of the documents.
EPA could not issue general National Pollutant Discharge Elimination System (NPDES) permits for
effluent discharges from oil and gas operations in the western, central and eastern Gulf of Mexico until
the required NEPA reviews were completed.
NEPA Compliance
Endangered Species Activities. As a part of their role to ensure compliance with cross-cutting
environmental laws, OFA has been coordinating endangered species issues within the Agency. At the
heart of their activities, OFA has been a lead for the Endangered Species Coordinating Committee
that was established to describe current activities and obligations, set priorities, establish
appropriate training, support and liaison functions with the Fish and Wildlife Service and National
Marine Fisheries Service. '
Environmental Assessment Guidance & Training. OFA developed guidance materials on
environmental assessment to assist both preparers and reviewers of environmental impact assessments.
This included a "Sourcebook" on the EA process and a related computer program developed by EPA
Region V that was designed for self instruction. OFA also began revision of technical guidelines for
environmental assessment on proposed fossil fueled steam electric generating stations and coal
gasification/petroleum refineries. Work was carried out on EISs for industrial facilities in Texas and
Louisiana, power plants in Maine and Florida, off-shore oil and gas NPDES permitting in Regions IV
and VI.
Historic Preservation. OFA, with the lead on ensuring compliance with the National Historic
Preservation Act, has been consulting with the Advisory Council on Historic Preservation in
implementing the 1992 Amendments affecting Agency programs delegated to states. Heretofore, these
programs were not subject to the Act's provisions. OFA has established an agency-wide workgroup to
evaluate the implications for these requirements on states. OFA has also developed training for
headquarters and regional staff in the requirements of the law with the cooperation of the Council.
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National Filing Systems
Environmental Review: - In FY 1993, 469 environmental impact statements {EISs) were filed with
OFA under OFA's delegation from CEQ (286 draft and 183 final). During FY 1993, EPA commented on 259
draft EISs and 171 final EISs. Of these, 44 draft EISs were rated EO (environmental objections) with
the remaining either EC (environmental concerns) or LO (lack of objections).
International Program Activities
NAFTA Report. OFA was actively involved in support to the Administrator and the U.S. Trade
Representative (USTR) on environmental issues concerning NAFTA. OFA took the EPA lead in
preparation of an environmental report which Ambassador Kantor committed to prepare for the
November 1 submittal of NAFTA to Congress. •
Environmental Assessment Training. OFA has responded to requests to brief a number of foreign
visitors on the environmental assessment process. 'Formal training on the environmental assessment
process was provided to Mexico, Turkey, Bulgaria, and World Bank and U;S. Exim Bank staff. Other EA
technical assistance included participation on a technical taskforce to Russia.
Indian Program
Development of Tribal General Assistance Grant Regulation. The Indian Environmental General
Assistance Program Act of 1992, enacted October 24,1992, directed EPA to "establish an Indian General
Assistance Program that provides grants to eligible Indian tribal governments or intertribal consortia to
cover the costs of planning, developing and establishing environmental protection programs on Indian
lands" within one year of enactment.
As part of the regulation development process, public information meetings were conducted to
solicit informal comment from tribes and other interested parties. With this tribal input further policy
and implementation issues were resolved. OMB concurred .in the rule and it was published in the
Federal Register on December 2, 1993. The General Assistance Program replaces the Multi-Media
Assistance Program (summarized below).
Treatment as a State Regulations. OFA was requested to lead the effort to revise the Agency's
"treatment as state" (TAS) procedures by which Indian tribes become eligible for grants and program
authorization. An interagency workgroup chaired by OFA has written regulations which simplify the
procedure and make it less burdensome and offensive to tribes.
Indian Program Administration. OFA began the Multi-Media Assistance Program in FY 1990
with $151,000 for two pilot projects. During FY 1991, $1.7M of Agency funds were provided to 29 grants
to 47 tribes. In FY 1992, 60 new and continuation grants were funded from $5.2M appropriated by
Congress including Congressional add-ons for two projects: $1.5m to the 26 Washington tribes for the
Washington State Tribal Initiative, and $500K to the Inter-Tribal Council of Arizona (ITCA). During
FY 1993,100 new and continuation grants were funded from $7.5M appropriated including $3SM to the
two Congressionally-mandated projects ($2.5M for the Washington tribes; $1.0M for the ITCA). For FY
1994, $8.5 million is available for award to tribal governments and inter-tribal governments and
consortia. To date, nearly half the tribes and a quarter of the Alaska Native Villages are receiving
capacity building activities. Additionally, OFA held interagency Indian workgroup meetings between
EPA and nine Federal agencies. OFA has actively assisted most of the 500+ tribes and Alaskan Native
villages who are preparing to bring environmental management to their lands.
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V Building and Maintaining a Strong National Enforcement Program
Program Development
National Enforcement Training Institute (NETI)
During FY 1993 NETI made major strides in its continuing effort to develop and offer a
comprehensive, integrated approach to enforcement training for federal, state and local environmental
enforcement personnel, as mandated by the Pollution Prosecution Act of 1990 (Public Law 101-592).
NETTs success for the year is reflected in the impressive training statistics; course offerings increased
fourfold over the previous year as NETI offered 200 course sessions, and attendance at NETI-sponsored
courses increased by over 120 percent, with 8375 professionals being trained in FY 1993. Of this number,
4,509 (54%) were state and local employees, and 3866 (46%) were federal employees.
NETI provided training in all ten EPA Regional Offices and Headquarters during the year. NETI
courses were also taught in 20 States: Arizona, California, Florida {3 courses), Georgia, Indiana (2
courses), Kentucky, Louisiana, Michigan, Mississippi, Nevada, New Jersey, New Mexico, North
Carolina, Rhode Island, South Carolina, Tennessee (2 courses), Texas, Vermont (2 courses), Virginia, and
Wisconsin,
During FY 1993, NETI significantly expanded its training opportunities that were made
available to the international environmental community. NETI offered courses in Malaysia, Mexico,
Thailand, Turkey, and Ukraine.
These significant increases were made possible by the cooperative partnerships and alliances
that NETI has established and fostered within the environmental enforcement community. Training
presented under the auspices of NETI in FY 1993 was carried out by the EPA Headquarters and regions,
the National Enforcement Investigations Center (NE1C), the criminal program at the Federal Law
Enforcement Training Center (FLETC), the EPA program offices, the Northeast Environmental
Enforcement Project (NEEP), the Midwest Environmental Enforcement Association (MEEA), the
Southern Environmental Enforcement Network (SEEN) and the Western States Project (WSP).
In FY 1993 NETI firmly established its organizational structure and network. This network
includes the NETI Council—a body of 39 high level representatives from within EPA, the U.S.
Department of Justice (DOJ), state and local governments and academia. It also encompasses seven
subcommittees of the Council and six independent, standing committees on curriculum development.
During the year, NETI launched an extensive effort to revise its prototype two-week Basic
Environmental Enforcement Course and produce an operational version. The second session of the
prototype was presented in FY 1993 in Washington, D.C., where the focus was upon Region IV. Half of
the 36 trainees were from Region IV, EPA Headquarters and DOJ, with the remaining half being from
the State and local environmental enforcement agencies in the Region IV area.
Following that second presentation, NETI began an effort to condense the Basic Environmental
Enforcement Course into a one-week time frame featuring both classroom instruction and clinical
exercise, which would be suitable for delivery by NETI training providers. This effort began in June
1993 with a meeting of a subcommittee of the NETI Curriculum Committee. This subcommittee is
composed of State and Federal expert training professionals, who will be involved throughout the
development of the Course. It is anticipated that this Course, which will be offered beginning in June
1994, will become the "basic training" for all new environmental enforcement professionals in the
United States.
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NETI also revised its BEN and ABEL training in FY 1993 to reflect the changes made within the
BEN model's discount rate assumptions, as well as to incorporate a series of improvements to make the
training more effective. NETI delivered 14 sessions of the BEN and ABEL Course, training a total of 331
enforcement personnel in EPA Headquarters, 9 Regional Offices, the States of Indiana and Florida, and
the Northeast Environmental Enforcement Project. In addition, NETI delivered the Cashout and
Superfund ABEL Course, which is essentially the Superfund version of the BEN and ABEL Course, to
120 enforcement personnel at four locations.
The Integrated Data for Enforcement Analysis (IDEA) is a showcase tool in the arsenal of
environmental enforcers. IDEA is an interactive, high-speed data retrieval and integration capability
to retrieve data for performing multi-media analyses of regulated facilities for inspection targeting,
case screening, case development, litigation support, and settlement negotiations. Fourteen sessions of
the IDEA Training Course were offered nationally in FY 1993 to an audience of 235 environmental
professionals.
As a follow-on to NETI's international training provided to Mexican environmental inspectors
last year, in FY 1993 NETI trained an additional 180 Mexican inspectors in Mexico City and
Guadalajara. The five-day Training Course for Mexican Inspectors was especially designed to meet the
needs of the Mexican audience at each specific location. The inspectors benefited from site visits to
manufacturing facilities within Mexico. Classroom instruction included in-depth presentations on
Mexico's environmental laws and regulations, health and safety techniques for field activities, and the
fundamentals of compliance inspections. In addition, detailed reviews of selected industrial processes
(e.g., electroplating, printed circuit board manufacturing, furniture finishing, and injection molding)
were included in the classroom discussion, which served to reinforce the information that the trainees
gleaned from the site visits.
The Principles of Environmental Enforcement Course was presented to a total audience of 107
environmental officials in Kuala Lumpur, Malaysia; Laem Chabang, Thailand; Ankara, Turkey; and
Kiev, Ukraine. This intensive, three-day training presented fundamental principles for designing and
implementing environmental enforcement programs. Developed in 1991 by EPA, with participation
from the Netherlands, Poland, and other countries, this Course is designed for delivery in a wide
variety of cultural settings.
NETI made significant progress in reaching out to its domestic and international audiences during
FY 1993, as well as in making meaningful progress to refine the Institute's internal planning and
management functions. Among other things, the Institute developed a vision for NETI's long-term goals
by producing the NETI Strategic Plan. NETI also made important strides in becoming a nationally
recognized leader in the use of emerging, innovative technologies as vehicles for reaching larger
audiences.
The NETI Strategic Plan constitutes a comprehensive, detailed blueprint or design that will
guide NETI's planning functions in the forthcoming three fiscal years. The Strategic Plan will serve as
the basis for the development of yearly Operating Plans that will translate the Strategic Plan's
imperatives into attainable actions for each applicable year.
NETI aggressively moved forward in FY 1993 into the electronic age of distance education.
Distance education utilizes emerging technologies for reaching larger, more widely dispersed audiences.
Interactive videos, CD-ROM, and closed-circuit, satellite television transmission are examples of these
emerging technologies. During FY 1993, NETI was able to reach simultaneously an audience of 1,000
trainees in 50 States with the Administrative Hearings and Trials Course, by using closed-circuit,
satellite transmission with only one instructor for a single day. Also offered via satellite transmission,
the Environmental Law for Local Law Enforcement Officers Course reached an audience of 2,000.
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NETI developed and implemented a Clearinghouse in FY 1993 for keeping constituent groups
informed about NETI-sponsored training. The user-friendly NETI Clearinghouse is accessible
nationally through a non-toll telephone number: 1-800 EPA-NETI. It is a major means for disseminating
information about the availability of environmental enforcement training. In particular, State, local,
and tribal environmental enforcers, who may not have ready access to computer networks, are only a
telephone call away from up-to-the-minute information about NETI.
Finally, NETI took major steps during the year to design and complete the new NETI
Headquarters Training Center, which is scheduled for its official opening during the summer of 1994.
The Center will be a model state-of-the-art training facility located in midtown Washington, D.C. (For
further information contact NETI)
Intergovernmental/International Enforcement Activities
Environmental Side Agreement to the North American Free Trade
Agreement (NAFTA)
OE helped develop the North American Agreement on Environmental Cooperation (also known as
the NAFTA environmental side agreement), which was signed by President Clinton and the heads of
state of Mexico and Canada on September 14, 1993. The final language contains several strong
enforcement provisions, including a mandatory annual report of enforcement activity by each country, a
duty to effectively enforce domestic environmental laws, and a system for resolving allegations of lax
enforcement by any of the three countries. (For further information contact the OE-International
Enforcement Program)
North American Free Trade Agreement Legislative Support
OE contributed substantially to the Administrator's efforts to respond to Congressional concerns
about environmental impacts of the North American Free Trade Agreement. OE activities included
commenting on testimony for several Congressional hearings, responding to Congressional inquiries, and
participating in EPA's review of the NAFTA legislation and accompanying legislative materials. OE
also participated in a review of Mexico's environmental laws, and drafted the portion of the resulting
report pertaining to Mexico's environmental inspection and enforcement program. (For further
information contact the OE-International Enforcement Program)
Antarctica Legislation
OE worked to promote enforcement provisions in the Administration bill to implement the
environmental protocol to the Antarctic Treaty. This effort involved drafting of legislative language,
review of Congressional testimony and numerous meetings of the interagency group writing the bill.
Issues addressed included judicial review of permits, standing, waiver of sovereign immunity, and
citizen enforcement suits, including scope of the violations covered. The bill was completed on
November 15,1993. (For further information contact the OE-International Enforcement Program)
U.S./Mexko Cooperative Enforcement Strategy Work Group
EPA's Deputy Assistant Administrator for Enforcement served as U.S. co-chairperson of the
U.S./Mexico Cooperative Enforcement Strategy Work Group. OE worked to develop cooperative
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enforcement activities with Mexico's environmental agency, SEDESOL, while SEDESOL put into place
a new enforcement program which resulted in more than 16,000 inspections nationwide^ OE's National
Enforcement Training Institute provided training in Multimedia Inspection techniques to 380 SEDESOL
inspectors. EPA and SEDESOL increased cooperation in the investigation of specific cases, particularly
involving illegal hazardous waste movements, OE supported efforts to expand cooperation with
Customs and State environmental agencies to detect illegal hazardous waste shipments, and developed
a bilingual video to train U,S. and Mexican Customs officials in detecting and responding to illegal
waste shipments. OE assisted efforts to develop a binational database to track transboundary
hazardous waste shipments, and the filing of the first four administrative enforcement cases in June,
1993 which were developed using the database. OE worked with Regional and Mexican counterparts to
prepare a Progress Report on Work Group activities, and to develop a list of Work Group priorities for
the coming year. (For further information contact the OE-International Enforcement Program)
Enhancing Cooperative Enforcement Activity with Canada
OE met with officials of Environment Canada and the Ontario Ministry of the Environment and
Energy to discuss ways to augment cooperative enforcement activity between the two countries. The
participants exchanged information on enforcement statistics and methods of setting priorities. Future
activity is likely to be bilateral, especially for case-specific matters, and also trilateral, with Mexico,
under the auspices of the new North American Commission on Environmental Cooperation. (For further
information contact the OE-International Enforcement Program)
Technical Assistance to Russia, Eastern Europe, and Indonesia
OE participated in missions to Poland and Russia, and assisted in a Polish mission to the United
States, which included components related to improving enforcement of environmental laws. These
missions are multi-year efforts. Similar projects are likely in other emerging democracies in the region,
especially Slovakia. OE also met with visiting officials from Indonesia to provide technical
assistance on environmental enforcement issues. (For further information contact the OE-International
Enforcement Program)
Customs Cooperation
OE led efforts to increase cooperation between EPA and the U.S. Customs Service in monitoring
compliance and enforcing environmental laws pertaining to import and export. OE's work stimulated
dialogue on possible development of computer interfaces with Customs to improve the efficiency of
interagency cooperation in compliance monitoring and enforcement. (For further information contact the
OE-International Enforcement Program)
Transboundary Movement of Hazardous Waste
OE participated in a number of EPA initiatives regarding the transboundary movement of waste,
including drafting of a regulation to implement the OECD Decision on Transboundary Movement of
Wastes Destined for Recovery, and efforts to support Congressional consideration of legislation to
implement the Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal.
