.»
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FY1988 Enforcement Accomplishments Report
The FY1988 Enforcement Accomplishments Report was .prepared by the
Compliance Evaluation Branch within the Office of Enforcement and
Compliance Monitoring. Information contained in the report was supplied by
the EPA Regional Offices and Headquarters program offices. The following
persons participated in the writing, editing, and production of this report: Rick
Duffy, Bill Watt, Robert Banks, Eloise Furbush, Merle Miller, and Joyce
Johnson.
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FY1988 Enforcement Accomplishments Report (SB*
:__ • - ' - • - ~"' - \^.^ff
TABLE OF CONTENTS
SUBTECT PAGE
I. ENVIRONMENTAL ENFORCEMENT ACTIVITY 1
This section provides information on FY1988 levels of Federal
civil and criminal judicial case referrals,, administrative actions.
Federal penalty assessments, and State enforcement activity.
•H. MAJOR ENFORCEMENT LITIGATION AND
KBY LEGAL PRECEDENTS • 6
An alphabetized summary of important civil and criminal
judicial case settlements, administrative actions, and key court
decisions on points of law that occurred during the year.
HI. BUILDING AND MAINTAINING A STRONG
NATIONAL ENFORCEMENT PROGRAM 21
Summaries of major enforcement program strategies, initiatives,
guidance, and management studies.
IV. MEDIA SPECIFIC ENFORCEMENT PERFORMANCE;
RESOLVING SIGNIFICANT NONCQMPLIANCE 31
Contains brief summaries of the Strategic Planning and
Management System definitions of Significant Noncompliance
and highlights of recent program performance,
APPENDIX: ENFORCEMENT DATA
Contains historical enforcement data on Federal and State ,
enforcement activities. • "
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FY1988 Enforcement Accomplishments Report
I. ENVIRONMENTAL ENFORCEMENT ACTIVITY
Federal Judicial and Administrative Enforcement Activity
Judicial Enfoycgpertt - Civil
Federal environmental enforcement activity is proceeding at levels unmatched since the
Environmental Protection Agency was created in 1970 to enhance the protection of human health and
the environment from the risks resulting from environmental pollution. Since that time, EPA has
referred 2,912 civil cases and 258 criminal cases to the Department of Justice (DOJ) for prosecution (see
Illustration 1 below). In FY1984, EPA developed and instituted a number of management
improvements to ensure that an effective and vigorous enforcement program was maintained. Since
then, the Agency has referred to DOJ 1,545 civil cases (53% of all civil cases referred since the
Agency's creation) and 212 criminal cases (82% of all criminal cases). In FY1988, EPA established
new high-water marks for both Federal civil and criminal judicial enforcement activities with 372
civil cases and 59 criminal cases referred to DOJ,
EPA QVIL REFERRALS TO
THE DEPARTMENT OF JUSTICE
FY1977TOFY1988
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88
TOXICS/
PESTICIDES
WATER
2 HAZARDOUS
WASTE
AIR
Ehistationl
1
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FY1988 Enforcement Accomplishments Report
Judicial Enforcement - Criminal
The Agency's criminal enforcement program has steadily expanded its presence in the regulated
community. As the second illustration indicates, criminal case referrals, numbers of defendants
charged, and defendants convicted have increased over time. Since 1982, individuals have received
prison sentences for committing environmental crimes totaling 91 years and over 450 years of probation
have been imposed. Imposition of probation is an extremely effective part of the criminal program
because in the event that an individual commits another crime (not limited to environmental crimes)
while on probation, the provisions of the probation normally call for the automatic imposition of a
prison sentence that was suspended in lieu of probation.
EPA CRIMINAL ENFORCEMENT PROGRAM
FY1982TOFY1988
FY82
FY83
FYM
FY85
FY86
FY87
FY88
REFERRALS TO
DOT
CASES
SUCCESSHJLLY
PROSECUTED
DEFENDANTS
CHARGED
DEFENDANTS
CONVICTED
Illustration 2
Administrative Enforcement
Referral of civil and criminal judicial enforcement actions are the performance indicators most
commonly looked to by the public and the Congress as they assess EPA's enforcement efforts. While
judicial remedies are crucial to EPA's overall success, as time goes on other indicators also need to be
evaluated to assess the Agency's effectiveness in enforcing environmental laws and regulations. In
the statutes that Congress has enacted or reauthorized over the past few years, EPA has been given
expanded authority to use administrative enforcement mechanisms to address violations and compel
regulated facilities to achieve compliance or take other corrective actions. Administrative
enforcement tools permit the Agency to impose penalties and direct regulated entities to undertake
action to correct noncompliance in a less resource intensive way than judicial remedies. As
Illustration number 3 shows, EPA enforcement programs are making substantial use of these tools. In
FY1988, EPA's enforcement programs issued 3,085 administrative actions. As with judicial
enforcement, administrative enforcement activity has been particularly high since EPA instituted
internal management improvements in FY1984, with EPA enforcement programs taking 14,638
administrative actions since then. This total represents 43% of all administrative actions taken since
the Agency was created.
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FY1988 Enforcement Accomplishments Report
Kit
EPA ADMINISTRATIVE ACTIONS
FY1977 TO FY1988
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88
TSCA 01 FIFRA D CERCLA
RCRA
a CWA/
SDWA
CAA
DlusbatianB
Federal Penalty Assessments
To comply with environmental regulations, industrial and governmental institutions must
allocate capital resources to install pollution control equipment, and they must provide for the
ongoing expenditures necessary to operate and maintain feat equipment Delaying or foregoing these
expenditures can permit an economic benefit to accrue to the regulated entity if his or her competitors
are making the expenditures necessary to comply. As part of the effort to deter noncompliahce, EPA's
enforcement programs shave developed penalty policies designed to assess penalties which recoup
any economic benefit that a noncomplying facility has realized, and assess additional penalties
commensurate with the gravity of the violation^}. Since its creation, EPA has imposed $149.9
million', in penalties ($106.5 million with civil judicial actions and,$43.4 million with
administrative actions). Since the upturn in the number of enforcement actions in FY1984, EPA has
imposed $71.2 million in civil judicial penalties (67% of all civil judicial penalties) and $39.1
million in administrative penalties (90% of all administrative penalties). The $110.3 million in
total penalties since FY1984 represents 74% of all penalties assessed since the Agency was created. In
FY1988, records were set in both penalty categories, with $23.9 million in civil judicial penalty
assessments and $11,7 million in administrative penalty assessments (these totals do not include the
$15 million penalty in the lodged, but not yet filed, consent decree in the Texas Eastern Pipeline case).
Illustration 4 graphs the history of EPA's civil judicial and administrative penalty program in terms
of the total dollar amount of penalty assessments since FY1977.. ' ,
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FY1988 Enforcement Accomplishments Report
$
FEDERAL PENALTIES ASSESSED
(Civil Judicial and Administrative)
FY1977 TO FY1988
FY77 FY78 FY79 FY80 FY81 FY82 FY83 FY84 FY85 FY86 FY87 FY88
ADMINISTRATIVE
JUDICIAL
IHustratkxi4
Judicial Enforcemeqf-Momtoriiig Congent Decrees
In FY1984, EPA had in place just over 200 judicial consent decrees directing violating facilities
to undertake actions designed to achieve compliance with environmental regulations. At the end of
FY1988, the Agency reported that over 450 judicial consent decrees were in place and being monitored
to ensure compliance with the provisions of the decrees. Where noncompliance with the terms and
conditions of the decrees Is found, EPA may initiate proceedings with the court to compel the facility
to live up to its agreement and seek penalties for such noncompliance. EPA initiated 26 actions to
enforce consent decrees during FY1988.