(For further information contact the OE-International Enforcement Program)
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National Reports on FY 1992 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 current year performance with historical trends. (For further information contact OCAPO)
Summary of State-by-State Enforcement Activity for EPA and the States
Each year, EPA assembles an end-of-year report which summarizes quantitative indicators of
EPA and State enforcement activities on a state-by-state basis. The FY 1993 report is scheduled for
publication in May 1994. (For further information 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 1990'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.
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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General Enforcement Policy Compendium
An essential tool in multi-media enforcement, the General Enforcement Policy Compendium,
which contains 90 documents issued throughout EPA's history, was the subject of a comprehensive
review to determine whether specific policies require updating and revision. The review was conducted
by a Workgroup comprised of representatives from all offices of the Office of Enforcement and several
Regional Counsel offices. The workgroup has prepared a new master index for the Compendium which
groups policies by subject matter area and provides a summary of each policy, and has developed
recommendations for the performance of editorial work which will ensure that the Compendium is up-
to-date and is more useful as a reference, and for improvements in distribution, electronic access and
training which will promote its availability and use. (For further information contact OCAPO)
Clean Air Act
Clean Air Act - Stationary Source Compliance Division
Administrative Penalty Program
The administrative penalty order (APO) authority for the air program was established in the
1990 CAAA. In FY 1993, the second year of APO authority implementation, regional enforcement staff
continued to aggressively use the administrative penalty authority to bring enforcement actions for
violations of State Implementation Plans (SIP's), New Source Performance Standards (NSPS), and
National Emission Standards for Hazardous Air Pollutants (NESHAP), as well as for violations of the
Stratospheric Ozone Protection requirements of the CAA, Settlement of these cases during FY 1993
yielded almost two million dollars in penalties. Additionally, Supplemental Enforcement Projects
(SEFs) are a part of eight settlements which require the respondents to spend over one million dollars
on pollution reduction projects. (For further information contact SSCD)
Stratospheric Ozone Protection Compliance Program
Three new CFC regulations became effective in FY 1993 that implemented §§ 608, 610, and 611 of
the 1990 CAAA. These regulations will enhance the enforcement of the stratospheric ozone provisions
of the Act.
The § 608 regulations, effective in June of 1993, prohibit the release of ozone depleting
refrigerants when servicing air conditioning and refrigeration equipment. The Stationary Source
Compliance Division (SSCD) prepared training manuals to train Regional inspectors. The § 610
regulations, effective in February of 1993, prohibit the sale of certain nonessential products that contain
or are manufactured with ozone depleting substances. SSCD prepared a compliance guidance for these
regulations and one case has been filed against a violator. The % 611 regulations, effective in May of
1993, require warning labels on products containing ozone depleting substances. (For further information
contact SSCD)
Wood Heater Program
The wood heater program requires certification of wood heaters manufactured and sold in the
US. in order to reduce the emissions of particulate matter. In Fiscal Year 1993, SSCD granted 49 wood
heater certifications and 20 recertifications. Recertifications are required every five years. Other
enforcement activities included 75 inspections of wood heater retailers and manufacturing facilities
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(using five senior environmental employees) and granting 75 design change requests, (For further
information contact SSCD)
Missouri Voluntary Compliance Pilot Program
The Stationary Source Compliance Division and Air Enforcement Division (AED) assisted Region
VII develop the Missouri Voluntary Compliance Pilot Program (MVCPP) for the New Source
Performance Standards (NSPS) subpart COO, nonmetallic mineral processing plants. The MVCPP was
established to handle a large number of sources in Missouri that were discovered to be in probable
violation of the subpart OOO requirements for notification and testing. Under the MVCPP, for a
limited period of time, EPA Region VII provided a window of opportunity for the Missouri nonmetallic
mineral processing industry to disclose information on present and past compliance and noncompliance.
In return, for voluntarily providing information, sources will receive reduced penalties. Due to the
large number of potential violators, and the nature of the violations, the program will address the
majority of cases through the administrative process, rather than through judicial actions. The vast
majority of the violations addressed by the MVCPP were more than 12 months old and EPA obtained
the concurrence of the Attorney General to waive the time limit on the administrative penalty
authority. (For further information contact SSCD)
Technical Agenda
In FY 1993, SSCD conducted a series of studies and projects under its Technical Agenda. These
projects were designed to provide technical assistance to EPA personnel throughout the agency. In FY
1993, projects were conducted to assist in the control of Volatile Organic Compounds (VOC) emissions,
air toxics emissions, and pollution prevention.
VQC Projects - Three VOC projects were released. They are: 1. "Summary Matrix of Air
Regulations From Other Pollution Media;" 2. "Development of Engineering and Cost Information and
Data Pertaining to the Use of Permanent Total Enclosure;" and 3. "Inspection Manual for Enforcement of
Proposed NESHAP for SOCMI." One additional study, "Correlation of Reference Method 24 Test
Results and Manufacturers Formulation Data," was initiated and will be continued as a cooperative
project among SSCD, regional, state, and industrial partners.
Air Toxics Projects — The three air toxics projects completed are: 1. "Revisions to Inspection
Manual for Benzene NESHAP for Coke By-Product Recovery Plants, Subpart L;" 2. "Inspection Manual
for Benzene NESHAP for Waste Operations, Subpart FF;" and 3. "Development of Dry Cleaning Data
Base."
Pollution Prevention Projects -- The five pollution prevention projects completed are:
1."Agricultural-Based Ink Usage;" 2. "Basic Pollution Prevention for Engineers and Scientists;" 3.
"Organic Chemical P2 Opportunities;" 4. "Pollution Prevention Case Study Data Base;" and 5.
"Satellite-Based Pollution Prevention training for Air Regulatory Programs." (For further information
contact SSCD)
Acid Rain Program
Unlike other traditional enforcement programs, the Acid Rain Program is designed as a market
driven program that creates economic incentives for its participants to comply. Initially, utilities
receive emissions allowances from EPA that represent their allowable levels of sulfur dioxide
emissions. These allowances can be bought and sold among the utilities. The SSCD in cooperation with
the Acid Rain Division, Air Enforcement Division, and the Regions, developed a draft enforcement
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guidance document for the acid rainexcess emissions, CEMS, and permit rules. This guidance document
will be used by EPA and the States to address violations and bring violators into compliance. (For
further information contact SSCD)
NSPS Subpart J - Oil Refinery Industry - Initiative
SSCD coordinated a two year national initiative to implement the NSPS Subpart J (oil refinery
industry) requirements to install, certify, and operate continuous emission monitoring systems (CEMS).
The initiative offered a unique opportunity to emphasize and implement the CEMS program and
document the program's benefits in reducing emissions produced from the oil refinery industry.
The Subpart J initiative consisted of two phases and ended in FY 1993. The initiative resulted in
an 80 percent compliance rate, 48 enforcement actions (including 37 APOs) with over three million
dollars in penalties pled, a number of civil judicial cases (some still under preparation) with multi-
million dollar penalties, and numerous State enforcement actions with penalties of over $310,000. This
initiative has led to the identification of additional violations in other air programs and other media,
as well as to multi-media enforcement actions. (For further information contact SSCD)
Rule Effectiveness
Rule effectiveness is a method for determining how effective an environmental regulation is in
reducing source pollution. Rule effectiveness studies are intended to identify and quantify
implementation problems which effect attainment of the National Ambient Air Quality Standards.
The SSCD believes that these studies can greatly assist the states to achieve the 15 percent reasonable
further progress (RFP) requirements.
In FY 1993, SSCD issued the revised Rule Effectiveness Protocol Guidance and completed the Rule
Effectiveness Study Index. At the regional and state level, 12 rule effectiveness studies were completed
during the year. These were mainly studies of rules regulating volatile organic compounds (VOC).
These studies focused on such issues as: miscellaneous metal parts coatings; stage I and stage II gas
recovery; transfer of organic compounds into mobile transport tanks; operations, motor vehicle and
mobile equipment coating operations; steam generators; and process heaters. (For further information
contact SSCD)
Lead Enforcement
'The Lead National Ambient Air Quality Standards (NAAQS) Attainment Strategy is part of
the Agency-wide Lead (Pb) Strategy to reduce human exposure to lead. In support of the strategy, the
SSCD implemented a technical guidance document entitled "Compliance Inspection and Assistance
Document: Primary and Secondary Lead Smelters and Lead Acid Battery Plants." This technical
guidance is designed to provide guidance to regional and state regulators on minimizing fugitive and
point emissions from lead sources. Several regions use the technical guidance document to address some
of the lead NAAQS compliance deficiencies. (For further information contact SSCD)
National Case Initiative — Louisiana-Pacific Corporation
In FY 1993, EPA concluded a major multi-Regional and multi-State case initiative against
Louisiana-Pacific. This case was nationally managed and developed in cooperation with eight EPA
regional offices. The case was developed because Louisiana-Pacific routinely failed to comply with
prevention of significant deterioration (PSD) and operating permits requirements.
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FY 1993 Enforcement Accomplishments Report ( Sffig v
The settlement resulted in Louisiana-Pacific agreeing to pay a civil penalty of $11.1 million,
the highest penalty collected under the CAA; install state-of-the-art pollution control equipment in a
total of fourteen facilities; employ an environmental manager at each facility; employ a corporate
environmental manager; and conduct a comprehensive audit of its management structure and of all the
practices and procedures at all of its wood panel building products facilities.
This initiative was instrumental in establishing several national precedents. They are: 1) multi-
regional and multi-state approach to locate noncompliance; 2) Consideration of existing technology
applied in other industries as Best Available Control Technology; and 3) State-of-the art technology
for this industry with limited supplemental energy requirements. Moreover, this National initiative
proved to be an outstanding example of coordinated effort among DOJ, EPA Headquarters and regional
offices and the respective state agencies. (For further information contact SSCD)
Compliance Tracking
The air compliance tracking systems, used by federal, state, and local agencies, continued to be
revised and enhanced in FY 1993. AIRS Facility Subsystem (AFS) is an integral component of the air
compliance tracking system and is now used routinely for reporting to the Integrated Data for
Enforcement Analysis (IDEA) system and to the Strategic Tracking and Accountability System
(STARS), In FY 1993, AFS became the system for tracking significant violators by the regions.
Additionally, AFS data is available to assist states using the Inspection Targeting Model (ITM) in
planning yearly inspection priorities.
The National Asbestos Registry System (NARS), used to track asbestos demolition and
reconstruction violators, is an information system that continues to fulfill two major functions: program
reporting and evaluation, and inspection targeting and evaluation. The most important improvements
to NARS, in FY 1993, are on-line availability through the COMPLI Bulletin Board and a major
upgrade of the local tracking system that serves NARS. (For further information contact SSCD)
COMPLI Bulletin Board System
In FY 1993, SSCD initiated the Compliance Information Bulletin Board System (COMPLI - BBS).
COMPLI is part of the OAQPS Technology Transfer Network Bulletin Board System (TTN BBS) and is
available free to any interested party.
There are three major areas of the COMPLI BBS. They are: 1. Databases including the
National Asbestos Register System which lists all asbestos contractors and their compliance history,
and a woodstove database which lists all certified woodstoves and their manufacturers; 2.
Determinations which includes EPA rulings on regulation applicability for stationary sources of air
pollution; and 3. Files which contains documents and reports on training and other technical areas. (For
further information contact SSCD)
Compliance Monitoring Strategy
The Compliance Monitoring Strategy (CMS) provides a flexible and systematic approach for
determining state inspection commitments. The strategy recommends the development of a
comprehensive inspection plan that identifies all sources committed to be inspected by the State agency
during its fiscal year.
The SSCD provided continued support of the Inspection Targeting System (ITS) during FY 1993.
This model (formerly called the Inspection Targeting Model) is used to assist states in developing their
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comprehensive inspection plans. It takes into consideration quantitative factors, qualitative factors,
emissions, and past compliance history when ranking sources for inspection. In addition, states input
their available inspection resources in ITS in order to finalize the list of sources to be targeted for
inspections.
During FY 1993, new features were added to this system and the Inspection Targeting System
version III was released. Major new features include: The ability to download key identification,
emissions, and compliance data from AFS; to upload inspection data to AFS; and to enter inspection
commitment flags into APS. Additionally, a number of new State agencies were trained in the use of the
system and used it to establish their inspection commitments.
The CMS is in the process of being revised to accommodate the requirements of the 1990 CAAA. A
greater universe of sources will be covered by the strategy due to the decreased size cut-offs for major
sources. In addition, titles V and VII require sources to keep and submit self-monitoring reports. The
revised CMS will describe how the review of these self-monitoring reports shall be included in an
overall inspection plan developed by a state. (For further information contact SSCD)
Rule Development
Enhanced Monitoring (40 CFR Fart 641 - The Enhanced Monitoring (EM) program proposal was
signed by the EPA Administrator on September 30,1993. This action is intended to satisfy the statutory
requirement found in § 114(a)(3) of the Clean Air Act that the Administrator promulgate rules to
provide guidance and to implement enhanced monitoring and compliance certifications for major
stationary sources. The EPA intends to require each source subject to Part 64 to submit an annual
compliance certification and monitoring reports each quarter detailing any deviations from applicable
requirements in the source's permit. The EM program requires continuous compliance with underlying
regulations and establishes a direct link between monitoring data and enforceability.
Citizen Notice Rule (40 CFR Part 54) - The Citizen Suit Notice Rule, proposed on February 10,
1993, sets forth the manner in which notice of citizen suits is to be provided as required by § 304 of the
1990 CAAA. The proposed rule replaces the existing CAA citizen suit regulation at 40 CFR Part 54.
This rule clarifies the notice requirements for the various types of citizen suits. Moreover, it brings the
CAA citizen suit notice practice into conformity with the notice practice under other, more recent
environmental statutes. The regulatory changes made pursuant to the 1990 CAAA include provisions
governing citizen suits against EPA for actions that are alleged to be unreasonably delayed. (For further
information contact SSCD)
Inspection Training and Delivery Demonstrations
Training is an important component of the air compliance program. The following are the
highlights of the FY 1993 training accomplishments; \
The EPA-funded Air Pollution Compliance Training Demonstration Center at Rutgers University
completed its second year in FY 1993. This is a three-year demonstration project for 15 State and local
agencies and EPA Regions I, II, and III that features a 24 week per year inspector training curriculum,
offsite training in Region I, and industry training. The quarterly training is organized into three levels:
basic and safety; inspection and monitoring; and program specific courses. To date, more than 2,000
students have been trained.
Compliance Program Development Projects are multi-year cooperative agreements among
OAR/SSCD, the regional offices, and state and local agencies. The program was established to
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develop, demonstrate, and deliver quality training to the EPA regional offices, state and local agencies,
and the major providers, i.e., APTI and CARB. Two week training projects have been completed in
California, Ohio, and Michigan,
The EPA-sponsored National Air Compliance Delivery Project (CARB 1) utilized the expertise of
California Air Resources Board (CARB) staff and retired personnel to conduct on-site compliance
training with basic course videos. Fourteen state and local agencies in EPA Regions VIII, IX, and X
completed training for more than 2800 students. (For further information contact SSCD)
Paperwork Reduction Act Compliance
SSCD obtained OMB reapproval for more than 20 information collection requests in FY 1993.
Additionally, SSCD, in conjunction with EPA's Office of General Counsel, the Office of Enforcement, and
the Office of Policy, Planning, and Evaluation, published a display table listing information collection
request approval numbers in the Code of Federal Regulations, As a result of these efforts, SSCD
information collection requests meet the requirements for information collections under the Paperwork
Reduction Act. (For further information contact SSCD)
dean Air Act - Mobile Sources
Cross Border Sales Policy
With New York's adoption of California's motor vehicle emission standards and requirements,
the Manufacturers Operations Division (MOD) revised its policy governing the sale of vehicles
manufactured to meet California standards in bordering states that must comply with Federal motor
vehicle emission standards. This policy is a major achievement in EPA's attempt to create cooperative
policies with the states to maximize overall emissions reductions while minimizing any adverse
affects on the U.S. motor vehicle sales market. (For further information contact MOD)
Nonroad Engine Regulations
To ensure enforceability, MOD participated in the promulgation of proposed emission regulations
governing nonroad large compression-ignition engines (the NPRM was published on May 17, 1993).
MOD is also participating heavily in developing phase 1 regulations for non-road small spark-ignited
engines. The phase 1 regulations are expected to be promulgated sometime in FY 1994. (For further
information contact MOD) -^ :
Penalty Policy
In FY 1993, MOD promulgated a revised penalty policy pursuant to §§ 203, 205, and 208 of the
Clean Air Act. These sections of the Act require manufacturers and/or importers of new motor vehicles
and new motor vehicle engines to comply with all federal emission standards and requirements. The
new policy incorporates the 1990 Clean Air Act Amendments which adjusted maximum penalty amounts
available for violations and added new administrative hearing procedures for pursuing penalties. (For
further information contact MOD)
Volatility Enforcement Program
The volatility regulations, which were promulgated on March 22, 1989, require that
gasoline sold, offered for sale, dispensed, supplied, offered for supply, transported or introduced
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FY1993 Enforcement Accomplishments Report
into commerce, during volatility control periods, not exceed the applicable Reid vapor pressure
("RVP") standard. Since 1990, the volatility control period has been from May 1, through
September 15. The purpose of the regulations is to reduce evaporative hydrocarbon emissions
which contribute to ozone pollution levels.
During the 1992 volatility control season, the volatility standards were made more
stringent. Two hundred forty-one NOVs were issued for violations detected that season. As a
result of these NOVs, subsequent settlement activities and a strong enforcement presence in the
field during the 1993 control period, FOSD saw a significant reduction in volatility violations in
FY 1993. Despite inspecting approximately the same number of parties in FY 1993 as in FY 1992,
as of November 9, 1993, only 17 NOVs had been issued for volatility violations detected during
the 1993 volatility control season, and approximately 50 more NOVs were expected to be issued.
It appears that the compliance rate of regulated parties was over 98% for the 1993 season. This
reduction in violations indicates that the volatility enforcement program has been a great success.
(For further information contact the Field Operations and Support Division (FOSD))
Diesel Desulfurization
During FY 1993, FOSD prepared for the implementation and enforcement of the new diesel
sulfur regulations which became effective on October 1, 1993. The purpose of the regulations is to
substantially reduce the sulfur content in diesel fuel which contributes to the harmful particulate
emissions from diesel motor vehicles.
As part of EPA's public outreach efforts, FOSD received approximately 2,000 telephone and
written inquiries concerning EPA's interpretation and intended enforcement of the regulations. These
efforts culminated in the issuance of a thirty-three page Question and Answer document on August
5, 1993. FOSD managers, attorneys and inspectors spoke at twelve industry meetings in order to
disseminate information regarding the regulations. During this same time, FOSD was developing
its enforcement plan, which included procurement of field test equipment, training of EPA and
contractor personnel, formulation of an enforcement strategy, and development of a civil penalty
policy.
In the first weeks after implementation of the rule on October 1, FOSD received over a
thousand additional inquiries regarding further interpretation of the regulations. FOSD responded
to several crises, including supply outages, significant price increases and most recently, alleged
fuel/engine materials incompatibility problems.
FOSD is participating in an IRS task force, providing input to the IRS in order to prevent
any conflicts between EPA's diesel sulfur regulations and the soon to be promulgated IRS highway
tax collection regulations. FOSD continues to work with the industry, other federal and state
agencies, and the public to ensure smooth implementation of an aggressive nationwide enforcement
program. (For further information contact FOSD)
Reformulated Fuels and Anti-Dumping
The reformulated gasoline and anti-dumping program rule is scheduled to be published
during December 1993. The rule will provide for the program to commence on January 1, 1995. The
reformulated gasoline regulations will result in the reduction of VOC, and toxic emissions by 15%
in 1995, with even greater reductions beginning in 2000. These regulations apply to the nine worst
ozone nonattainment areas in the country, while all other ozone nonattainment areas will allowed
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FY1993 Enforcement Accomplishments Report 5SS *
to "opt in" to the program. The anti-dumping regulations will ensure that the quality of gasoline
in the remainder of the country does not degrade from its 1990 levels.
EPA continues to work on program issues including: the role of ethanol in reformulated
gasoline; whether EPA will publish test tolerances for fuel parameters; treatment of foreign
refiners in establishing baselines; and the use of markers or dyes to distinguish conventional
gasoline from reformulated gasoline. (For further information contact FOSD)
Detergent Additized Gasoline
In FY 1993, EPA drafted and submitted to OMB its proposed detergent regulations and
Federal Register preamble. The regulations were drafted pursuant to the mandate of the Clean
Air Act Amendments of 1990 which require that, by 1995, all gasoline contain detergent additives
to prevent the formation of engine and fuel system deposits. These deposits have been shown to
cause increases in hydrocarbon emissions which are major contributors to urban smog. The
detergent Notice of Proposed Rulemaking was expected to be signed by the Administrator and
published in the Federal Register by the end of 1993. The Final Rule was expected to be
promulgated by the end of 1994. (For further information contact FOSD)
Clean Water Act
Litigation Consideration Guidance for CWA Penalty Policy
Guidance was developed in FY 1993, setting forth general procedures, rules of thumb and lists on
how litigation considerations may be used in establishing or revising bottom-line settlement penalties
in CWA cases. The guidance was issued on October 10, 1993 and will facilitate Agency closure on
acceptable settlement positions in connection with NPDES cases. (For further information contact OE-
Water)
Supplemental Guidance on CWA §309(g)(6)
In March 1993, supplemental guidance on EPA policy interpreting § 309(g)(6) was issued. The
guidance specifies the circumstances under which federal civil action is limited by prior state or
federal administrative action. (For further information contact OE-Watcr)
CWA §504 Emergency Action Guidance
Guidance concerning CWA § 504 was issued in July 1993. The guidance provides instructions and
encouragement on the use of the emergency powers provision of the Clean Water Act in appropriate
circumstances. Clarity on this issue should facilitate Agency decisions regarding use of CWA emergency
provisions.
Water Enforcement Bulletin
A new issue of the highly acclaimed Water Enforcement Bulletin was released in February 1993.
Twenty-four administrative and judicial water decisions were summarized and the Bulletin was
distributed to the Regions, States and interested members of the citizen suit community. (For further
information contact OE-Water)
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FY1993 Enforcement Accomplishments Report
CWA Citizen Suits
The Office of Enforcement continues to review all water enforcement cases filed by citizens. In FY
1993, the Office of Enforcement reviewed approximately 190 60-day notice letters filed informing the
Agency and the violator that citizens were going to file suit. The Office of Enforcement also reviewed
approximately 50 consent decrees from citizens bringing suits for violations of the Clean Water Act,
Safe Drinking Water Act, or Ocean Dumping Act. The Office of Enforcement review of citizen suit
settlements is conducted to determine whether the penalties, supplemental environmental projects and
injunctive relief achieve Agency goals, promote compliance, follow regulatory requirements, and avoid
problematic judicial precedents. Where a citizen suit settlement is considered deficient in any of these
respects, and the parties fail to negotiate a better result, EPA and the Department of Justice may file
comments or objections with the court or an amicus brief, setting forth the position of the United States.
(For further information contact OE-Water)
Sewage Sludge Record Keeping and Reporting Guidance
The Office of Wastewater Enforcement and Compliance completed and distributed the first in
a three document series of the Part 503 Domestic Sewage Sludge guidance which explains the
record keeping and reporting requirement for Sewage Sludge generations/processors. Additional
Guidance for Land Application and Surface Disposal will be completed by the end of December
1993. (For further information contact the Office of Wastewater Enforcement and Compliance
(OWEC))
Inspection Training
Four inspector training videos were completed and distributed to EPA regions and states
covering the topics of NPDES records review, wastewater sampling, flow measurement with a
Parshall Flume, and Sludge Sampling. In August a two part televideo conference which addressed
inspection training and training resources was linked to EPA/State participants in all ten regions.
The first draft of the update to the NPDES Compliance Inspection Manual was completed.
Twenty contract inspections were conducted involving on-the-job training of EPA/state inspectors.
(For further information contact OWEO
Sludge Compliance Monitoring and Enforcement Strategy
The Enforcement Division completed a national Strategy for compliance monitoring and
enforcement of the sludge regulations promulgated on February 19, 1993. The Strategy sets national
priorities for the universe of facilities in the following areas: inspections, reporting, data
tracking, and compliance evaluation. The Strategy also establishes minimum target enforcement
levels for various violations of the regulations. The Strategy balances the need for an effective
presence on the part of the EPA with the resource constraints facing the program. (For further
information contact OWEC)
Feedlots
OWEC produced and published a background report covering: 1) the magnitude of the
pollution caused by animal waste, 2} permitting, 3) verification of compliance, and 4) education
and outreach. OWEC also developed a guidance manual which interprets and clarifies NPDES
regulations for operations concentrated animal feeding
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FY1993 Enforcement Accomplishments Report
Finally, OWEC developed a strategy for improving control of pollution from animal waste.
The strategy incorporates permitting, enforcement, and education and outreach activities; can be
easily integrated into other EPA initiatives and strategies; and requires few resources.
Expectations are to begin implementation of the strategy during FY 1994, and finalize the
guidance in January 1994, (For further information contact OWEC)
Safe Drinking Water Act
PWS '
PWS Penalty Policy
The Public Water Supply Penalty Policy was issued for interim use on May 3, 1993- The policy
contains detailed guidance on litigation considerations and how such considerations may reduce the
Agency's bottom line settlement demands. The policy will facilitate regional decisions on acceptable
settlement positions in connection with PWS drinking water cases. {For further information contact OE-
Water)
Guidance on Enforeeability of Filtration Determinations
Final guidance on the enforceability of filtration determinations was issued November 30,1992.
This guidance resolved a number of issues that had stood in the way of effective enforcement of this
drinking water rule. (For further information contact OE-Water)
uic
Second Round Class V Initiative
There was a second round UIC enforcement initiative against eleven national oil companies for
unauthorized injection in Class V (shallow) wells. The relief sought included proper plugging of the
wells as well as payment of significant penalties. (For further information contact OE-Water)
Oil Pollution Act
EPA/Coast Guard Oil Pollution Act Enforcement MOU
A memorandum of understanding (MOU) by EPA, the Coast Guard and the Department of Justice,
concerning enforcement of the Oil Pollution Act, was signed in March 1993 and published in the Federal
Register in April 1993. The MOU clarifies the roles of each of the Federal parties with respect to Oil
Pollution Act enforcement. (For further information contact OE-Water)
SPCC/Spill (Oil Pollution Act) Administrative Penalty Policy
The Oil Pollution Act Administrative Penalty Policy was issued for interim use on September 13,
1993. The policy contains detailed guidance on litigation considerations that may affect the settlement
position of EPA in particular cases. The policy facilitates Agency closure on acceptable settlement
positions in connection with the Oil Pollution Act cases. (For further information contact OE-Water)
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Resource Conservation and Recovery Act
1993 Hazardous Waste Combustion Initiative
The ECRA enforcement program announced a National Enforcement Initiative focusing on
violators of the hazardous waste combustion laws. The Regions issued 28 administrative complaints
against violators of the boiler and industrial furnace regulations, and two administrative complaints
involving violations of the hazardous waste incinerator requirements. In addition, the State of Illinois
announced an action seeking a $3 million penalty from one incinerator operator. Penalties assessed in
federal administrative complaints exceeded $19.8 million. (For further information contact the Office
of Waste Programs Enforcement /RCRA Enforcement Division (OWPE/RED))
Illegal Operators Initiative
Continuing the emphasis on RCRA waste handlers attempting to avoid the regulatory system,
the RCRA enforcement program announced a two-phase initiative against RCRA non-notifiers. The
Initiative included Regional and State enforcement actions against hazardous waste generators,
transporters, treatment, storage and disposal facilities that had failed to notify EPA or State
authorities of hazardous waste activities. The Illegal Operators Initiative included 4 civil judicial
complaints; 26 federal administrative complaints; 12 federal criminal actions. Total penalties assessed
in cases for the initiative exceeded $10 million. (For further information contact OWPE/RED)
Off-site Rule
The "Procedures for Planning and Implementing Off-site Response Actions" were promulgated on
September 22,1993. This rule was written by OWPE and it codifies the current "Off-site Policy". The
rule establishes criteria that must be met for waste from a Superfund clean-up to be sent off-site for
treatment or disposal. The rule is effective October 22, 1993. (For further information contact
OWPE/RED)
Conclusion of DuPont/Chambers Works Waste Minimization Project
OWPE and Region II concluded the two year waste minimization project conducted at the DuPont
Chambers Work facility in Deepwater, New Jersey. This project was mandated as part of a $1.85
million dollar settlement for violations of the Land Disposal Restrictions and began in May 1991.
Pollution prevention assessments were performed on fifteen chemical processes to accomplish three
primary goals:
* to identify methods for the actual reduction or prevention of pollution for specific
chemprocesses at Chambers Works,
• to generate useful technical information about methodologies and technologies for reducing
pollution which may help assist companies implementing pollution prevention.programs, and
• to evaluate and identify potentially useful refinements to the EPA and DuPont methodologies
for analyzing and reducing pollution and/or waste generating activities.
The project involved about 150 people at the site who devoted more than 12,000 person-hours to
the project. For the fifteen processes investigated, the potential exists to reduce the hazardous wastes
by 48% and to save $14.9 million each year. DuPont submitted the final report on May 22,1993 and it
has been published by ORD for public distribution. (For further information contact OWPE/RED)
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Advanced RCRA Inspector Institute
OWPE has developed an advanced RCRA Inspector Institute to train state and regional
inspection personnel. The RCRA Enforcement Division (RED) presented the Advanced RCRA Inspector
Institute in San Francisco in June 1993 and in Boston in December 1993. (For further information contact
OWPE/RED)
Penalty Policy
OWPE/RED and OE-RCRA held the RCRA Civil Penalty Policy Workshop and Roundtable.
RCRA Program personnel and the Regional Counsel staff from all ten Regions attended this Workshop.
Part of the Workshop was devoted to discussing "Train the Trainer" materials which had been
prepared for the Regions. With these materials, the Regions can conduct their own RCRA Civil
Penalty Policy training for Regional personnel and the States.
Final penalties assessed in FY 1993 remained high, surpassing final penalties assessed in FY 1991
and FY 1992. Total penalties assessed in §3008 final Consent Orders equaled $8,556,000. The average
penalty assessed was $79,000. (For further information contact OWPE/RED)
Alternative Dispute Resolution
OWPE/RED and OE/Superfund conducted training in all regions on the use of Alternative Dispute
Resolution (ADR) in enforcement negotiations. The training included an exercise on the differences
between arbitration and mediation as well as a mediation of a Superfund and RCRA corrective action
dispute.
OWPE/RED provided assistance to Region VI to support the use of mediation in an access dispute.