Contractor Listing
EPA has placed increased emphasis cm utilizing its administemtive authorities under the Qeas\
Air and Qean Water Acts to bar the Federal government from awarding contracts, grants, Or loans to
facilities'.that have demonstrated a pattern of non-compliance with the regulations promulgated
under those statutes. This enforcement tool (most commonly referred to as Contractor Listing) was
infrequently used prior to FY1986, but EPA's use of this tool has expanded significantly since the
Contractor Listing regulations were revised in 1986 and a separate staff was created within the
Office of Enforcement and Compliance Monitoring (OECM) to carry out the program. In January 1986,
only three facilities were on the Violating Facility List, but at the end of FY1988 that number had
grown to 17 facilities.
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FY1988 Enforcement AccomplishmentiReport
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 FY1988, the States referred
904 civil cases to State Attorneys General and issued 9,363 administrative actions to violating
facilities. Both of these totals represent increases over the FYI987 performance levels.
STATE JUDICIAL REFERRALS
FY1985 TO FY1988
FY85
FY86
FY87
FY88
RCRA
AIR
WATER
FY85
STATE ADMINISTRATIVE ORDERS.
FY1985 TO FY1988
,FY86
FY87
FY88
RCRA D AIR SI WATER
FIFRA
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FY1988 Enforcement Accomplishments Report
ILMATOR ENFORCEMENT
LITIGATION AND
KEY LEGAL PRECEDENTS
Cean Air
nf orcemeitt
Source
Progr
am
Asbestec Construction Services v. IP A: The court
denied Asbestec'spetition for reviewof a Section 113(a)
older issued by Region H for alleged violations of the
asbestos NESHAP. The court held that issuance of the
order by EPA did not deny Asbestec due process of the
law, not- did it deprive the company of a property or
liberty interest protected under the Fifth Amendment.
Although the order was a "final definitive statement of
the Agency's position," the court felt that other factors,
notably the government's need for speedy enforce-
ment, weighed against classifying the order as final
action subject to judicial review.
U.S. v. AaMand OIL Inc.: In November 1987, EPA
entered into a consent decree with Ashland Oil which
calls for the company to pay a $95,000 civil penalty and
also institute environmental auditing to ensure compli-
ance with the benzene NESHAP. The environmental
auditingprovision is one of the first "classic" examples
of auditing in an air-related consent decree, and in-
volves the development of a plan, a review of the plan
and actual performance by an auditor, preparation of a
report by the auditor, along with a schedule for correct-
ing any deficiencies. The auditor's report is an enforce-
able part of the decree.
U.S. v. Big Apple Wrecking; On May 19, 1988, a
consent decree was entered in this case in which me
defendantsagreed to pay a total penalty of $260,000, the
largest penalty in any asbestos NESHAP case to date.
This case involved multiple and repeated violations of
the asbestos NESHAP standard during the demolition
of 39 buildings in Naugatuck, Connecticut
U.S. v. Borden Chemicals: On March 4, 1 988, a consent
decree was entered settling this case against Borden
Chemicals for $125 million and extensive injunctive
relief. The defendant had violated several different
sections of the vinyl chloride NESHAP at its complex in
Geismar, Louisiana. A unique featureof the settlement
is the payment of $250,000 of the penalty to the Louisi-
ana State University Foundation to be used solely for
the purpose of research in the health impacts of hazard-
ous air pollutants, including epiderniological studies.
The settlement was twice the amount of the largest
vinyl chloride settlement previously obtained.
U.S. y.-Coj|pcorInc.: This consent decree resolves
alleged violations of NSPS Subparts J and GG pertain-
ing to petroleum refineries. The Subpart J violations
arose from Conoco's failure to control sulfur dioxide
emissions from three new process heaters. The defen-
dant could have achieved compliance simply by segre-
gating its flue gas streams in order to bum only clean
fuel at the new heaters while continuing to burn dirty
fuels exclusively at its older, unregulated heaters.
Instead , in exchange for a 75% mitigation of the $1
million penalty, Conoco agreed to install equipment
that will remove sulfur from all of its flue gases, result-
ing in the reduction of at least 3,250 -4,500 tons of sulfur
dioxide emissions per year. The net after-tax value of
Conoco's mitigation project exceeds $15 million.
U.S. v. Ford Motor Company This case, which in-
volves the largest penalty paid for violation of volatile
organic compound emission limits, was settled after
the US. Supreme Court denied Ford's petition for a
writ of certiorari. The Sixth Circuit had held that the
United States could enforce the provisions of a feder-
ally approved State Implementation Plan that had been
purportedly modified by a state court consent order
between Ford and state air pollution regulatory au-
thorities. The consent decree, entered on May 9,1988,
includes a certification by Ford that it has closed and
permanently ceased operating six noncomplying print-
ing lines. Ford will not resume operation of the lines
until it has obtained state opera ting permits. Also,Ford
paid a civil penalty of $1,750,000.
U. S. v. General Dynamics Corp.: In this case, the
district court held that the government can sue for
injunctive relief in air pollution cases where a contrac-
tor operates property owned by the United States. The
court also held that the Defense Production Act, which
compels contractors to perform despite other contrac-
tual obligations, does not immunize defense contrac-
tors from violations of the Clean Air Act.
U.S. v. Lenoxjhic.: In the first arsenic NESH4P en-
forcement action filed nationwide, a complaint was
filed on June 13,1988, against Lenox, Inc., for violations
of the arsenic NESHAP at its plant in Mt. Pleasant,
Pennsylvania. The complaint alleges various reporting
and recordkeeping violations, and also alleges that the
failure to report has prevented EPA from determining
whether Lenox is in compliance with the applicable
emission limitations.