This represents one of the first uses of ADR in the RCRA program. (For further information contact
OWPE/RED)
Boiler and Industrial Furnace Inspection Workshop
OWPE developed and conducted a one-and-a-half day workshop in six Regions on how to conduct
inspections at boiler and industrial furnace (BIF) facilities that burn hazardous waste. The workshop
was attended by approximately 264 state and regional RCRA inspectors and compliance personnel.
(For further information contact OWPE/RED)
Superfimd
Supplemental Guidance on Federal Superfund Liens
On July 30, 1993, EPA released national guidance for providing owners of contaminated
property with notice and an opportunity to meet with EPA before a Superfund lien is perfected on
their property. Under the guidance, EPA will notify property owners by registered mail prior to
perfecting a lien on their property. Property owners will have the opportunity to either make
written submissions to the Agency (for example, make available documents indicating that they
are not the owner) or meet with EPA staff before a neutral EPA official. Under the guidance, the
neutral official will hear the property owner's presentation, and then, based on a record of
relevant documents, decide whether or not EPA has a reasonable basis to perfect the lien.
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FY 1993 Enforcement Accomplishments Report
The guidance provides property owners an opportunity to give EPA information that might
change the Agency's proposed determination to perfect a Superfund lien. EPA's issuance of this
guidance is one of the first examples of its larger effort to make administrative improvements to
Superfund. (For further information contact OE-Superfund)
De Micromis Guidance
On July 30, 1993, The Office of Enforcement and the Office of Waste Programs Enforcement
issued a memorandum entitled "Guidance on CERCLA Settlements With De Micromis Waste
Contributors." The purpose of the memorandum is to provide guidance on using CERCLA's
settlement authorities to resolve the CERCLA liability of parties who have contributed even less
hazardous substances to a site than the traditional de minimis settlors the Agency pursues. The
memorandum describes the types of situations in which a Region may find that it is in the
Agency's interest to exercise enforcement discretion by offering de micromis settlements and
explains how to use EPA's existing settlement authority in an expeditious manner to resolve the
liability of these de micromis parties and to grant them the fullest contribution protection available
under the statute.
The Agency plans to issue a supplemental memorandum that will include a model CERCLA §
122(g) administrative agreement, a model CERCLA § 122(g) consent decree, a model § 122(g)
Federal Register notice, a questionnaire, a certification, and examples of notification letters to
send to potential de micromis settlors. (For further information contact OE-Superfund)
Alternative Dispute Resolution
FY 1993 was a watershed year for efforts toward meeting the Agency's stated policy of
utilizing alternative dispute resolution (ADR) mechanisms in all Agency enforcement actions
where a more prompt and fair resolution of a dispute could potentially result ("Final Guidance on
Use of Alternative Dispute Resolution Techniques in Enforcement Actions") and to implement the
Administrative Dispute Resolution Act and the Executive Order on Civil Justice Reform.
Significant strides were made in every aspect of our ADR program including case use of ADR, case
support systems, training and internal ADR services, and outreach to the regulated community.
ADR mechanisms, primarily mediation and convening services, were initiated in eighteen
enforcement actions during FY 1993, almost double the number for FY 1992. Regional support for
the use of ADR grew substantially, with all but one region using ADR to assist settlement efforts.
FY 1993 also heralded an increased awareness of ADR as a tool for increasing the efficiency of
future disputes with mediation included in the dispute resolution provisions of eight judicial and
administrative settlement documents.
Region I took the lead during 1993 in developing the consideration and appropriate use of
ADR as standard procedure for civil actions. Region I initiated an expansive ADR program with
regional training and the use of ADR in cost recovery and RD/RA actions. The region also
initiated an innovative use of mediation to facilitate public deliberations regarding the
implementation of Agency Superfund remedial decisions.
The scope of ADR use was expanded during FY 1993, with the first significant uses of ADR to
assist disputes beyond Superfund cost recovery and RD/RA cases. Mediation was used for the first
time to resolve a Clean Water Act NPDES violation action and to facilitate public deliberations
regarding the issuance of an NPDES permit. In the Superfund program, ADR was used for the
first time to facilitate the settlement of a large removal action and to assist negotiations
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FY1993 Enforcement Accomplishments Report
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involving federal" PRPs. Progress was also made toward developing the use of ADR in ECRA
enforcement actions through a pilot program initiated during FY 1993.
Another area of expansion for the ADR program during FY 1993 was the use of ADR to
facilitate the resolution of PRP allocation disputes. Two major initiatives to provide ADR support
to PRP allocation efforts were included in the Deputy Administrator's Superfund Administrative
Improvements Project. Regional offices have begun a major effort to identify appropriate sites and
offer ADR assistance to PRPs.
Training in the effective use of mediation and other ADR techniques was provided to all
regional offices and Headquarters during FY 1993. The intensive one-day training was designed
for legal and program staff who participate in enforcement settlement activities. The ADR Users
Training, taught jointly by EPA ADR staff and ADR professionals who have served as mediators
in Superfund cases, concentrates on the inherent difficulties in Agency negotiations and how use of
ADR can facilitate prompt resolution of such disputes. In addition, training support was provided
to several state environmental agencies including presentation of the ADR Users Training for staff
of the Vermont Department of Natural Resources. An executive ADR training was also designed
and developed during 1993 for presentation to senior Agency andDOJ enforcement staff next year.
Several efforts were also completed during FY 1993 to expand the institutionalization of
ADR into the Agency's enforcement program. Under the auspices of the ADR Liaison, a national
network of ADR contacts and ADR experienced staff in each region was organized. The network
holds monthly conferences calls to exchange information and serves as consultants to Agency staff
on the effective use of ADR. In response to regional requests, a cost benefit analysis of the use of
mediation in support of Superfund actions was undertaken based on results of a Region V pilot project
The study indicates that substantial savings in terms of regional staff resources is obtained
through the use of ADR, with savings of 30%-50% per case documented. In addition, work was
begun on an ADR Users Manual to provide a desk reference in the effective use of ADR.
Substantial progress was also made during FY 1993 in educating the regulated community of
the Superfund ADR program and the potential for use of ADR techniques to reduce PRP and
government transaction costs. The ADR Liaison, several regional ADR Contacts, and EPA
management made presentations and provided training programs on effective ADR use for
numerous professional and PRP organizations and several federal agencies. In addition, a
workshop exploring opportunities to use ADR to increase the effectiveness and fairness of the
Superfund program was scheduled for November 1993. (For further information contact OE-Superfund)
CERCLA Reauthorization
During FY 1993, EPA prepared for the debate over reauthorization of CERCLA. The Agency
considered reauthorization proposals spanning a great variety of issues. Among the most prominent
of these issues was the statute's liability scheme,
The Office of Enforcement played a leading role in the conception and articulation of a
variety of potential liability scheme related legislative changes to CERCLA, all intended to
improve the fairness of the liability scheme and reduce the transaction costs associated with it.
Areas of fqcus included the liability of small contributors of hazardous substances, contributors of
Municipal Solid Waste, and prospective purchasers of contaminated property, as well as the
allocation of cleanup cost shares and the finality of settlements, among other areas. (For further
information contact OE-Superfund)
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FY1993 Enforcement Accomplishments Report
Final Off-Site Rule Published in Federal Register
The Final Off-Site Rule was published in the Federal Register on September 22, 1993 (58
Fed, Req- 49200). The rule will become effective October 22, 1993. The Off-Site Rule supersedes
the directive entitled "Revised Procedures for Implementing Off-Site Response Actions" (Porter,
Nov. 13, 1987), (OSWF. R Directive -9834.11, Nov. 13, 1987.) The Off-Site Rule implements
C1RCLA Section 121(d)(3) requirements to insure thatCERCLA wastes are transferred only to
environmentally-sound facilities, and that they do not add to environmental problems. The rule
applies to any action, either removal or remedial, taken pursuant to CERCLA authorities (or
with Fund money) that involves the off-site transfer of any hazardous substance, pollutant or
contaminant. (For further information contact OE-Superfund)
Foster More Settlements with Small Volume Waste Contributors
In July 1993, EPA released the "Streamlined Approach for Settlements with De Minimis Waste
Contributors." The guidance establishes the minimum level of information required before EPA can
make a de minimis finding. The guidance states that it is no longer necessary to prepare a waste-in list
or volumetric ranking before considering a party's eligibility for a de minimis settlement.
In July 1993, EPA released the "Guidance on CERCLA Settlements with De Micromis Waste
Contributors." The guidance establishes the use of CERCLA settlement authorities to resolve the
CERCLA liability of parties who have contributed even less hazardous substances to a site than the de
minimis parries the Agency traditionally pursues.
In October 1993, EPA released "The First 125 De Minimis Settlements: Statistics from EPA's De
Minimis Database." This report profiles the 125 settlements to date, providing insight into average
volumetric contributions, payment amounts, etc.
A communication strategy was also issued for assisting de minimis and "de micromis" parties.
(For further information contact OWPE-Superfund Enforcement)
Mixed Funding Activities
In September 1993, EPA released the "Mixed Funding Evaluation Report: The Potential Costs.of
Orphan Shares." This report analyzes the implications to the Trust Fund if EPA routinely paid for the
orphan share of cleanup costs to implement the remedial design/remedial action (RD/RA). (For further
information contact OWPE-Superfund Enforcement)
SPCOSpill OPA Draft Administrative Penalty Policy
The Oil Pollution Act Administrative Penalty Policy was issued in draft form on September 13,
1993. The proposed policy contains detailed draft guidance on litigation considerations that may affect
the settlement position of EPA in particular cases. The proposed policy will facilitate Agency closure
on acceptable settlement positions in connection with OPA cases.
EPA issued an "enforcement authorities and elements of violations/evidentiary requirements
under the Clean Water Act §311." This will be used to train and assist Agency personnel in the
development of OPA enforcement cases. (For further information contact OWPE-Superfund Enforcement)
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FY1993 Enforcement Accomplistments Report f S^Z I
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Toxic Substances Control Act
TSCA Sections 5 & 8 Initiatives Focus on Data and Data Quality
In FY 1993, EPA launched and ended the year with two TSCA new chemical and reporting
initiatives designed to heighten awareness of the need to file quality data on time. On December 17,
1992, EPA announced a TSCA sections 5 & 8 initiative seeking more than $9 million in administrative
civil penalties from 22 companies. EPA Headquarters and nine regional offices filed the cases, with
eight companies self-disclosing violations and the remaining fourteen companies inspected by EPA.
Many of the cases are still pending.
On September 30, 1993, EPA closed the fiscal year by announcing another TSCA sections 5 & 8
initiative, this time seeking nearly $25 million in administrative civil penalties from 23 companies.
EPA Headquarters and eight regional offices filed the cases, with thirteen companies self-disclosing
violations and the remaining ten companies inspected by EPA. (For further information contact OE-
TLD)
National TSCA IUR Initiative
During the week ending July 23,1993, administrative civil penalty complaints were filed by EPA
Headquarters and four regional offices (Regions II, III, V, and VI) against 27 U.S. chemical
manufacturers which failed to report in a timely and accurate manner, data required by the Inventory
Update Rule (IUR) regulations, promulgated pursuant to § 8{a) of TSCA. Approximately $3.1 million
in penalties were proposed in these complaints. The complaints issued were the result ot violations
detected during Agency record audit reviews and regional inspections.
The IUR is a regulatory reporting requirement in which facilities report the quantity and site of
manufacture or importation of chemicals on the Agency's TSCA Inventory List. The IUR provides
information essential to regulatory and non-regulatory activities, including hazard and risk screening,
chemical assessment, risk management, pollution prevention, regulatory priority setting and the
regulatory development process. (For further information contact OE-TLD)
Case Development Training, and Manual
During FY 1993, Case Development Training was conducted in Kansas City, Missouri and San
Francisco California. The course covered topics such as; evidence collection, evidence evaluation,
the civil administrative process, and other types of enforcement actions. Approximately 59 state
and federal case officers, attorneys and inspectors attended. Each attendee received a manual
covering pertinent TSCA, FIFRA and EPCRA law as well as a TSCA case study in connection with
a mock settlement conference. (For further information contact the Office of Compliance Monitoring
(OCM))
OPPT Inspection Training Strategy
In March 1993, OCM and Region IV jointly released the first national OPPTS inspector
training strategy. The strategy was developed over a six month period by a group of 24
regional, state, and HQ representatives, it addresses pesticides, asbestos, PCBs, core TSCA and
EPCRA § 313 inspector training needs. The strategy, which is now being implemented, details the
content of each training course, timeframes and delivery mechanisms for a three year period, (For
further information contact OCM)
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FY1993 Enforcement Accomplishments Report
Federal Insecticide. Fungicide, and Rodenticide Act
FIFRA § 19
The FIFRA § 19(f)(2) final policy was published on August 18, 1993, This policy provides
an Interim Process for state enforcement programs to be approved as required by the statute in
order to prevent loss of state authority to certify applicators and primary use enforcement
responsibility.
The FIFRA § 19 Procedural Rule (Phase 1) proposed rule was published on May 5,1993. This
rule addresses the following requirements related to suspended and canceled pesticides; Mandatory
Recalls, Voluntary Recalls, Indemnification, Storage Plans and Acceptance for Disposal. (For
further information contact OCM)
Exports
The final Pesticide Export Policy Statement/Rule was published February 18, 1993. This
policy revised the 1980 pesticide export policy; changes in the policy incorporated many
recommendations from GAO's report on pesticide exports and those recommended by the EPA's
review of its policy at a time of growing public concern over residues in imported foods. An
Interpretive Workgroup on the Pesticide Policy was established to answer questions regarding the
interpretation of the new Export Policy, {For further information contact OCM)
Emergency Planning and Community Right to Know Art (EPCRA) § 313
Worker Protection Inspection Guidance, Pocket Guide and
Inspector Training Course
During FY 1993, EPA developed the pesticides worker protection inspection guidance, pocket
guide for inspectors, and the draft worker protection inspector training course, which will be
delivered in FY 1994. All of these products will be tools used nationally to help ensure
compliance with the revised worker protection standards. (For further information contact OCM)
Interim Final EPCRA Section 313 Inspection Guidance
At the beginning of FY 1993 EPA released the Interim Final EPCRA § 313 Inspection
Guidance which addressed conducting nonreporter and data quality inspections. The Guidance
addressed the EPCRA § 313 compliance priorities. (For further information contact OCM)
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FY1993 Enforcement Accomplishments Report
VL Media Specific Enforcement Performance and
Regional Accomplishments
A. Media Specific Enforcement Performance
Super fund Enforcement
FY 1993 was a respectable year for the Superfund Enforcement Program. The program reached a
total of 200 settlements (NPL & Non-NPL) with estimated values greater than $950 million with
potential responsible parties (PRPs). Of this total amount, approximately $810 million was for § 106
or § 106/107 remedial design/action (RD/RA) settlements. The estimated RD/RA settlement values
were broken down into three categories. The first category was composed of 36 §106 or § 106/107 consent
decrees for RD/RA referred by the Agency to the Department of Justice (DOJ), for PRP remedial work
estimated at $366.3 million. The second category was made up of 42 unilateral administrative orders
(UAOs) issued under § 106(a) authority, and for which PRPs notified the Agency of their intent to
comply. The estimated value of RD/RA work to be performed under these UAOs was put at $420.6
million. The final category of remedial settlement consisted of eight administrative orders on consent
(AOCs) for remedial design only, reached through the SACM initiative. The estimated value of .design
work under these AOCs was estimated to value over $24 million.
In FY 1993 the Agency issued a total of 126 unilateral administrative orders (UAOs), versus 107 in
FY 1992, and 108 AOCs (versus 128 in FY 1992) were signed with PRPs. Of a total of 126 UAOs issued, 50
were for RD/RA (42 in compliance), with the balance for other response work at NPL and Non-NPL
sites. Under § 107 and § 106/107 settlements, the Agency referred 41 cases (36 referrals in FY 1992) to
DOJ seeking and achieving $155 million for past costs incurred by the program (compared to $137.4
million referred in FY 1992). Since the inception of the Superfund Program in 1980, PRPs have
committed to response actions estimated at over $8 billion, and the program has achieved settlements
for over $1 billion in past costs. The percentages of PRP lead at NPL sites in FY 1993 for remedial
design and remedial action responses were 65% for RD and 79% for RA respectively (Federal Facilities
excluded). In FY 1992, the percentage of PRP leads at NPL sites was 73% for remedial designs, and 72%
for remedial actions.
* 200 T Total RI/FS
180 . .
Superfund Program Accomplishments
(All Actions)
Total ROD
Total RD
Total RA
1
1
I
I
FY90 FY91 FY92 FY93 FY90 FY91 FY92 FY93 FY9Q FY9I FW2 FY93 FY90 FY91 FY92 FY93
H PRP- Lead Response
O Fund-Lead Response
• EPA Selected Remedy
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Clean Air Act - Stationary Sources
Significant Violators/Timely and Appropriate Guidance
The Significant Violators program is central to the air enforcement and compliance program
because it establishes a structure to identify and correct the most important noncompliance situations.
FY 1993 was the first full year of implementation of the revised Significant Violators/Timely
and Appropriate (SV/T&A) Guidance, which revised the definition of a significant violator, thus
expanding the universe of potential violators. Consequently, significant violator activity has greatly
increased. By the end of FY 1993, there was a 150 percent increase in the number of significant violators
identified over FY 1992; the number of significant violators that were addressed (i.e., by issuing Civil
Referral, Administrative Penalty Order, Consent Decree, etc.) increased by 80 percent; and the universe
of significant violators at the end of FY 1993 doubled. The increase in the number of significant
violators is an indication of the successful implementation of the SV/T&A Guidance. (For further
information contact SSCD)
Significant Violators Data
The census of significant violators (SV's) at the end of FY 1993 is 805, which is double the census
at the end of FY 1992. In FY 1993, 1590 SV's were added and 1520 SV's were addressed, which are
increases of 150 percent and 80 percent respectively over FY 1992. Regarding the timeliness of
enforcement response to identification of significant violators, issue, 63 percent of SV's were addressed
within the 150 day time frame set by the SV/Timely and Appropriate Guidance, which is an
improvement from the previous year.
Enforcement Activities
During FY 1993, the regional offices referred 72 civil enforcement cases to the Department of
Justice, which is slightly lower than in the previous year, and filed 140 administrative penalty orders
(APOs). Moreover, approximately 61 final settlements of APOs were filed in FY 1993.
Stratospheric Ozone Protection Compliance Activities
Over 2000 inspections under the title VI CFC regulations were conducted in FY 1993. Thirty-four
percent of all the APOs in FY 1993 were issued for CFC violations.
Clean Air Act - Mobile Sources
Manufacturers Operations Division
The Manufacturers Operations Division (MOD) in the Office of Mobile Sources (OMS) enforces
the provisions of Title II of the Clean Air Act related to the manufacture and importation of new motor
vehicles and motor vehicle engines. Specifically, MOD ensures that new motor vehicle manufacturers
and importers comply with all Federal emission standards and requirements. MOD enforcement and
compliance is conducted by the program office at headquarters. The Division conducts investigations,
inspections, and testing of new and in-use motor vehicles and motor vehicle engines.
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Motor Vehicle Emissions Recalls
MOD's recall testing program continued to implement Federal emission requirements efficiently
and effectively in FY 1993. Since the beginning of the recall program, a total of 46 million vehicles
have been recalled. Thirty-four million of those vehicles were recalled as a direct result of EPA
investigations.
In FY 1993, the motor vehicle emission recall program continued to play an important role in
MOD's efforts. During FY 1993, MOD investigations resulted in eight influenced recalls involving
three manufacturers and a total of 370,00 recalled vehicles. In addition, 94,000 vehicles were recalled
voluntarily by manufacturers without specific EPA action.
In addition, MOD continued motor vehicle testing in a high altitude area (Denver, Colorado).
This high altitude program conducted in coordination with the Colorado Department of Health
(CDH), was initiated to ensure vehicles operated in high altitude areas comply with Federal emission
standards. Under MOD's direction, CDH tested seven engine families representing over one million
vehicles. MOD expects this testing to result in two influenced recalls. One of these recalls involves
1989 4.0 liter Jeeps which are part of a larger investigation involving defective Chrysler oxygen
sensors. This investigation will result in more than 700,000 and being recalled.
Selective Enforcement AuditingXBanking and Trading Emission Credits
MOD's Selective Enforcement Auditing (SEA) program continued to be a successful and highly
leveraged program. The program consists of production-line emission testing of new light-duty motor
vehicles and heavy-duty motor vehicle engines. The less than 170 individual tests ordered by MOD
induced over 22,000 additional voluntary emission tests conducted by manufacturers.
MOD routinely audits the program that allows manufacturers to average, bank and trade
(A,B&T) particulate matter and oxides of nitrogen emission credits for heavy-duty engines. The
program authorizes manufacturers who reduce emissions below regulatory requirements for a particular
engine to raise emissions from another engine in the current model year or offset these reductions against
emissions in a later model year or to trade credits for these reductions to other manufacturers of similar
engines.
In FY 1993, MOD audited four manufacturers representing approximately fifty percent of
manufacturers using the A,B&T program. Pursuant to these audits, MOD met with manufacturer
representatives to clarify certain program requirements and reviewed A,B&T records. MOD also
initiated a rulemaking to clarify certain accounting requirements in the A,B&T program.
MOD's heavy-duty SEA audits focused on engines that manufacturers selected to participate in
the A,B&T program. SEA audits targeted engines which had family emission limits (FELs) either
below the Federal standards or close to the engines certification level. In FY 1993, SEA conducted ten
heavy-duty engine audits and seven light-duty engine audits. As a result of an SEA, one manufacturer
raised its FEL for an engine family to avoid an audit failure. Another manufacturer suspended
production for one engine family rather than submit to an audit.
Manufacturers Investigations
In addition to the recall and SEA efforts, MOD.continued to ensure that motor vehicle and motor
vehicle engine manufacturers are in compliance with Title II of the Clean Air Act. MOD investigations
focused on manufacturers that introduced vehicles into commerce without obtaining an EPA certificate
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^ ^93 Enforcement Accomplishments Report
of conformity demonstrating compliance with Federal emission requirements. FY 1993 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.
Nonconformance Penalties
MOD also enforces the nonconformanee penalty (NCP) program. Pursuant to § 206(g) of the Act,
the NCP program was established to facilitate the implementation of technology-forcing emission
standards. Specifically, NCPs allow a manufacturer of engines or vehicles that do not meet applicable
emission standards, but are below a designated upper limit, to be issued a certificate of conformity upon
payment of a monetary penalty. In FY 1993, General Motors paid a NCP for one engine family totaling
$3,123.
Imports Program ,
In FY 1993, MOD continued its implementation and enforcement of the Imports program under
Title II of the Clean Air Act. This program, permits independent commercial importers (ICIs) that
possess an appropriate certificate of conformity from EPA to import vehicles that do not comply with
Federal emission standards and requirements (nonconforming motor vehicles). The program also
permits designated Canadian importers (DCIs) to import Canadian motor vehicles determined by EPA
to be identical in all material respects to certified U.S. version vehicles. The ICI or DCI is solely
responsible for meeting all Federal emission standards and requirements for all nonconforming motor
vehicles it imports.
To determine compliance with the Imports program in FY 1993, MOD conducted in-offlce document
audits of all operating ICIs and all shipping company CCPs. In addition, MOD conducted two on-site
ICI inspections, one on-site DCI inspection, and one port-of-call inspection. Pursuant to these audits,
MOD discovered numerous imports regulation violations. In addition, to pursuing enforcement actions
for these violations, MOD is continuing to investigate two other cases involving imports regulations
violations.
MOD also continued to approve and monitor catalyst control programs (CCP). These programs are
managed by other federal agencies, manufacturers, and shipping companies, to ensure the presence and
proper functioning of emission control equipment on U.S. version vehicles driven overseas that are being
returned to the U.S..
Field Operations and Support Division
The Field Operations and Support Division ("FOSD") in the Office of Mobile Sources
("OMS") enforces provisions of the Clean Air Act relating to the composition and use of motor
vehicle fuels and tampering with vehicle emission control devices. FOSD also develops
enforcement policy for OMS in these areas. FOSD's enforcement program includes: field
investigations, augmented by state and local efforts and by contractor inspections; issuance of
Notices of Violations ("NOVs"); negotiation of settlements; preparation for trials, either by
referral to the United States Department of Justice or by the filing of an administrative
complaint; and litigation if necessary. This enforcement program has been extremely successful in
achieving environmental compliance over the years.
FOSD's aggressive enforcement program led to major enforcement achievements during FY
1993. Included among these achievements was a significant reduction in volatility violations in
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FY1993 Enforcement Accomplishments Report
FY 1993 as compared to FY 1992, and a continued increase in compliance with EPA's policy on
installation of aftermarket catalytic converters. FOSD also worked hard to prepare for the
implementation and enforcement of the new diesel sulfur regulation which became effective on
October 1, 1993, and continued working on development of enforcement provisions for the
reformulated gasoline/anti-dumping regulations and detergent regulation.
In FY 1993, FOSD and its contractors conducted a total of 12,878 inspections of vehicle
repair shops, vehicle fleet owners, auto parts stores and parties in the fuel distribution system. As
a result of these inspections and information gathered from other sources, FOSD issued 311 NOVs
representing proposed penalties of $4,297,560. The largest number of NOVs were issued for fuel
violations with 221 NOVs issued and total proposed penalties of $3,666,010. Of these, 210 NOVs
were issued for violations of EPA's volatility regulations with total proposed penalties of
$2313,010, two were issued for violation of the Clean Air Act's substantially similar requirement
with total proposed penalties of $1,308,000, and nine were issued for other fuel violations with
total proposed penalties of $45,000. A total of 90 NOVs were issued for violations of the Clean
Air Act's tampering prohibition with penalties totaling $631,550, Of these, 51 NOVs were issued
for violations of FOSD's aftermarket catalytic converter policy with total proposed penalties of
$287350 and 39 NOVs were issued for other forms of tampering with total proposed penalties of
$343,700.
FOSD settled 220 cases in FY 1993 with cash civil penalties totaling $2,257,585. Additional
payments totaling $93,000 went to alternative payment projects. The largest civil penalty was
generated from the settlement of one outstanding lead phasedown case with a penalty of
$571,000. In addition, consent decrees were entered in five FOSD cases during FY 1993 with
penalties totaling $831,596.
During FY 1993, there was a significant decrease ,in violations with respect to the
installation of aftermarket catalytic converters, as compared to FY 1992. In FY 1992, EPA issued
73 NOVs for violations of FOSD's aftermarket catalytic converter enforcement policy ("AMCC
Policy"). In FY 1993, only 51 NOVs were issued for violations of the AMCC Policy. FOSD
attributes this increase in compliance to its aggressive enforcement program, which includes
investigation of repair shops to determine compliance, the review of aftermarket catalytic
converter warranty cards, the issuance of NOVs, and education of both the public and the
regulated community.
EPA tampering survey data from past years indicates that the need for catalytic converter
replacement is as high as 4% of the national fleet. Because of this substantial need for catalytic
converters, the demand for new aftermarket catalytic converters has steadily increased in recent
years.
Clean Water Act Enforcement - NPDES
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 1992, 90% of all
NPDES SNCs were resolved in a "timely and appropriate " manner.
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^ ^^ Enforcement A ccomplishments Report
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 FY1993
287 facilities were reported on the SNC exceptions list including 40 facilities that were unaddressed
from the previous year and 247 facilities that appeared on the list for the first time during the year.
Of the 287 facilities on the exceptions list, 144 returned to compliance by the end of the year, 87 were
subject to formal enforcement action, and 56 facilities remained to be addressed during the upcoming
year. The number of facilities unaddressed in FY 1993 increased by 10. However, the number of
facilities appearing as SNC decreased by 16% (2362 to 1,978). This resulted in a decrease in T&A from
90% in FY 1992 to 87% in FY 1993. . .
During FY 1993, the regional offices filed 256 administrative penalty orders (APOs). Moreover,
178 final settlements of APOs were filed in FY 1993.
Toxic Substances Control Act Enforcement (TSCA)
Over 125 companies have registered for the TSCA §8(e) Compliance Audit Program, which offers
participating companies the opportunity to voluntarily submit late heath and safety reports from
chemicals. Stipulated penalties averaging $5,000 per late report will be collected. The stipulated
penalties are much less that the statutory maximums that could have been imposed. This program has
been well received by the regulated community an has raised the profile of this important data
reporting requirement, The CAP has generated a large volume of useful health and safety data. To
date, more than 10.000 late reports have been received by the Agency.
B. Regional Office Accomplishments
Region I - Boston
(Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont)
During FY 1993, Region I maintained an active enforcement program and continued to refine its
management of the enforcement process. In the past year, the Region built on its previous efforts to
incorporate a multi-media focus into the enforcement program, advanced an important dialogue with
New England state enforcement officials to better coordinate enforcement efforts, and heightened its
attention to resolving cases promptly and through innovative mechanisms.
Region I's Enforcement Workgroup, which includes representatives of all the Region's media
enforcement programs and the Office of Regional Counsel, continued to play a lead role in developing
and overseeing multi-media enforcement. As in recent years, the Workgroup held a roundtable
discussion early in the year at which each of the programs discussed their inspection and enforcement
plans for the year. During this discussion, opportunities for coordinated and consolidated inspections
were identified and the possibilities for participation in the various regional and national initiatives
were surfaced. The workgroup also took up numerous other important multi-media issues including
refinement of the Region's multi-media inspection checklist, data collection efforts and inspection and
enforcement targeting.
The clearest example of the Region's commitment to a multi-media approach is in the federal
facilities area. In FY 1993, Region I conducted six multi-media inspections at federal facilities in
connection with the February, 1993 national Federal Facilities Multi-media Enforcement/Compliance
Initiative and in furtherance of the Region's federal facilities multi-media inspection program, begun
in 1990. The inspections were conducted by EPA and state inspectors, and resulted in several notices of
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FY1993 Enforcement 'Accomplishments Report
non-compliance (federal or state) and one RCRA administrative enforcement penalty action under the
Federal Facility Compliance Act of 1992. Since 1990, the Region has conducted fifteen federal facility
multi-media inspections.
Also to advance a multi-media approach (and with the endorsement of the Region's leadership
and the Enforcement Workgroup), training was conducted in the spring of 1993 for all of the Region's
field inspectors on a number of important topics. All inspectors attended a course devoted exclusively to
the subject of multi-media inspections at which experts from each of the enforcement programs
discussed the major requirements of their programs so that inspectors would be better able to identify
problems in areas beyond their individual programs. A separate course was held for all the inspectors
which discussed ways in which they could promote pollution prevention during their inspections.
Finally, a course was held for inspectors and others in the Region which covered the litigation process
and was intended to help them understand how the process works and how they would fit in it.
FY 1993 was the first full year of operation of the New England State/EPA Environmental
Enforcement Committee. This committee, which was organized and sponsored by Region I, includes
high level representatives from the enforcement offices of all the state environmental agencies and
from the environmental divisions of the state attorneys general offices in Region I. The Committee
meets approximately once every four months and addresses topics of mutual interest such as the
coordination of enforcement efforts, participation in national initiatives, administrative penalty
programs and training needs.