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FY1988 Enforcement Accomplishments Report
NflY>5t?r InteTO^tiQnal Transportation Corp. v. EPA;
The Sixth Circuit affirmed the Administrator'sdecision
finding Navistar (formerly International Harvester)
liable under Section 120 of the Oean Air Act. In its
appeal, Navistar argued that its ten painting lines were
either excluded or exempted; from regulation. The
court rejected all of the petitioner's arguments, defer-
ring in each case to the Agency's interpretation of its
own regulations. In addition, Navistar argued that the
Notice of Noncomplianee it received was insufficient
since it lacked two of the referenced attachments which
are required under 40 CF.R. Section 66,12. The court
held, however, that jurisdiction to assess Section 120
penalties is conferred upon EPA not by the regulations,
but by the Clean Air Act which requires only a reasona-
bly specific notice. V
U.S. v. Hew Yorl; City Human Resources A&flif1 fctrfl~
. e| alj The New York City Human Resources
Administration, Department of General Services, and
the City of New York agreed to pay a civil penalty of
$200,000 in settlement of this action brought for viola-
tion of the asbestos NESHAP during renovation of a
city.shelter. :. , . '
i,: EPA negotiated a consent decree
with Shell Oil Company in connection with violations
of the NSPS regulations at the Shell refinery and sulfur
recovery plant (SRU) in Carson, California. Shell was
required by California ,GSHA regulations to take a
portion of its SRU off-line every three years for inspec-
tions which would cause a violation of the federal NSPS
regulations unless Shell shut down the entire refinery
during inspection. To avoid this problem in the future,
EPA negotiated a settlement whereby Shell agreed to
install a redundant unit at its SRU at an estimated cost
of $15 million. In addition, Shell will pay a civil penalty
of$66,900. • '. •
Solar Turbines, Jnc. v. arijgs Self
EPA: • EPA
initiated a major, enforcement action against Solar
Turbines, Inc., for construction pursuant to a Clean Air
Act PSD permit which EPA believed Pennsylvania
issued without properly requiring Best Available
Control Technology (BACT) for NOx. The district
court granted the government's motion to vacate an
earlier Temporary Restraining Order prohibiting EPA
from enforcing its Section 167 administrative order
against Solar Turbines Inc.,. for construction of gas
turbines which, in EPA's view, lacked best* available
control technology. The court concluded that the Sec-
tion 167 order was a final agency action (the first such
decision by a court) and, therefore, judicial review" was
proper only at the circuit court level. On December 6,
1988, the Third Circuit heard arguments concerning
EPA's authority to sue under Section 167 and various
jurisdictionai questions including whether the order
constitutes final agency action. In addition, on Decem-
ber 13,1988, thedistrict court granted the government's
motion to amend the complaint to include a Section 113
claim and agreed to stay further action pendinga ruling
by the circuit court This case is likely to set many of the
ground rules for PSD enforcement in the future.
ILS, y. Southern goke Corp.: The defendant agreed to
pay $100,000 in this contempt action for violations of an
earlier consent decree governing coke battery emisT
sions at Southern Coke's facility. Southern had taken
over the coking plant from the bankrupt Chattanooga
Coke and Chemicals Corp., which had been a consent
decree signatory in an earlier EPA enforcement action.
When Southern failed to operate the plant in compli-*
ance wi th applicable consent decree requirements, EPA
filed its contempt action. The $100,000 recovery repre-
sents almost all of Southern's remaining liquid assets.
WheeHng-JjttsbiirghgteeACogpv On'August 11,1988,
the Third Circuit Court of Appeals granted the US.
motion for a stay pending appeal. In May, the Court for
the.Western District of Pennsylvania had issued an
opinion and order that modified the consent decree
which applies to the coke batteries at the Monessen,
Pennsylvania, facility. The modifications would allow
Sharon Steel, which has purchased the batteries, to
operate them without controls for six months while
controls are installed. The original consent decree with
Wheeling-Pittsburgh required completion of controls
in 1985. This district court decision raised several
important issues,, including the viability of EPA's
standard "successors and assigns" language which is
used in most enforcement consent decrees.
On October 12, 1988,'the Third Circuit dis-
posed of the appeal in favor of the Government by
granting the motion for summary reversal of the May, _
1988," order. The Third Circuit*s opinion implicitly
enforced the "successors and assigns" provision of the
consent decree and firmly held that economic cons'd-
erations were not a permissible basis for modifying the
consent decree. Sharon Steel proceeded to install the k
controls prior to operating the batteries on December
28,1988, and the District Court approved consent de> ~
cree modifications agreed to by the Government and
Sharon Steel that resolve certain other technical issues
relating to Sharon's operation of the installed controls
and its achievement and demonstration of compliance
with applicable standards. !
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FY1988 Enforcement Accomplishments Report
y.fi. and Pennsylvania y,
Oil Co- In the
Air Mobile Source Program
U.S. v. Balk Oib A settlement was reached in Decem-
ber 1987, between EPA and Bulk Oil for a $1.2 miMon
civil penalty and the retirement of 50 million grams of
unlawfully created lead rights. This case resulted from
an audit conducted earlier in 1987, which uncovered a
scheme of misreporting unleaded gasoline as leaded in
violation of the lead phasedo wn regulations. This was
the largest penalty collected for a. violation of this
kind. The remedial efforts undertaken by Bulk, includ-
ing the purchase of the 50 million grams of lead rights,
were worth between $15 million and $25 million.
U.S. v. Ford; In a case involving over 103,000 1985-87
model year light-duty trucks, Ford agreed to recall the
vehicles and pay a fine of $60,000 to settle an enforce-
ment action based on the manufacturer's failure to
produce trucks which complied with their certificates
of conformity. The violation involved a warning light
designed to remind the vehicle owner to replace the
exhaust gas redrculation (EGR) valve after 60,000 miles
of use. The EGR valve is an important emissions
component in the control of oxides of nitrogen emis-
sions.
Benz: After an extensive investigation, a
$148,000 settlement was reached between EPA and the
auto manufacturer for alleged violations involving
failure to report defects which occurred during produc-
tion and improper applications for certification. The
company agreed, as part of the settlement, to imple-
ment a compliance manual and employee education
program designed to address the concerns raised by the
Agency in the case.
dean Water Act (CWA) & Safe Drinking
Water Act f SDWA) Civil Enforcement
U.S. v. Alaska Cold Co.: On November 3,1987, Judge
Fitzgerald entered the consent decree in this Clean
Water Act placer mine case. The company is now
subject to a specific compliance program and must pay
a civil penalty, of $100,000 plus interest. This is the
largest penalty ever assessed in a placer mine case.
U.S. v. Arco Oil and Gas CQJ On January 25,1988, the
Federal district court in Colorado entered a consent
decree resolvingEPA'senforcementactionagainst Arco
for unauthorized construction of an underground in-
jection well near Ignacio, Colorado. The decree im-
posed a penalty of $47500.
aftermath of a 3.9 million gallon diesel fuel spill into the
Monongahela River on January 2, 1988, the US. and
Pennsylvania lodged a consent decree with thecourton
July 6, 1988, which addresses a comprehensive clean-
up of the site, including soil and ground wa ter remedia-
tion, a continuing obligation to perform downstream
clean-ups as needed, to fully test all tanks before re-
sumption of operations, to amend its SPCC Plan, reap-
ply for appropriate NPDES Permits, stack test its vapor
recovery incinerator, perform an environmental audit,
and reimburse the federal government for approxi-
mately $680,000 in clean-up oversight expenditures.
l&S. v. Atlas Powder: A consent decree was entered
in the Eastern District of Pennsylvania resolving EPA's
enforcement case against Atlas Powder, an industrial
direct discharger who had been in violation of its Clean
Water Act National Pollutant Discharge Elimination
System (NPDES) permit. The consent decree imposed
a penalty of $840,000.
U.S. v. Chevron Refinery: EPA's lawsuit for violations
of NPDES permit effluent limitations was settled in
FY1988. Chevron paid a cash penalty of $1500,000.
U.S. v. Devon Energy Corporation: On October 7,
1987, Judge Brooks entered the consent decree between
EPA and Devon Energy Corporation, resolving EPA's
enforcement action against Devon for a violation of the
underground injection control (UIC) regulations under
the Safe Drinking Water Act, the first such decree to be
entered. EPAbroughtenforcementactionagainst Devon
Energy Corporation tor failure to notify EPA of its
transfer of certain underground injection wells to an-
other party in violation of the new regulations promul-
gated under the Safe Drinking Water Act. Under the
terms of the decree, Devon agreed to pay a $5,000 fine
for this violation. EPA also sued the transferee of the
wells, Centaur Petroleum Corporation, for other viola-
tions of the UIC regulations, and the case against that
defendant remains in litigation.
U^g. v. Grace Petroleum: On March 10, the United
States lodged in court a settlement in a Region VTO UIC
case against Grace Petroleum calling for the payment of
a $55,000 civil penalty, the largest obtained in a IOC
case, to date. The case was based on the defendant's
conducting unauthorized injection activity. Prior to
settlement, the defendant had taken necessary correc-
tive action regarding its operating requirement and
had obtained the requisite operating permit.
RS.v. Inland Steel: On March 9, 1988, EPA and Inland
lodged a consent order in the Northern District of
Indiana resolving a complaint EPA filed principally to
address deficient laboratory practices mat violated
8
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FY1988 Enforcement Accomplishments Report
v
'(as)
Inland's NPDES permit conditions. Inland will pay a
$100,000 civil penalty. This settlement resolves EPA's
first civil action initiated principally to address labo-
ratory procedure violations. .The resolution demon-
strates to other permit holders the importance of sub-
mitting accurate effluent information.
U.S. v. Paul V. Kebert. Kebert Construction Company
and Kebert Family Partnership; In the first jury ver-
dictrendered in a CWA Section 404 wetlands case in the
aftermath of the Tull decision (see discussion of the lull
case on page 10), a jury returned a verdict of liability in
November 1987, finding that defendants had illegally
filled 3-1 /2 to 7 acres of wetland s wi thout a Section 404
permit. After 1/2 day of trial before the court in
^September 1988, the defendants consented to the
Governments demand for restoration of 6.6 acres of
wetlandsanda$5,000civilpenalty. The Court will hold
the docket open until a Consent Decree incorporating
the agreement read into the record can be drafted,
executed and approved. Although'the Government's
costs in proving the case were great, the case proved
two. important points: that EPA can prevail in jury
trials, and that the Government will not abandon a
legitimate enforcement action short of an acceptable
resolution.
U.S. v. LTV Steel; Of the 12 Region V CWA consent
decrees entered in court this fiscal year, the LTV Steel
. case is particularly noteworthy because it involved a
settlement with' a company currently in bankruptcy.
The case was brought against LTV Steel Company's
plants in Ferndale, Michigan, and Cleveland, Ohio, for
failure to meet categorical pretreatment requirements
- at the two plants. During the negotiations the company
implemented the production changes and controls to
bring the plants into compliance. The consent decree
requires the company to maintain compliance and to
pay a fine of $450,000. Of particular note is the fact that
- the consent decree specified that $300,000 of the fine are
.'post-petition penalties which are immediately due and
owing and not subject to bankruptcy proceedings. The
remaining $150,000 is considered a pie-petition pen-
alty which will be paid as part of the bankruptcy
settlement . i . . •
'
. . .
Marine Protection. Research and
Aft
Administrative Complaints (MPRSAh Region II is-'
sued a series of administrative complaints against nine
sewerage authorities and six ocean-going transporters
under the MPRSA (the Ocean Dumping Act). The
authorities and transporters violated their permits by
dumping sewage sludge too quickly and on improper
courses to the 106 mile dump site. The penalties pro-
posed total over $1.25 million. ^
U.S. v.Midway Heights County WaterPistrict In this
civil action, the court held that in the context of the Safe
Drinking Water Act, "human consumption" of water
'includes uses such as bathing, cooking, and dishwash-
ing and not merely the use of water for drinking. The
court also rejected the defandant's argument that the
Government must show that illness has resulted from
contamination of a Public Water Supply System. The
court held that the widespread contamination of the
system with organisms which are accepted indicators
of the potential for the spread of serious disease in an
untreated water system presents "imminent and sub-
stantial endangerment" in the context of the SDWA.
This decision was upheld on appeal. r '
U.S^V. Efrward Lunn Tull. et al^ A consent decree was
entered in the Eastern District of Virginia resolving the
government's claims against Chincoteague Island real
estate developer Edward Lunn Tull for viola rions of the
. Clean Water Act stemming from his wetlands filling
. activities on the Island. The consent decree resolves
claims regarding several sites on the Island which had
been the subject of four previous actions litigated to
judgment in favor of the United States, appealed and
remanded for trial by jury of the civil penalty claims,
pursuant to the VS. Supreme Court's decision in the
first of four cases. The consent decree requires the
payment of $25,000 in civil penalties, which have been
paid, and the reconnection of a blocked waterway, the
removal of tide gates blocking tidal flow into wetlands,
the creation of new wetlands, and partial restoration of
a filled site. .
i i
i.
NATIONAL MUNICIPAL POLICY
U.S^jv, The City of Baton Rouge. Louisiana: A consent
decree between the United States and the G ty of Baton
Rouge was lodged on March 3,1988, and entered by the
court oh October 6, 1988. Baton Rouge was fined
$750,000 for its failure to meet the statutory deadline for
secondary treatment as required by its NPDES permit,
the largest cash penalty assessed to date under the
National Municipal Policy. The decree also requires
construction of treatment facilities costing approxi-
mately $288 million. ,~..' •
Boston Harbor Cleanup: In the Boston Harbor case,.
Region I focused on overcoming obstacles to compli-
ance with court-ordered schedules in three key areas:
acquisition of staging areas for use during the upcom-.
ing construction of the new treatment plant, the pro-
gram for management of sludge, and relocation of the
prison on the site chosen for the new treatment plant
During FY1988, the Massachusetts Water, Resources
Authority (MWRA) reached an agreement allowing
use of the Quincy Shipyard as a staging area on the
South Shore of Boston, and leasing a site on the North
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[sag]
FY1988 Enforcement Accomplishments Report
Shore. The MWRA also reached agreement with the
Oty of Quincy on processing sludge at the shipyard
from 1991-1995, a key breakthrough for the sludge
management program. In addition, the Region suc-
cessfully negotiated a schedule of interim steps to
ensure meeting the December, 1991, deadline for termi-
nating sludge discharges. With respect to prison relo-
cation, the district court issued an order requiring the
relocation by December, 1991. Lastly, the Region re-
solved the issue of past penalties. The defendants
agreed to pay a cash penalty of $425,000 and place
$2,000,000 in a Boston Harbor trust fund for mitigation
projects.