The Region also worked on a number of fronts to ensure the prompt and successful resolution of its
enforcement cases and to explore the use of innovative settlement tools. A particular emphasis was
placed on the resolution of the older judicial and administrative cases in the Region. Guidance was
developed setting out various tools which could be used by regional staff to move negotiations to a
prompt and successful outcome or, alternatively, to put them on a track towards litigation.
During FY 1993, Region I also worked on several fronts to promote the use of alternative dispute
resolution (ADR) to settle cases and to enhance community involvement in controversial environmental
decisions. These efforts have taken the form of educating regional management and staff about ADR
techniques and their possible applications; educating the private bar about EPA's receptivity to ADR;
representing EPA on an American Arbitration Association task force on environmental mediation;
actively participating in a national workgroup on ADR to share information and ideas with other
regions; and continuing to nominate cases for ADR in a broadening range of circumstances. The success of
these efforts has been evident in increased general inquiries by both EPA case lawyers and members of
the private bar about the appropriateness of mediating specific cases, as well as by the success of the
region's convening efforts in 4 complex superfund cases (Savage Well, Nyanza, Iron Horse Park and Pine
Street), each with a distinct set of challenges. Building on this experience, the Region is currently
working with local, state, and congressional representatives to set up a process, with the assistance of a
neutral facilitator, to address community concerns about the New Bedford Harbor superfund remedy.
Region II - New York
(New Jersey, New York, Puerto Rico, Virgin Islands)
Region II enjoyed a very strong year in virtually all categories of traditional measurement. For
example, the Region's regulatory (non-Superfund) enforcement programs generated over $8.5 million in
penalties, their second highest annual total. This figure included almost $1.6 million in stipulated
penalty collections for violations of earlier judicial consent decrees, a demonstration of the Region's
long-standing commitment to insuring compliance with settlement instruments.
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Enforcement Accomplishments Report
Region H's Superfund enforcement program was again very successful, with enforcement case
resolutions yielding nearly $340 million in value of work to be performed, cost recovery agreements, and
penalties assessed. This is the Region's second highest year in terms of both the value of work secured
from responsible parties ($253.8 million) and penalties assessed ($1.7 million); the $83.3 million in
past costs which were recovered is three times higher than Region's best previous year. :
In the non-CERCLA arena, judicial penalty assessments resulting from settled and adjudicated
cases totaled over $5.2 million in FY 1993, the Region's second highest ever. Penalties proposed in FY
1993 administrative complaints totaled $11.1 million; proposed administrative penalties in four
separate programs exceeded $1 million (EPCRA, RCRA, TSCA and CWA). Administrative penalty
assessments (in settlements and adjudicated decisions) totaled nearly $3.2 million. Total judicial and
administrative penalty assessments were thus about $8.6 million. The value of injunctive relief secured
through Region II non-CERCLA judicial settlements entered in FY 1993 exceeded $12 million.
Supplemental Enforcement Projects (SEPs) were included in more than ten settlements, under the
EPCRA, TSCA, RCRA and CWA programs. The total dollar value of these SEPs was about $1 million.
In FY 1993, Region II had one of its highest annual outputs in the number of referrals to the U.S.
Department of Justice for litigation activities. The Region generated some 60 such civil referrals,
including consent decree enforcement referrals, collection actions, bankruptcy referrals, and pre-referral
negotiation (PRN) packages. Of these, 29 were in the Superfund arena.
During FY 1993, Region II continued to closely monitor the status of compliance among judicial
defendants and administrative Respondents with the terms of settlements and orders. Of the 60
referrals initiated, six were consent decree enforcement referrals and seven were collection actions for
non-payment of penalties. This output demonstrates the importance that Region II assigns to ensuring
compliance by former violators; the Region is persuaded that follow-through of this sort is essential to
the overall success of an enforcement program.
Region II continued its aggressive implementation of the Administrator's goals for multi-media
enforcement. Under the auspices of our Regional Multi-Program Enforcement Steering Committee, major,
consolidated inspections including nearly every Regional program office were carried out at 13
facilities, including three federal facilities. A number of these yielded evidence of violations in one or
more program areas — although the Region states that fewer very serious violations were detected
than in past years.
In addition, Region II has carried out a large number of other consolidated and coordinated multi-
media inspections involving a smaller number of Regional program offices (usually two or three). In
fact, based on the Agency's data, through the third quarter of FY 1993 Region II accounted for 39% of
the nation's consolidated multi-media inspections; over 20% of its coordinated multi-media inspections;
and nearly 88% of single media inspections performed utilizing the multi-media checklist.
In addition to major multi-media enforcement inspections, and the enforcement activities arising
from them, the Region has actively pursued a number of other multi-media initiatives, including
several Regional geographic enforcement initiatives. The Region also pursued geographic initiatives
in the Cortland and Corning Aquifer regions of New York as well as the Niagara Frontier region of New
York.
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FY 1993 Enforcement Accomplishments Report
Region III - Philadelphia
(Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia)
FY 1993 was a milestone year for enforcement in Region HI, Region III had a recordbreaking
enforcement year as measured by enforcement activity numbers with 54 civil referrals, 16 criminal
referrals, 11 PRNs, 237 administrative orders, and 102 administrative complaints. This represents a
35%, 6,6%, and 12% growth over last year's numbers in civil referrals, criminal referrals, and
administrative complaints, respectively. The criminal enforcement program set a new record in FY 1993
for Region III, Furthermore, FY 1993 established a record for the number of civil referrals, when one
excludes FY 1978. (The civil referral numbers for FY 1978 were artificially high because a number of
civil referrals were fragmented into their parts and referred separately). Programs that witnessed
impressive growth in the number of civil referrals over last year's numbers were NPDES and
CAA/Asbestos, which had over a 300% and 500% rate-of-growth, respectively.
In addition to these record breaking numbers, Region HI also embarked on several significant
Special Enforcement Initiatives to focus on specific sites, geographic areas, pollutants, or industrial
sectors with noteworthy environmental or compliance problems. The goal of these initiatives are to
gain maximum deterrence through publicity and facility-specific impact. Continuing its leadership
role. Region III actively developed and pursued regional and national enforcement initiatives in FY
1993.
In FY 1993, Region III embarked on a strategic planning exercise. As a necessary prerequisite for
this project, the Region conducted a detailed study of Region III environmental data. The study's
findings were an important resource in the establishment of the Region's Strategic planning goals. The
goals are Regional Management, Reliance on Data, State Relations, Acid Pollution, and Ozone. They
were targeted because they: require special Region-wide focus to succeed; take advantage of unique
Region III leadership opportunities; have a high potential for risk reduction, and provide a forum for
creative leadership. The goals do not define all of the Region's important work. Instead, they are
areas where the Region feels that it can focus some of its efforts and make important improvements in
addition to pursuing national priorities. Currently, the Region is actively engaged in devising
enforcement strategies and objectives to accomplish these goals and to establish measures to measure
their success.
Headquarters and Region HI have placed increasing importance on the role enforcement should
play in attaining non-traditional enforcement goals, such as protection of human health, preservation
and restoration of ecosystems, and ensuring a high quality of public welfare. These are goals that are
neither media nor program-specific, and to achieve them requires that they be addressed in a holistic
manner. Multi-media enforcement permits addressing the environmental status of a facility in an
integrated fashion which recognizes the interconnected relationship between the media and facility
processes have the potential to be an important tool in this effort. Region III has recognized this and
has placed increased importance on the use of multi-media enforcement as an instrument to achieve its
goals.
Over the past three years, the Region has engaged in numerous multi-media enforcement
initiatives arising from both the Headquarters' level and the Regional level. While there were some
successes, there was the perception in this Region that multi-media enforcement had not yet lived up to
its potential. In trying to maximize its effectiveness, the Region's Senior Managers formed a Quality
Action Team with representatives from the various enforcement programs and offices. After almost a
year of work by the Enforcement Branch Chiefs, the Region finished development and started
implementation of a fully integrated case-screening and multi-media enforcement process in FY 1993.
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FY1993 Enforcement Accomplishments Report
In FY 1993, Region III and its States have made significant efforts to strengthen their enforcement
partnership. This year marked the beginning of an effort between Region HI and its States to
strengthen the Federal/State enforcement relationship. On August 10,1993, representatives from both
the Region III and the State/Local enforcement programs met in Region Ill's Philadelphia office to
discuss enforcement planning for Fiscal Year 1994. While it is common for each of the Regions'
enforcement programs to meet with their State counterparts to discuss their specific program goals, this
meeting marked the first Region III meeting with its States dedicated to cross-program enforcement
issues. This meeting was viewed as a success by all the participants and has lead to the initiation of
biannually State/EPA Enforcement Meetings to build upon the State/EPA partnership.
Region IV - Atlanta
(Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, Tennessee)
Region IV continued to emphasize multi-media enforcement during FY 1993 through two high-
level management teams known as the Enforcement Decision Team (EDT) and the Multi-media
Enforcement Team (MET), and using the expertise of the Enforcement Planning and Analysis Staff (EP
& A). The EDT is chaired by the Assistant Regional Administrator and comprised of Associate and
Deputy Division Directors, the Policy, Planning and Evaluation Branch Chief, and the MET
chairperson. The EDT reports directly to the Deputy Regional Administrator to assist him in setting
multi-media policies and priorities. The MET is chaired by a member of the EDT. and comprised
primarily of Section Chiefs, one from each division, and the Enforcement Planning and Analysis Staff
Chief. The MET reports directly to the EDT and provides support to the EDT by managing and
conducting multi-media inspections and enforcement activities. In FY 1993 Region IV conducted 34
multiTmedia consolidated inspections and initiated three multi-media enforcement cases, including one
civil referral. A multi-media enforcement initiative in Chattanooga has resulted in a clean-up
program under Super!und for Chattanooga Creek.
The EP & A staff supports the RA/DRA's role as principal manager for Region IV's enforcement
programs. The EP &: A staff also supports the EDT and is an active participant in the MET. Activities
include developing policies and agreements, analyzing data to target activities and evaluate results,
providing agenda/work products, coordinating and developing multi-media enforcement activities,
serving as primary multi-media contact with Headquarters and states, and serving as regional
spokesperson at national meetings and conferences on enforcement.
Region IV became the first region to initiate multi-year enforcement agreements with its eight
states to reduce the time and effort expended in negotiating yearly enforcement agreements. The multi-
media agreements cover the period from October 1,1993 through September 30,1996, and document
general enforcement policies, issues and directions regarding enforcement roles, oversight, penalties,
data, training, targeting efforts, enforcement initiatives, and communications. Each media will
address specific items as necessary through MOAs and grant workplans that will continue to be
developed on a yearly basis by each program.
Region IV continued its strong commitment to multi-media activities at federally-owned sites
through its Federal Facilities Coordination (FFC) program. The FFC program conducted two OFFE
federal facilities multi-media compliance inspections at Air Force Plant #6 and Redstone Arsenal, ten
regional federal facilities multi-media inspections, and five Indian tribal multi-media compliance
inspections. The FFC program also held a Regional Multi-media Federal Facilities Environmental
Compliance Conference that was attended by over 300 persons.
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FY 1993 Enforcement Accomplishments Report
C SB *
\,«X
All Region IV divisions participated in the successful first year of the Tampa Bay Enforcement
Initiative, which resulted in 103 inspections, 11 permit reviews, five § 308 letters, 19 NOVs, three AOs,
and one civil referral.
Region IV approved twenty-six Supplemental Environmental Projects (SEPs) in FY 1993. The
projected costs range .from $10,000 to $4,000,000 with the total projected costs exceeding $14.4 million.
Thirteen of the SEPs are classified as pollution prevention projects and account for $6.2 million of the
total projected costs.
Region IV's RCRA program continued to produce high enforcement outputs by issuing 15 new
complaints and settling 25 administrative cases, with penalties in final administrative orders
increasing from $900,000 in FY 1992 to $2,446,000 in FY 1993. Emphasis was placed on settling older
cases. Final Consent Decrees were entered for Sanders Lead with a penalty of $2 million and for
Grumman with a penalty of $2.5 million which included a $1 million pollution prevention project.
Region IV referred two new judicial cases to Headquarters in FY 1993.
In FY 1993, Region IV accounted for approximately 20 per cent of all Superfund removal starts
nationally, including a solid 25 per cent of all EPA funded clean-ups. Region IV obligated nearly $24
million in clean-up monies to contractors. Major projects completed in FY 1993 included ILCO, Aqua-
Tech, Basket Creek, Cherokee Oil, and Escambia Wood (Pensacola).
Enforcement actions under the NPDES program included eight civil referrals, 54 Administrative
Penalty Orders (APOs) and 117 Administrative Orders (AOs), all of which exceeded FY 1992 totals.
For FY 1993 six judicial consent decrees were signed with cash penalties totaling $4.4 million. The
largest one of these, CSXT, contained $3.0 million in cash penalties and $4,1 million in Supplemental
Environmental Projects (SEPs). NPDES settled 30 APOs for a total of $569,000, with an additional $5.6
million in SEPs being agreed to in APO settlements. Region IV became the first region to take an
NPDES civil judicial action under the emergency powers authority granted in § 504 of the Clean Water
Act with its action against Dade County, Florida.
Region IV's UIC program met or exceeded all their workplan goals for FY 1993. The program
completed nine AOs and referred two civil and three criminal cases to DOJ. Region P/ continued to lead
the nation in UIC enforcement activity throughout FY 1993.
Region IV's UST program participated in many of Region Ws multi-media activities for FY 1993,
one of which was the first civil referral case in the nation taken against a company for UST release
detection violations. In FY 1993 Region IV also took its first administrative action against a hazardous
substance tank owner for failure to comply with UST release detection requirements.
Under the Clean Air Act, Region IV filed 14 APOs with total penalty amounts of $658,790 under
Section 113(d), which represents a 400% increase in use of this enforcement tool over the initial year of
availability, FY 1992, and an increase of 289% in the amount of penalties sought. Three civil referrals
were issued in FY 1993 with penalties totaling $2,492,840. In conjunction with ORC and Headquarters,
Region IV settled 12 outstanding cases for $4,799,000, including the following; Crown Cork and Seal,
$343,000; Louisiana Pacific, Clayton, Alabama and Commerce, Georgia; and Olin Corporation,
$1,000,000. Region IV issued the first immediate compliance AO under § 113(d)(3) to require the
removal of asbestos containing material (ACM). This precedent setting order was issued at the
uncontrolled release of ACM at Louisville Forge and Gear.
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^i" J993 Enforcement Accomplishments Report
Region V - Chicago
(Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin)
In FY 1993, Region V achieved a record number (98) and record national share of judicial consent
decrees and orders after trial. This compares to 54 judicial consent decrees and orders for FY 1992.
Highlighting the Region's success was a precedential, multi-media consent decree with Inland Steel,
which included a $55 million package ($26.5 million for supplemental environmental'projects, $25
•million in injunctive relief, and $3.5 million in civil penalties). Other highlights include a $6 million
penalty judgment after trial against Bethlehem Steel, located in Burns Harbor, Indiana, and the entry
of a CWA §309 Order requiring Wayne County, Michigan, to implement plans for a sewer collection
system a cost of over $180 million dollars.
Last year. The Geographic Initiative process reached a certain level of maturity. The Region
currently is operating five initiative areas: Gateway (East St. Louis, IL), Tri-State (Ironton, OH area),
SEMI (Detroit, MI area), Northwest Indiana, and Southeast Chicago. During the year, the Northwest
Indiana/Southeast Chicago Geographic Initiative area was split into two separately functioning units
along the state line. The reason for this division was to make each of the initiatives more manageable
since the work being done in the area had grown quite substantially in the years since the creation of
the original Region V geographic enforcement initiative area.