Ij'.S.jyv Central Valley. Utah; A consent decree was
entered in the district court for the district of Utah to
resolve the complaint against the Central Valley Water
Reclamation Facility Board and the seven loca! govern-
mental units in Salt Lake County, Utah, that form the
Board. The complaint alleged NPDES violations in-
cluding effluent limit violations, failure to submit
approvable pretreatment programs, occurrence of
prohibited bypasses, and reporting violations. The
consent decree requires that Central Valley be in com-
pliance with aU permit effluent requirements except
nitrogen/ammonia by July 1,1988, and to be in compli-
ance with the nitrogen/ammonia standard .by July 1,
1989. The agreement also requires that four satellite
treatment facilities connect into Central Valley by July
1, 1988, and that Central Valley submit a regional
Pretreatment program.
y. S. v. Hudson County,. New Jersey; A consent decree
was entered on June 2,1988, to resolve a civil complaint
against Jersey City, New Jersey. Settlement negotia-
tions with the four other municipalities in Hudson
County (Bayonne, Hoboken, WestNew York,andNorth
Bergen) are continuing. The complaintsagainst the five
municipalities alleged serious and long-term viola-
tions of the CWA for the discharge of untreated and
under-treated sewage and wastewater in lo the waters
surrounding Hudson County, including the Hudson
River, Newark Bay, and the Kill Van Kull. In the Jersey
City consent decree the Government obtained a pen-
alty of $500,000 and an agreement that all wastewater
flows will be diverted to the Passaic Valley Sewerage
Authority by December, 1988, to receive adequate
pollution treatment before discharge.
U,S. v.JCey West Florida: A consent decree was
lodged in the Southern District of Florida on July 18,
1988, to resolve the govemment'scivil complaint against
the dry of Key West, Florida. The complaint alleged
that Key West did not have a treatment system in
operation at the time of the complaint and that the City
was discharging approximately 6 million gallons a day
of raw sewage into the Atlantic Ocean. In addition, the
complaint alleged that the City was in violation of six
administrative orders and a State Consent Judgment.
The consent decree requires the City to select a site,
complete design and construction of a primary and
secondary treatment facility, and achieve compliance
with applicable pollution discharge limits. A civil
penalty of $600,000 and requirements to rehabilitate
various parts of the sewer systems are also required by
the decree.
U.S.v. PRASA: EPA and the Governor of Puerto Rico
announced an agreement on April 20 resolving federal
enforcement claims against the Puerto Rico Aqueduct
and Sewer Authority (PRASA) for violations of federal
water pollution control requirements at a number of
sewage treatment facilities in the Commonwealth of
Puerto Rico. The agreement would require PRASA to
pay a $2 million civil penalty for past violations and
deposit $7.9 million in an escrow account to fund
various corrective action projects to address deficien-
cies. The agreement would revise an existing court
order by establishing new schedules under which
PRASA would install or upgrade water pollution con-
trol equipment at its facilities and implement a pro-
gram for properly treating pollutants from industrial
wastewater discharged into a number of sewage treat-
ment facilities. The agreement contemplates that the
Commonwealth will help finance these pollution con-
trol improvements through a newly-created "Puerto
Rico Infrastructure Finance Authority" (PRIFA). The
agreement requires enactment by the Puerto Rican
legislature.
Comprehensive Environmental Response..
Compensation and Liability Act (CERCLA)
& Resource Conservation and Recovery Act
(RCRA) Civil Enforcement
All Regions Chemical Lab. Inc.: On September 30,
1988, Region I issued the /trsf cttril admtnistratwe
complaint in the nation under Section J09 of CERCLA
(for a Section 103 violation) and Section 325(b) of the
Emergency Planning and Community Right-to-Know
Act of 1986 (Tide 01). EPA alleged that All Regions
Chemical Lab, Inc., of Springfield, Massachusetts, had
violated Section 103 of CERCLA by failing to notify the
National Response Center of a release, and Section 304
of Title III by failing to provide written follow-up
emergency notice to the local community emergency
coord inator. The Region assessed a civil penalty in the
amount of $25,000 for the violation of Section 103 of
CERCLA. The Region also assessed a penalty in the
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FY1988 Enforcement Accomplishments Report
amount of $25,000 for the first day of the Title III viola-
tion and $500 per day for each day thereafter until the
'required notice is filed. , _,
U.S. v. BFi-CECOS: On August 12,1988, the consent
decree for United States v. Browning-Ferris Industries,
Chemical Services, Inc., and CECOS International, Inc.,
(BFI-CECOS) was lodged with the U.S. District Court
for the Middle District of Louisiana. Under the decree,
the defendants will pay $25 million in settlementof this
; action, brought for various RCRA violations at the
defendants' commercial hazardous waste treatment,
storage, and disposal facility in Livingston, Louisiana.
Hie settlement represents Jke highest penalty ever
obtained in a RCRA judicial action. In addition, the
defendant will conduct certain measures to come into
full compliance .with RCRA, including the installation
of a number of groundwater monitoring wells, and will
conduct an'environmental audit for the facility.
Cannons Engineering Superfund Site: Two consent
decrees were lodged on August 3, 1988, settling .the
Cannons Engineering Superfund case between the
government and representatives of several groups of
Potentially Responsible Parties (PRPs) associated with
the case. This comprehensive settlement with the
major parties in the case, in combination with earlier dg.
'minjmis settlements and Administrative Consent
Orders, will result in recovery of $48.1 million out of the
$585 million expected to be incurred in connection
with the four Cannons case sites". . ;
The settlement calls for the PRPs to perform
remaining response actions at three of the sites in-
volved in the case, including a removal action at the
Cannons Engineering Corporation Plymouth, Massa-
chusetts, site, the remedial action specified in the Rec-'
ord of Decision for the Cannons Engineering Corpora-*
tion Bridgewater, Massachusetts, site, and a remedial
action consistent wi th'an impending proposal to Amend
the Record of Decision for the Tinkham's Garage site in
Londonderry, New Hampshire. The value of these
response actions is estimated to be $16.1 million. In
addition, we PRPs wllpayanet of approximately$17.1
million in past costs and settlement premiums in con-
nection'with the fourth site in the case, the Gilson Road
site in Nashua, New Hampshire. This comprehensive
settlement accompanies two earlier de minimis settle-
ments in the case (including a settlement covering 313,
small volume generators), whicH are expected to re-
cover an additional $13.4 million." Also, three previous
administrative consent orders have been negotiated
with various PRPs in the case, resulting in performance
of $15 million in response actions at three of the sites."
Connecticut Logs of Interim Status Cases: The Agency
successfully, litigated and settled three RCRA Loss'of
.Interim Status (LOIS) cases involving electroplating
facilities located in Connecticut. In Stanley Plating, the
consent decree requires, closure of Stanley's land dis-
posal facilities and payment of $230,000 in civil penal-
ties. In Susan Bates, the decree requires the company
.to implement groundwater monitoring at its previ-
ously-closed surface impoundments and to pay a civil
penalty of over$197,000. The PlainvtHe Electroplating
settlement also resulted in a penalty of $230,000 as well
as closure of the facility's surface impoundments. The
Stanley and Plainville penalties represent the largest
civil penalty amount collected in a RCRA LOIS case to
date. ••„•'.
~ - • .* * " i
U.S. v. Conservation Chemical Company; In April
1988, the court approved a consent decree settling this
CERCLA Sections 106 and 107 and RCRA Section 7003
action. The consent decree requires the four original
generator defendants, along with contributions from
the site owner/operator, to remediate the Conserva-
tion Chemical site and provide reimbursement to the
Superfund of over $2.1 million. Site remediation, in-
volving site surface cleanup and construction of a"
groundwater extraction and treatment system, is ex-
pected to cost over $20 million. This settlement con-
cludes one of. the longest running .hazardous waste
cases. Since it was initiated in 1980 under RCRA (and
later amended to include CERCLA counts), the litiga-
tion of this case has resulted in a number of favorable
legal precedents on constitutional, pint and several
liability, and imminent and substantial endangerment
issuesJ . -.1 ,
, * f t
UtSt v.Hudson Refining Co.. Ipc.: A consent decree
was entered into to resolve a complaint filed against
Hudson Refining Co., Inc., Gushing, Oklahoma, pur-
suant to Sections 3008(a) and (g) of RCRA. At the time .
the complaint was filed, Hudson RefiningCo., Inc, was
in bankruptcy, having filed a petition in January 1984
for Chapter 11 Bankruptcy Protection. The final con-
sent decree embodied an earlier partial consent decree -
that required Hudson to come into .compliance with
specified interim status standards, pay $100,000 in
settlement of penalty claims, and complete an investi-
gation of its entire Cushing, Oklahoma, facility pursu-
ant to RCRA Section 3008(h).
The final Consent Decree and Workplan estab-
lished corrective action tasks and cleanup standards for
remediation of hazardous waste/hazardous constitu- ,
ents releases at(the facility. It also provides a mecha-
nism to guarantee payment of up to one million dollars
and provides the Defendant an ongoing obligation to
meet RCRA financial, assurance requirements. Be- ;
cause of its bankrupt status, Hudson's commitment of •
11
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•y
/ *k \
(55).
FF JP55 Enforcement Accomplishments Report
over two million dollars for investigation and cleanup
of the facility represents an important prioritization of
environmental claims and liabilities in a bankruptcy
proceeding. The settlement is also important in that it
is one of the first requiring both RCRA facility investi-
gation and corrective measures.
U.S. v. Inmar Associates. Inc.: In mid-March, a consent
decree was negotiated with Inmar Associates to resolve
an action for failure to comply with a CERCLA Section
106 order issued to Inmar by EPA. The consent decree
was lodged in district court. The decree requires that
Inmar make a lump sum payment to the United States
of $545,000 shortly after the decree is filed. This litiga-
tion is significant in that it resulted in the largest
penalty ($315,000) imposed by EPA upon any party
pursuant to Section 106(b) of CERCLA to date, and
resulted in a 100% reimbursement to EPA of its re-
sponse costs (approximately $152,000) plus interest.
US v. IT Corporation: A consent decree was entered
into underRCRA Section 3008{a) for the IT Corporation's
Baker facility in Martinez, California, in the first casein
the nation that enforced Sections 3015 and 3004(o) of
RCRA (minimum technology requirements for surface
impoundments). ITBaker was required todose several
non-complying surface impoundments. In addition, IT
Baker agreed to pay a $260,000 civil penalty.
Love Canal Site; By decision and order dated February
23,1988, the court granted the governments' motion for
partial summary judgment under Section 107 of CER-
CLA finding Occidental Chemical Company strictly,
jointly, and severally liable for remedial costs recover-
able under that statute. The costs were incurred by the
United States and the State of New York in connection
with the release and threatened release of hazardous
chemicals from the Love Canal landfill, including those
recoverable costs incurred prior to the enactment of
CERCLA.
U.S. v Manville Sa}es Corporation: On March 18,1988,
the District Court for the Northern District of Illinois,
entered a consent decree settling litigation between
EPA and Manville Sales Corporation, Waukegan, Illi-
nois. The consent decree requires Manville to imple-
ment Remedial Design/Remedial Action (RD/RA) as
contained in the Record of Decision (ROD), with the
estimated cost of the RD/RA estimated to be $5 million.
The decree also requires Manville to pay all past and
future oversight costs, including approximately
$100,000 of past EPA indirect costs. The Manville facil-
ity is a manufacturing plant with a 56 acre, 30 feet high
asbestos scrap pile on the premises. This pile is imme-
diately adjacent to Lake Michigan and Illinois Beach
State Park, an ecologically-sensitive preserve. Man-
ville has been disposing of scrap materials containing
asbestos at the facility since 1922. Atop the pile is a
roadway system, a 33 acre wastewater settling basin, a
system of waterways leading to the basin, and three
disposal pits, including a friable asbestos pit. The
primary feature of the ROD consists of placing a 24-inch
cover on scrap waste materials deemed thick enough to
prevent "freeze-thaw" effects or "up-freezing" of as-
bestos particles for a minimum of 100 years.
McAdoo Site - Kline Township.J'ennsylvania: EPA
entered into a mixed funding consent decree with 69
PRPs to clean up me McAdoo Kline Township Super-
fund site- The Decree was entered by the US. Federal
District Court for the Eastern District of Pennsylvania
in June 1988. The United States also filed suit against
nine non-settling parties in June, 1988, to recover EP A's
past costs ($900,000) and mixed funding expenses. The
McAdoo Site is approximately eight acres. The site and
adjacent areas were used extensively for deep and strip
mining, and for a period of four years was used as a
facility to incinerate and process industrial wastes. The
owners abandoned the site in 1979 leaving 7,000 drums
of waste on site and significant soil contamination. In
1981 and 1982,PRPsremovedtheestimated7,OOOdroms
from the site. A subsequent RI determined that high
levels of organic soil contamination remained in the site
soils. In the settlement, 69 of 93 PRPs agreed to perform
the RD/RA which entails a mine subsidence study,
additional soil sampling program and a determination
if residual soil contamination exceeds soil criteria es-
tablished by EPA. EPA will proceed to judgment
against viable Non-Settling PRPs for past cost and of
oversight costs.
U.S. T.Northside Sanitary Landfill (NSL): Thisaccess
case was filed in federal district court on February 12,
1988. This case is notable from other access cases in that
the NSL is an ongoing landfill operation, and EPA's
requests for access to perform pre-design tasks related
to the remedy for the site includes permanently closing
down the business.
Pepper Indus tries. Inc.: A RCRA administrative settie-
mentunder Section 3008(a) was readied with theowners
of the Pepper Industries, Inc., facility in Ewa Beach,
Hawaii. Under the terms of the agreement, the owners
of the underlying realty, the Estate of James Campbell
and an intermediate lessee/lessor holding a long-term
leasehold interest at the Pepper facility, will perform a
RCRA closure at the site. The operator of the facility,
Pepper Industries, filed for bankruptcy in 1984 and
defaulted on its reorganization plan in 1986. Under the
reorganization plan, Pepper was to fund its closure
trust fund. Recently, Pepper was convicted of making
a false statement to the federal government concerning
disposal of hazardous waste for the U^. Navy. Pepper's
President is currently serving a jail sentence and the
12
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FY1988 Enforcement Accomplishments Report
jag)
company will likely be forced "into total liquidation.