Another positive development of the geographic initiatives was the expansion of interaction
with state and local governments and local community groups. For example, toward the end of the year
the Region and the State of Indiana took steps to move from periodic meetings held to describe actions
that have been taken, to much more frequent, specific and detailed meetings to jointly plan, conduct and
coordinate enforcement actions according to a comprehensive enforcement action plan. Another example
is the creation of the position of Enforcement Ombudsman to work with local community groups in the
Southeast Chicago area.
During FY 1993, multi-media enforcement became less of an experiment and more of a standard
and very useful tool in the Region V enforcement arsenal. The creation one year ago of the Multi-Media
Branch in the Office of Regional Counsel has significantly helped the coordination of such enforcement
strategies and actions. During the year, a number of important multi-media actions were concluded and
others initiated. These specific cases, such as Inland Steel, are described in detail previously in this
report. The cross divisional Multi-Media Litigation Screening Committee met on a monthly basis
throughout the year and coordinated the development of the multi-media enforcement actions. In
addition, a list of 23 facilities in priority order were targeted for multi-media inspection during FY
1994. All of these facilities are located in the five geographic initiative areas. It is most unlikely
that resources will allow for all of these inspections to be conducted, but it is a good sign of the general
acceptance of the value of the multi-media approach that this many actions would be selected.
Region V's wetlands program was very successful in FY 1993, The first criminal indictment for a
wetland violation in Region V was handed down by a grand jury in June 1993. In addition, through the
permit process and Superfund coordination, thousands of acres of mitigation were proposed in an
attempt to comply with the zero net loss of wetland objective.
Region V continued to encourage innovative forms of relief in negotiating settlements. In FY 1993,
the Region used Supplemental Environmental Projects (SEPs) in settlement of 52 cases. The total value
for fiscal year 1993 SEPs was nearly 15 times greater than the value of FY 1992 SEPs, reaching
approximately $42 million dollars. Many of the SEPs focused on pollution prevention, responding to
EPA's increasing concern with fighting pollution at its source.
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FY1993 Enforcement Accomplishments Report
Region V participated in all of the National Enforcement Initiatives organized by the Office of
Compliance Monitoring in OPPTS. In two of the three TSCA enforcement initiatives, and in the EPCRA
Section §313 enforcement initiative, Region V lead all other EPA regions in the number of complaints
issued and in the total proposed penalties.
During FY 1993, the Region continued high levels of activity in the Boiler Industrial Furnace
(BIF) Initiative. EPA conducted inspections at over twenty BIF facilities which had become subject to
the new hazardous waste combustion regulations promulgated in August of 1991. The Region's efforts
culminated in ten administrative enforcement actions being filed as part of EPA's highly successful
Combustion Initiative.. Total penalties sought in these actions amounted to over $8 million.
The RCRA Illegal Operators Initiative got underway this year. This Initiative is a cooperative
effort between EPA Headquarters, EPA Regional Offices and State Environmental Agencies, As part of
this effort, States focused their inspection activities towards identifying entities engaged in the
illegal storage or disposal of hazardous wastes. Judicial, administrative and criminal enforcement
cases seeking injunctive relief and monetary penalties were filed to address the violations detected as
part of these inspections. Most of the cases, filed as part of the Initiative in June and July of 1993, are in
preliminary stages of litigation or negotiation.
Finally, Region Vs criminal enforcement program had a record year. The number of referrals (28),
indictments (15) and defendants charged (24) exceeded any previous year's totals.
Region VI - Dallas
(Arkansas, Louisiana, New Mexico, Oklahoma, Texas)
Region VI maintained an active enforcement program in FY 1993. The RCRA program had an
exceptional year in 1993 by commencing 33 new enforcement actions with total proposed penalties of
over $12 million. Final orders were issued for 12 cases. In addition, four enforcement corrective action
orders were finalized and two imminent and substantial endangerment orders were issued, including the
first such order nationwide to a federal facility. The Region also commenced two of the first
administrative penalty cases against federal facilities under the authority given in the Federal
Facility Compliance Act. Regional RCRA enforcement initiatives included commencing eight
enforcement actions against boilers and industrial furnaces, four enforcement actions against facilities in
the area of the U.S./Mexico Border, and two enforcement actions against foundries.
Another Region VI RCRA enforcement initiative involved the improper handling of shipments of
hazardous waste into the United States. A binational Hazardous Waste Tracking System (HWTS) has
been developed by EPA RegionVI and the Mexican government to verify compliance with U.S. and
Mexican laws of transboundary shipments of hazardous waste. The HWTS is capable of merging and
comparing Mexican hazardous waste shipment data with U.S. manifests to confirm movement of
hazardous waste from maquiladoras in Mexico to treatment, storage and disposal (TSD) facilities or
recycling facilities in the United States. The system tracks volumes of wastes, waste types, foreign
generator, and ultimate disposition of the waste. Discrepancy reports generated by the HWTS
identified U.S. import violations which resulted in three Administrative Complaints. This initiative
has received considerable positive national media coverage (e.g. Wall Street Journal and Journal of
Commerce).
During this fiscal year, the Region VI Office of Underground Storage Tanks (OUST) was very
active in assisting other Regions in developing and implementing the federal field citation program.
OUST provided assistance to RegionVI in their federal field citation program by providing on-the-job
6-13
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^ ^^ Enforcement Accomplishments Report
training for State UST inspectors in Arizona and California, and conducted classroom training for
California UST State/County/Local regulators at the University of California. Because of OUSTs
field initiative, all but two Regions have now begun to implement their own federal field citation
program. The field citation program developed and implemented by Region VI OUST continues to be an
effective and efficient enforcement tool. Joint EPA/State inspections, using field citations, were
conducted in Texas, Arkansas and Louisiana. During FY1993,50 inspections were conducted and 38 field
citations were issued. Total penalties collected were $17,850 (field citation penalties ranged from $50-
$1,500 per facility).
The New Mexico Environment Department (NMED) will be acting as EPA's oversight
representative during the Remedial Investigation and Feasibility Study (RI/FS) at the Atchison,
Topeka, and Santa Fe (Albuquerque) Superfund Site. Over the past several years, NMED has been
overseeing the Responsible Party's activities at the site and has provided comments to the Responsible
Party throughout the initial stages of the investigation. In order to reduce the possibility of
duplication of efforts and, more importantly, to provide the state with an opportunity to build its
Superfund capability, EPA has requested NMED act as EPA's oversight representative during the Rl/FS
and perform the human health and ecological risk assessments. NMED will be conducting the human
health and ecological risk assessments in-house.
On May 14, 1993, EPA issued a Unilateral Administrative Order under the Comprehensive
Environmental Response, Compensation, and Liability Act to ARCO and El Paso Natural Gas (EPNG)
for the performance of the remedial design and remedial action for the Prewitt Abandoned Refinery
Superfund Site in New Mexico. As a result of unresolved differences between ARCO and EPNG, and in
order for both parties to continue to be in compliance with the Administrative Order, both parties took
it upon themselves to submit separate work plans for the performance of the remedial design (RD).
Thus, EPA, the New Mexico Environment Department (NMED) and the Navajo Nation Superfund
Program (NSP) have been conducting dual reviews of the RD work plans. As during the remedial
investigation and feasibility study and the record of decision writing process, both NMED and NSP
have provided technical support to EPA during the RD work plan review. Both NMED and NSP have
cooperated with EPA in providing comments on all of the revisions and have been willing to participate
in conference calls and meetings when their assistance was needed.
The Clean Water Act National Pollutant Discharge Elimination System (NPDES) enforcement
program was very successful in FY 1993. The commencement of 81 administrative penalty actions
represented approximately one-third of the national total, and the issuance of 735 administrative
orders (non-penalty) represented over one-half of all such orders issued by EPA nationwide. The Region
was also very successful in resolving judicial and administrative penalty cases, resulting in the
payment of over $4.6 million in civil penalties.
The NPDES program was also successful in maintaining the integrity of the self-reporting
program and in protecting water quality. Specifically, the Region participated in a national initiative
to ensure accurate reporting and analysis, by initiating enforcement actions for failure to submit accurate
discharge monitoring reports, for failure to properly collect and analyze wastewater samples, and for
failure to re-apply for NPDES permits in a timely manner.
To address water quality concerns, the Region laid the groundwork for future enforcement actions
by identifying facilities with serious sanitary sewer overflows and bypasses. A number of enforcement
actions were commenced to eliminate raw sewage overflows from sanitary sewers.
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FY1993 Enforcement Accomplishments Report
Region VII - Kansas City
(Iowa, Kansas, Missouri, Nebraska)
Region VII emphasized its Multi-Media Enforcement Committee as the focus of its enforcement
targeting and coordination efforts, for case selection for reducing risk and implementing enforcement
initiatives and the Administrator's priorities. The Region targeted three multi-media inspection
candidates using TRI data, compliance histories, and geographic location. All three have resulted in
referrals for enforcement. Multi-media enforcement cases are most successfully developed from initial
targeting for multi-media inspections in a small Region like Region VII.
The Region's efforts and emphasis on state enforcement activities continued in FY 1993. However,
the severe flooding in the Midwest resulted in lower numbers of state cases than in prior years.
Nonetheless, Region VII states completed a number of cases and began utilizing press releases to
announce the successful conclusion to case filings. The Office of Regional Counsel has done significant
outreach to publicize the pollution prevention/supplemental environmental projects alternative to a
portion of the assessed penalty. Region VII states are beginning to accept alternative environmental
projects to offset a portion of the penalties.
Region VII is committed to maintaining a strong federal/state enforcement program. Recognizing
that most of the programs which can be delegated to the states have been in the region, they have
invested time and resources in helping their states develop and utilize their enforcement capacity. The
result of this effort has been an improved relationship between EPA and the states, and better
leveraging of the increasingly scarce state and federal resources.
Region VIII - Denver
(Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming)
In FY 1993, Region VIII referred 23 cases to the Department of Justice and took 308 administrative
actions. Activities in FY 1993 were somewhat lower than FY 1992. FY 1993 numbers appear lower in
comparison to FY 1992 because FY 1992 activities were higher than is the norm for most programs.
Other reasons for the somewhat lower numbers were program specific. For example, in the HFRA
program the delayed revision of a required form caused the lowered numbers. The UST program
decrease was due to states receiving increased authority. In other cases, programs with administrative
authority equal to their civil authority chose to use the former.
The Region VIII Multi-Media Program continued to grow, gain momentum, and become
institutionalized. This year, the Regional Enforcement Officer (REO) also acted as the Multi-media
Enforcement Branch Chief of ESD and worked directly with the multi-media inspection teams. The
Region participated in eight targeted multi-media inspections and focused on including states in the
site selection and inspection process. Additionally, in FY 1993, the Region developed increased
environmental justice capacity by including census data evaluation and the three "lifestyle clusters"
suggested by the Office of Enforcement (OE) into both targeting and screening activities.
In the early stages of its existence, the Enforcement Standing Committee (ESC) addressed both
enforcement policy and management and facility or case-specific matters. As the Region began to
institute the multi-media approach and the number of multi-media actions increased, the Region
realized that a mechanism was needed to discuss and manage facility or case-specific issues. Thus the
Regional Enforcement Forum (REF) was created to deal with facility and case-specific enforcement
related activities (see above). The creation of the REF has left the ESC as the Regional body
responsible for discussing and addressing Regional enforcement policy.
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FY1993 Enforcement Accomplishments Report
The Regional Enforcement Forum serves as the primary mechanism for regularly needed cross-
program and region-wide enforcement communications and coordination. The REF serves as a standing
committee representing all enforcement programs and coordinates the review and implementation of
regional, cross-program and multi-media inspection and enforcement activities including inspection
coordination and review of selected enforcement actions. It is the REF that evaluates cases, forms
multi-media teams and develops initial strategies and directions for these. It is the REF that works at
the nuts-and-bolts level of multi-media case work. For example, the REF determines whether or not an
activity should be addressed regionally and, if so, what program division is the lead. The REF
prioritizes targeted and untargeted multi-media inspections and establishes multi-media inspection
teams. Another important function of the REF is to resolve case of inspection specific conflicts and,
where appropriate, elevating all unresolved conflicts to the ESC. The REF also recommends decisions
regarding inspections and enforcement policies & operations to the ESC.
During FY 1993, the Region improved its multi-media inspection targeting process by adding new
factors to the "base" process. The base process included all facilities having RCRA IDs and reporting to
Toxics Release Inventory (TRI), all federal facilities permitted in at least two different media, and
NEICs CCRIP report-facilities listed are added to above list if not already there. Throughout the
process state and program input/feedback on lists (20 facilities per state). IDEA analysis on each site -
scores are determined for each site by considering compliance history, multi-media potential, status of
facility on NPL, FY 1993 National/Regional/State initiatives (e.g., Environmental Justice, NPDES
heap-leach mining sites, RCRA non-notifiers, pulp & paper facilities, ND tribal lands initiatives,
etc.) for the coming year. Scores from above factors lead to list of top five facilities in each state;
consensus is then reached between the Region and each State to do two multi-media inspections in the
next fiscal year in each state. Prior to the inspections, the objective of each multi-media inspection is
discussed and agreed upon with each state.
Originating the multi-media concept, the Sand Creek Pilot Project was designed to
institutionalize the holistic approach to compliance and enforcement into environmental protection.
Region VIII, the Colorado Department of Health, and the Tri-County Health Department
participated jointly in the Pilot Project. Targeted inspections at two large facilities in the area
resulted in coordinated multi-media State and EPA enforcement actions to address seepage into Sand
Creek. Following compliance inspections, using data and information gathered during the Project, the
three agencies hosted a series of pollution prevention workshops for companies in the area. These
workshops, consisting of three different half-day pollution prevention workshops, were designed
around the types of violations found in the area as well as the primary types of industry.
During FY 1993, Region VIII has incorporated environmental equity activities into the following
Regional processes: Building an Environmental Equity Database, Targeting Multi-Media Inspections,
and Case Screening. Future environmental equity accomplishments include developing a user-friendly
equity database that can be used by everyone with a connection to the LAN, so that equity factors can be
used in everyone's daily work processes.
Region Vin has had success in integrating pollution prevention into enforcement. Some of the
activities include: Nephi Rubber Products, Huish Detergent, Denver Metal Finishing Company, City of
Rock Springs, the Trona Mine Initiative, and projects such as the Sand Creek Pilot Project and Wyoming
Outreach. The unique aspect of the Nephi Rubber Products case is that a pollution prevention pilot
project has been proposed and has been agreed upon by the facility, the EPA Regional office, and the
State agency. Huish Detergent, Salt Lake City, Utah, which was required to put in a safety chlorine
cleaning system which would clean any spills and set up an isolation system. Denver Metal Finishing
Company, Denver, Colorado, which was installed a sand filter for use in their production process.
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**
FY1993 Enforcement Accomplishments Report
*>i •**•*'
Eegion VIII continues to be a leader in developing tribal capacity. For example, the FIFRA
program supported efforts conducted/hosted two training sessions: National Tribal Workshop and
Advanced Inspector Training (states/tribes). Also two tribal inspectors were also brought into the
Regional Office for one-on-one training by regional staff. The Oglala Sioux (Pine Ridge) Tribal
Enforcement Program submitted a draft Revised Pesticide Code and Certification Plan to Region VIII
for approval. This Code and Plan are now being reviewed by Regional and Headquarters staff. Also
the Cheyenne River Sioux Enforcement Program received approval for an Endangered Species Protection
Program, the first Tribal Program in Region VIII to.conduct endangered species protection activities.
Additionally, during FY 1993 the Region reviewed a program assumption proposal for the CWA § 404
program submitted by the Confederated Salish and Kooteriai Tribes of the Flathead Reservation in
Montana.