. This settlement is significant iri that EPA was able to
.. obtain a clean up commitment for a RCRA facility
from absentee owners who had'no contact with the
day-to-day operations of the hazardous waste facil-
ity. ' ':'• . •: .'J ' ' .. ••
Re-Solve Settfentgnfc On March 4; 1988, Region I
proposed a Nonbinding Preliminary Allocation of
Responsibility (NBAR) under Section 122(e) of CER-
CLA for use in the Remedial Design/Remedial Action
special notice negotiations for the Re-Solve site in North
'• Dartmouth,Massachusetts.: This was thefirstNBARin
the country. The NBAR was prepared because the issue
of how to allocate the cleanup costs for PCBs, which
were disproportionate to cleanup costs of the other
^wastes at the site, had caused a division among the
approximately 320 PRPs. Negotiations based on the
NBAR produced an agreement in principle in mid
September, 1988. Under the settlement, the govern-
ment is expected to recover $92 million in past costs
.spent at the site and receive $233 million toward the
cleanup of the Re-Solve site. " -
Rocky Moumlfi^ Am-naL Tjgiyg^CO: On February
1,1988,-the consent decree, signed by the Army, EPA,
the Department of the Interior, the Agency for Toxic
Substances and Disease Registry, DOJ and Shell Oil
Co., was lodged in the U.S. District Court for the District
of Colorado. The decree resolves a 1983 civil action
between the Army and Shell and requires performance
of 13 interim response actions and an on and off-post
RI/FS and remedy. The Army estimates the cleanup
will cost between $750 million and $1 billion.
p- *-'•'" j ,
U.S. v. SeafabMetel Corporation; On June 2,1988,
EPAobtainedSurnrnaryJudgrnentagainstSeafabMetal
Corporation of Seattle for its failure to comply with a
Federal, Administrative Order issued under Section
3013 of RCRA. This is the first time that a Federal court
has compelled a defendant to comply with the terms of'
Section 3013 based solely on the administrative record
established when the 'Order was issued. The Order
required Seafab to begin monitoring, testing, and analy-
sis to determine the nature and extent of hazardous
waste contamination, and to report the results to EPA.
Seafab is engaged in lead fabrication and occupies a 10-
acre site that was previously used for reclamation of
lead from automobile and industrial batteries. Infor-
mation indicated that the soil at this site was heavily l
contaminated with lead, arsenic, cadmium, and zinc. *
Section 3008(hJ CtmsenLOrder for SCA. Model City.
New York: SCA entered into a Section 3008(h) Consent'
order with EPA on September 6,1988. The Model City .
facility has operated since 1942 and has been used as a
hazardous waste managementfacility since 1972. Waste
management activities have occurred on 630 acres of
the site, and oirrent facility operations include
landfilling, aqueous waste treatment,,tank storage,
surface impoundments, fuel blending, transformer
decommissioning, and container storage and handling.
Pursuant to the 3008(h) Consent Order, SCA must
conduct interim measures, multi-media investigations,
SWMU characterization, and an assessment of,the risk
posed by the contamination.
U.S._y. Seymour Recycling Corp.,. Seymour. IN: On
August 17, 1988,''the U.S, lodged a consent decree
settling a CERCLA action in the US. District Court for
the Southern District of Indiana. The consent decree
concluded nearly ten years of litigation and required
the settling defendants to perform remedial actions at
the site"at an estimated cost of $155 to $18 million and
to reimburse the government for $6,5 of its $93 million
in past costs (to be offset by approximately $65 million
in the Seymour settlement trust fund which is com-
prised of proceeds froma previous cashout settlement).
'**'
U.S. v. Smith International: In the first CERCLA case
nationwide in which tits US. has settled with a bank-
rupt generator for future cosfs,'EPA reachedfa settle-
meritin the Smith International bankruptcy proceed-
ing associated with the site. EPA had filed a proof of
claim regarding Smith's environmental liabilities at
several sites, including the Region DC Operating Indus-
tries site. The settlement provides for a $100350 pay-
ment immediately and a total of $5 million over time.
•*' r. . . , . " '
South Carolina Recycling aad Disposal. Inc. Site; On ,
September 7,1988, the United States Court of Appeals'
issued its decision in U.S. v. Monsanto regarding the
South Carolina Recycling and Disposal, Inc. (SCRDI)
site. This CERCLA action was brought against several
generators of hazardous substances that were sent to
the SCRDI Bluff Road site inColumbia, South Carolina,
and against several owners and operators of the site.
The action sought recovery of costs incurred by the
government in cleaning up the Bluff Road site. In a
landmark decision, thedistrict court granted the United
Steles' motion for summary judgment on the issue of
liability. In a subsequent ruling, the district court held
defendants liable for past response costs of over $1.8
million. The district court declined, however, to award
prejudgment interest. The defendants appealed the
liability ruling, and the government filed a crossappeal
on the prejudgment interest ruling. The court of ap-
peals affirmed the district court decision on CERCLA
liability, holding the landowner and generator defen-
dants jointly and severally liable for the government's
response costs. In addition, the court of appeals va-
cated the district court's decision not to:*award the
government prejudgment interest, and remanded the
issue to the district court for reconsideration.
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FY1988 Enforcement Accomplishments Report
v. T & S Brass
Bronze Works. Inc.: On
January 27, 1988, the U.S. District Court for the District
of South Carolina entered the final order in United
States v. T & S Brass and Bronze Works. The case was
the first, and so far only/ Toss of Interim Status"
(LOIS) case to go to trial The court ordered T&S Brass
to pay $194,000 in civil penalties and to comply with all
applicable RCRA closure and post-closure require-
ments.
Trans
Inc.: In FY1988, pursuant to a
consent order issued by Region YD under Section3008(a)
of RCRA, TWA agreed to pay a civil penalty in the
amountof $100,000. TWA also agreed to submit closure
and post-closure plans; install and operate ground wa-
ter monitoring; perform environmental auditsat TWA's
major facilities located at the St. Louis Lambert Held
Airport, the New York Kennedy Airport, and the Los
Angeles Airport; assess compliance with applicable
federal, state and local environmental laws; and engage
in specified environmental enhancement projects.
Tyboute Corner Landfill SuperfHnjdLSitg: EPA reached
agreement with seven PRPs involved in the Tybouts
Corner Landfill Superfund litigation in a mixed fund-
ing settlement under which RD/RA operations at the
site in New Castle County, Delaware, will be privately
conducted. Under the terms of the settlement, the PRPs
will undertake design and construction of a remedy
selected by EPA ina Record of Decision dated March 6,
1986, and which will involve consolidation of two
landfills, construction of a multi-layer cap to eliminate
vertical infiltration into the remaining landfill, installa-
tion of a sub-surface drain system to prevent lateral
migration of groundwater through the landfill, and
implementation of a pump-and-treat system designed
to address an off-site contaminant plume. Estimates
place the cost of this remedy at between $20 million and
$60 million. The settlement terms require the signato-
ries to contribute a total of 93% toward the costs of the
remedy. Further, EPA is reviewing four de minimis
consent decrees executed by fourteen third party de-
fendants in the Tybouts litigation. The de minimis
settlements, when finalized, will generate approxi-
mately $1.73 million. The Government' s recovery be-'
tween the main and de minimis settlement is approxi-
mately 923%, These developments could bring to an
end almost two years of negotiation between the Gov-
ernment and the PRPs to resolve a lawsuit filed in
connection with the Tybouts site in 1980. The site is
ranked number! on EPA's National Priorities List and
is designated by Delaware as a top priority site.