The Region also continues to develop state capacity. For example, the Underground Infection
Control (SDWA/UIC) program has an annual meeting between all the States, interested Tribes and EPA
in which information/technical exchange occurs regarding better/different ways to implement the
program. In FY 1993 the Region provided grant funds for over $1 million in State program development
efforts and related wetlands activities. To standardize the Region's approach to the RCRA program
oversight of State enforcement programs, EPA negotiated, created and will now implement the
Appropriate State Oversight Program (ASOP) with its States, the ASOP effort emphasizes a base
line & differential (incremental) approach to oversight in order to focus on states where program
enhancement is needed as well as disinvest where it is not. In the RCRA program, states are encouraged
to participate in RCRA enforcement cases as a partner. In some cases, EPA RCRA turns significant
actions over to the States for capacity and partnership building experiences. For example, in the State
of Utah, EPA allowed the State laboratory personnel conduct a RCRA Lab audit at Nephi Rubber for
the purposes of identifying compliance concerns and pollution prevention opportunities.
Region IX - San Francisco
(Arizona, California, Hawaii, Nevada, Trust Territories )
Region IX's enforcement accomplishments during FY 1993 were highlighted by multi-media
compliance activities, implementation of a field citation program, continuing success with significant
settlements and criminal prosecutions.
The Region's multi-media compliance effort focused on Federal Facilities, areas of geographical
significance and petroleum refineries. The majority of the Federal Facility activity was conducted in
cooperation with the State of California. The geographical focus was provided by the San Francisco
Bay Delta as a priority estuary as well as Santa Monica Bay. The refinery interest, intersects the
geographic focus and was performed in cooperation with state and local environmental agencies.
The Underground Storage Tank field citation program was initiated in Region IX during FY 1993.
This approach enables inspectors to issue citations and gain signed consent agreement- final orders with
an efficient expenditure of resources. The inducement to the facility is a lower penalty than might be
the result if a formal CC/CAFO process was pursued subsequent to the inspection. These on-the-spot
citations are issued for clear cut violations that are easily identified at the time of the inspection.
Begun during the fourth quarter, results are positive. Of 28 inspections conducted, 24 citations with
penalties were issued and 21 were settled before the quarter's end. Penalties ranged from $50 to $800
with an average between$30Q to $400, The citations have achieved expedited compliance from the
regulated community, with efficient enforcement resource use.
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FY1993 Enforcement Accomplishments Report
In U.S.v. Mobil Oil Corporation. (E.D. Cal) a consent decree was entered on February 4, 1993.
Under the decree Mobil will pay a civil penalty of $950,000 for violations of the Clean Air Act. The
complaint alleged that Mobil's polystyrene foam manufacturing facility emitted more isopentane, a
volatile organic compound that is a precursor to ground level ozone pollution, than was permitted by
the applicable State Implementation Plan. The fine is the second largest penalty levied by EPA for
Clean Air Act violations in California,
Region IX continues to aggressively enforce pretreatment requirements. In U.S. v McDonnell
Douglas Corp (C.D. Cal) a consent decree was entered on September 17,1993 in which the company
agreed to pay $505,000 in settlement of the action brought to address violations at its aerospace
manufacturing facility in Huntington Beach, California. The company discharged approximately 7,000
gallons of metal finishing waste from its printed circuit board manufacturing operations in violations of
the pretreatment standards. The wastewater was discharged to the County Sanitation Districts of
Orange County wastewater system.
Region X - Seattle
(Alaska, Idaho, Oregon, Washington)
In FY 1993, Region X undertook a comprehensive look inward at the enforcement processes and
outcomes currently associated with their enforcement/compliance activities. This activity is on-going
and will help shape enforcement and compliance activities in the future.
Continuing its effort to build an integrated multi-media enforcement program, in FY 1993 Region X
emphasized the refinement of its risk-driven targeting process. A Targeting Workgroup was set up to
create a systematic targeting procedure which will be used and improved upon, based on this year's
success, in future years to ensure a list of multi-media inspection sites which meets the criteria that it
be risk-based, consider regional and national enforcement initiatives, and incorporate program
priorities and best professional judgment of state and EPA inspectors. Integrating information from
several databases was a key element of the process. The Workgroup was aided by a facilitator in
developing its targeting protocol.
Consistent with improving its targeting procedures, Region X refined and emphasized its multi-
media program by performing ten coordinated multi-media inspections in FY 1993. Setting new
precedent in State/EPA cooperation and partnership opportunities, was the cross-media inspection at
the FMC Corporation in Pocatello, Idaho. This inspection involved ten media programs, and was
performed by inspectors from EPA Region X in Seattle and Operations Office in Boise, Idaho, EPA
National Enforcement Investigation Center (NEIC), State of Idaho Department of Environmental
Quality (DEQ), and inspectors from the Shoshone Bannock tribe. In addition, Region X was a full
participant in the National Federal Facilities Multi-Media Enforcement Initiative, and performed
multi-media inspections at the Puget Sound Naval Shipyard at Bremerton, Washington, and Ft.
Richardson Army Base at Ft. Richardson, Alaska.
In FY 1993, Region X continued its active program for innovative enforcement settlements,
emphasizing Pollution Reduction, Pollution Prevention, Waste Minimization and Environmental
Restoration Supplemental Environmental Projects (SEPs). In FY 1993 Region X had a total of 20 SEPS,
mostly in TSCA and EPCRA cases, and will continue to do more. Region X's FY 1993 SEPs also included
five administrative Clean Air Act Cases that will result in a significant reduction of particulate
emissions. Of particular note in Region X are the settlements in two judicial cases involving the Oil
Pollution Act. These cases were settled for approximately $970,000 and included the company's
commitment to install and operate state of the art oil spill prevention and leak detection programs at
an estimated cost of $1,600,000.
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FY1993 Enforcement Accomplishments Report
Region X Water Division has pioneered the watershed approach in environmental protection.
This approach is built on three main principles. First, target watersheds should be those where
pollution poses the greatest risk to human health, ecological resources, desirable uses of the water, or a
combination of these. Second, all parties with a stake in the specific local situation should participate
in the analysis of problems and the creation of solutions. Third, the actions undertaken should draw on
the full range of methods and tools available, integrating them into a coordinated, multiorganization
attack on the problems. Using these criteria, the National Pollution Discharge Elimination System
(MPDES) Compliance Program conducted inspections in priority watersheds, clustered enforcement
actions, and offered technical assistance/outreach in priority areas.
In March 1993, eight EPA and four state inspectors inspected 33 concentrated animal feeding
operations (CAFOs) in the mid-Snake River area of south-central Idaho. These inspections were
planned to occur during the snow-melt and rainfall period of early spring. From these inspections
twelve administrative penalty complaints were issued in mid-June. These cases were part of a regional
enforcement initiative in which dischargers to this water quality limited waterbody were targeted.
Suspension and Debarment are administrative processes which exist for the protection of the
Government in its business dealings. Even though Suspension and Debarment are not traditionally
viewed as enforcement tools, they provide an important adjunct to EPA's regulatory programs by
creating incentives for compliance with EPA's civil and criminal environmental laws.
In FY 1993 the EPA Office of Grants and Debarment placed the position of Northwest District
Debarment Counsel in Region X. This position covers both Region X and Region VIII, and currently
maintains an open caseload of over 125 cases. In FY 1993, formal notices of suspension and/or proposed
debarment were issued in 21 cases, and formal settlements or closures occurred in 13 cases. Region X
emphasizes the use of suspension and debarment in order to protect the public's interest in the integrity
of EPA contracting and assistance benefits programs.
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•,.,,, •
FY1993 Enforcement Accomplishments Report
Appendix
Historical Enforcement Data
List of Penalties by Media
List of Headquarters Enforcement Contacts
List of Regional Enforcement Information Contacts
-------
EPA CIVIL REFERRALS TO THE DEPARTMENT OF JUSTICE
FY1972 TO FY1993
AIR
WATER
SUPERFUND
RCRA
TOXICS/PESTICIDES
TOTALS
AIR
WATER
SUPERFUND
RCRA
TOXICS/PESTICIDES
TOTALS
FY72
0
1
0
0
0
1
FY83
69
56
28
5
7
165
FY73
4
0
0
0
0
4
FY84
82
95
41
19
14
251
FY74
3
0
0
0
0
3
FY85
116
93
35
13
19
276
FY75
. 5
20
0
0
0
25
FY86
115
119
41
43
24
342
FY76
15
67
0
0
0
82
FY87
122
92
54
23
13
304
FY77
50
93
0
0
0
143
FY88
86
123
114
29
20
372
FY78
123
137
2
0
0
262
FY89
92
94
153
16
9
364
FY79
149
81
•5
4
3
242
FY90
102
87
157
18
11
375
FY80
100
56
10
43
1
210
FY91
86
94
164
34
15
393
FY81
66
37
2
12
1
118
FY92
92
77
137
40
15
361
FY82
36
45
20
9
2
112
FY93
80
84
129
30
15
338
8-
1
I
-------
EPA ADMINISTRATIVE ACTIONS INITIATED (BY ACT)
FY1972 TO FY1993
CAA
CWA/SDWA
RCRA
CERCLA
FIFRA
TSCA
TOTALS
CAA
CWA/ SDWA
RCRA
CERCLA
FIFRA
TSCA
EPCRA
TOTALS
FY72
0
0
0
0
860
0
860
FY83
41
781
436
0
296
294
1848
FY73
0
0
0
0
1274
0
1274
FY84
141
1644
554
137
272
376
3124
FY74
0
0
0
0
1387
0
1387,
FY85
122
1031
327
160
236
733
2609
FY75
0
738
0
0
1614
0
2352
FY86
143
990
235
139
338
781
2626
FY76
210
915
0
0
2488
0
3613
FY87
191
1214
243
135
360
1051
3194
FY77
297
1128
0
0
1219
0
2644
FY88
224
1345
309
224
376
607
3085
FY78
129
730
0
0
762
1
1622
FY89
336
2146
453
220
443
538
4136
FY79
404
506
0
0
253
22
1185
FY90
249
1780
366
270
402
531
206
3804
FY80
86
569
0
0
176
70
901
FY91
214
2177
364
269
300
422
179
3925
FY81
112
562
159
0
154
120
1107
FY92
354
1977
291
245
311
355
134
3667
FY82
21
329
237
0
176
101
864
FY93
279
2216
282
260
233
319
219
3808
1
-------
EPA CRIMINAL ENFORCEMENT
FY1982 TO FY1993
Referrals to DOJ
Cases successfully prosecute'
Defendants charged .
Defendants convicted
o Months sentenced
o Months served . „„": ..
• o Months probation
FY82
20
7 ;
14/
11
FY83
26
12
34
28
534
FX84
31
14
36
26
6
6
552
FY85
40
15
40 .
40
78
-44.
882,
FY86
41
26
.98
66
279
• -203
828
FY87
41
27
66
58
456
100
1,410
FY88
59
24
97"
50
278
^185 '
1,284.
FY89
60
43
.'> 95
72
325
- 208
1,045
FY90
65
32
100
55
745
222
1,176
FY91
81
48
104
82
963
610 .
1,713
FY92
^107
61
,,150
99
1,135
744
2,478
FY93
140
76
161
135
892
876
3,240
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STATE ENVIRONMENTAL AGENCIES
JUDICIAL REFERRALS AND ADMINISTRATIVE ACTIONS
FY1986 TO FY1993
ADMINISTRATIVE ACTIONS
FIFRA
WATER
AIR
RCRA
TOTAL
FY86
6,055
2327
760
519
10,161
FY87
5,922
1,663
907
613
9,105
FY88
5,078
2^87
655
743
9363
FY89
6,698
3,100
1,139
1,189
12,126
FY90
4,145
3,298
U12
1350
10,105
FY91
3,245
3,180
1,687
1,495
9,607
FY92
3,095
2,748
1,411
1389
8,643
FY93
4,172
3,960
2,005
1,744
11381
JUDICIAL REFERRALS
WATER
AIR
RCRA
TOTAL
FY86
221
162
25
408
FY87
286
351
86
723
FY88
687
171
46
904
FY89
489
96
129
714
FY90
429
156
64
649
FY91
297
190
57
544
FY92
204
258
112
574
FY93
383
174
133
690
c
1
ft!
1
I
§
Prior to FY 1990, the State HFRA Administrative Action total included warning letters.
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FY1993 Enforcement Accomplishments Report
Total Amount of Civil Tudicial and Administrative Penalties in FY 1993
Clean Water Act
Judicial
Administrative
Safe Drinking Water Act
Judicial
Administrative
Stationary Source Air
Judicial
Administrative
Mobile Source Air
Judicial
Administrative
RCRA
Judicial
Administrative
EPCRA § 304-312 - Administrative
CHRCLA § 103 - Administrative
CERCLA § 104,106,107
Judicial
Administrative
Toxics Release Inventory - Administrative
TSCA - Administrative
FIFRA - Administrative
Total dollars
$ 27,834,375
23,169,948
4,664,427
$ 5,567,203
5,398,500
168,703
$ 20384,422
18384,422
2,000,000
$ 2^28,785
850,596
1,678,189
$ 22,766,695
14,211,000
8355,695
$ 1,128,560
$ 489,272
$ 24352324
23,899,052
453,272
$ 2,556,507
$ 6,892,697
$ 632,574
TOTAL
$ 115,133,414
* Clean Water Act includes Sections 311 and 404.
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FF1993 Enforcement Accomplishments Report
U.S. Environmental Protection Agency Regional Offices
Enforcement Information Contacts
Region I - Boston
Connecticut, Maine, Massachussetts,
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 - One Congress Street
Boston, MA 02203
617-565-2713
External Programs Division
Jacob K. Javitz Federal Building
26 Federal Plaza
New York, NY 10278
212-264-2515
Office of External Affairs
841 Chestnut Building
Philadelphia, PA 19107
215-597-6938
Office of Public Affairs
345 Courtland Street, N.E.
Atlanta, GA 30365
404-347-3004
Office of Public Affairs
77 West Jackson Boulevard
Chicago, IL 60604-3507
312-353-2072
Office of External Affairs
First Interstate Bank Tower at Fountain Place
1445 Ross Ave. 12th Floor Suite 1200
Dallas TX 75202-2733
214-655-2200
Office of Public Affairs
726 Minnesota Avenue
Kansas City, KS 66101
913-551-7003
Office of External Affairs
999 18th Street Suite 500
Denver, CO 80202-2405
303-294-1120
Office of External Affairs
75 Hawthorne Street
San Francisco, CA 94105
415-744-1585
Public Information Center
1200 Sixth Avenue
Seattle, WA 98101
206-553-1465
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FY1993 Enforcement Accomplishments Report
EPA Headquarters Enforcement Offices
Office of Enforcement (OE)
Assistant Administrator
Deputy Assistant Administrator
Director of Civil Enforcement
Air Enforcement Division
Water Enforcement Division
Superfund Enforcement Division
RCRA Enforcement Division
Pesticides and Toxic Substances Enforcement Division
International Enforcement Program
Office of Criminal Enforcement
Office of Compliance Analysis and Program Operations (OCAPO)
Office of Federal Activities (OEA)
Office of Federal Facilities Enforcement (OFFE)
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 Groundwater and 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 Prevention, Pesticides and Toxic Substances (OPPTS)
Office of Compliance Monitoring (OCM)
202-260-5145
202-260-4137
202-260-4540
202-260-2820
202-260-8180
202-260-3050
202-260-4326
202-260-8690
202-260-2879
202-260-5439
202-260-4140
202-260-5053
202-260-9801
303-236-5100
703-308-8600
202-233-9000
202-233-9240
202-260-8304
202-260-5522
202-260-7166
703-603-8900
202-260-4808
202-260-3807
•us, on
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