Toxic Substances Control Art (TSCA>1 &
Federal Insecticide. Fungicide, antj
Rodenticide Act (FIFRA) Civil Enforcement
U.S. v. Afyeska Pipeline Service Company; On Janu-
ary 5,1988, the US, Court of Appeals handed down an
important decision of first impression upholding a
lower court ruling mat EPA had the right to use TSCA
subpoena authority to investigate allegations of toxic
chemical mishandling in Valdez, Alaska. The appeals
court agreed that TSCA authority may be used to
investigate all chemical substances, not just Polychlori-
nated Biphenyls (PCBs) or imminently hazardous
substances as Alyeska argued, and that EPA can inves-
tigate merely on suspicion that the law is being vio-
lated, or even if it wants assurance that it is not
This decision is very significant to EPA's En-
forcementprogramforseveralreasons. First, the Court
of Appeals rejected Alyeska's claim that EPA was using
TSCA for an improper purpose, i.e., to investigate
CWA violations, citing an earlier Ninth Circuit deci-
sion that "an independent regulatory administrative
agency has the power to obtain the facts to determine
whether it has jurisdiction over the matter sought to be
investigated." In addition, the court held that EPA
"need not first allege a violation of the law before it can
investigate," since the Administrator has the authority
to decide which environmental law is appropriate to
investigate individual cases Second, the court recog-
nized that where Congress has granted the authority to
investigate, and EPA follows appropriate procedures,
subpoenas for evidence relevant and material to. the
investigation will be enforced.
BASF Corporation: BASF Corporation and its Inmont
division agreed to pay a$1.3 million penalty for import-
ing or processing 11 new chemicals substances without
first notifying EPA. Notification to EPA is required so
that it can evaluate new chemicals' potential to harm
healthortheenvironment. The settlementalso requires
BASF to conduct a comprehensive TSCA compliance
audit of 151 .of its facilities, and to conduct training
sessions for employees in the U.S. and West Germany.
In the first settlement agreement of its kind, BASF is
required to certify compliance with TSCA at the end of
theauditperiod. In a separate settlement BASF agreed
to pay an additional $82,500 penalty for notification
violations involving 10 shipments of chemicals in 1984
and 1985.
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FY1988 Enforcement Accomplishments Report
Bolidqn Metcch v. U.S.: On September 20,1988, US.
District Court for Rhode Island issued the first district
court decision since the enactment of TSCA in 1976 to
address the use of a TSCA administrative search
warrant. The opinion and order supports the Agency's
authority to obtain administrative search warrants
under TSCA, and by inference other environmental
statutes, givingtheAgencytheauthority toinspectand
use an ex parte administrative search warrant. The
opinion applies the reasoning of the Supreme Court's
decision in the Clean Air Act aerial surveillance case,
Dow jZhemical v. U5. In this case the court held that
because EPA has the explicit authority to enter facilities
to make inspections under the Toxic Substances Con-
trol Act; the Agency has the implied authority to seek
an administrative search warrant to carry out effec-
tively the purposes of this statute. •->
. . I •.-"',. . . F " ! ,' 'V
To develop additional data on the extent of
,PCB contamination at the site and to document PCB
releases, EPA attempted to inspect the site in January,
1988. Boliden refused to allow the inspection and EPA
obtained a search warrant. The company then sought
an injunction in the District Court of Rhode Island
asking that the search warrant be declared illegal and
to have the court direct the EPA to return all of the
samples obtained during the inspections. The com-
pany also asked the district court to declare that EPA
lades the authority to obtain search warrants under
TSCA because the statute does not explicitly state such
authority. Boliden also challenged EPA's use of !an ex
parte warrant stating that to allow the Agency to get
sucha warrant infringed uponBoliden'sFourth Amend-
ment rights. It proposed that it was necessary for the
company to have an opportunity to express its position
before a warrant was issued to give it an opportunity to
influence the type of investigation procedures that
would be authorized by.the court for EPA to use. -
The court denied'the argument stating that
such an adversarial proceeding would "deny the EPA
the element of surprise" and force a presiding magis-
trate to make "determinations outside his field ,of ex-
pertise." It stated that such a "pre-hearing, full-blown
adversaria] proceeding" would cause delay that would
frustrate the "public purpose underlying TSCA." The
court also declined to interfere with .the collateral
administrative civil penalty action then pendingbefore
an EPA Administrative Law Judge, finding it had no
•jurisdiction. . . , / •-; .
DeLonghi America,. Inc.: This action concerned the
illegal import, sale, distribution in commerce and ex-
port of oil-filled portable electric space heaters from
Italy by DeLonghi. The violations were initially discov-
ered by Environment Canada. EPA tests confirmed
that several shipments of heaters contained oil con-
taminated with nigh levels of PCBs. The import of
PCBs and PCB items was banned in 1978. Since these
heaters were sold in commerce for home use, EPA
considered the violations to be serious. EPA issued a
civil administrative complaint for the assessment of a
large penalty for these violations. DeLonghi entered
into a consent agreement with the Agency on June 8,
1988. The agreement requires DeLonghi to pa_y a pen-
alty of $500,000 for the illegal import and export. In
addition, DeLonghi will send out notices to 70,000
warranty card holders, informing them that certain of
heaters may contain PCBs. DeLonghi will pay for the
disposal of units returned to the retailer. A toll free
phone number to assist consumers and retailers with
questions about the handling and disposal of these
appliances will be set up. A quality assurance program
to ensure that future imports are PCB free will also be
established. - „ ,
Company: On September 2, 1988, an administra-
tive civil complaint was issued against the Minnesota
Mining and Manufacturing (3M) Company of St. Paul,
Minnesota,assessinga$l,394,5QOproposed penalty for
violations of Sections 5 and 13 of TSCA. The violations
were voluntarily disclosed by 3M. EPA is citing the
company with failing to notify EPA prior to the impor-
tation of two chemical substances that were not on the
TSCA 8(b) Inventory list. The complaint also cites the
company for falsification of certified statements that
wereprovided to thedistrict director at the port of entry
representing the true compliance of the chemical sub-
stances. . , •
Qrign-lxjerminating Company: In this F1FRA admin-
istrative action, Judge Yost held that Orkin's use of
"Orkill", a registered pesticide, constituted misuse of a
chemical that was "inherently extremely hazardous"
and imposed the maximum proposed penalty of $5,000.
The Judge had found that testimony for the govern-
ment to be "uncontroverted." In this case, the customer
and. family, were forced to permanently vacate the
home because of chemical contamination. ..,
y.S. v. Texas Eastern Transmission Corporation: On
June '6, a consent decree in the Agency's enforcement
action against Texas Eastern Transmission Corpora-
tion, d /b/a Texas Eastern Gas Pipeline Company was
Jodged with the District Court for the Southern District
of Texas. The precedential consent decree encompasses
the largest single settlement ever obtained by the United
States against one entity for violation of an environ-
mental statute,
The consent decree requires Texas Eastern to
pay a civil penalty of $15 million dollars, and to charac-
terize and remediate 89 sites located in fourteen states
at an estimated cost of $450 million. In addition, Texas
15
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<&
FY1988 Enforcement Accomplishments Report1
Eastern is required to reimburse the Agency for past
and future costsrelated to the investigation and cleanup,
and to conduct a company-wide audit of pipeline facili-
ties to correct PCB Rule violations.
Criminal Enforcement - All Statutes
U.S. v. Arcangelo. et aL fRCR A/OERCLAh Onjune24,
1988, a 15 count Racketeer Influenced Corrupt Organi-
zation statute (RICO) indictment was unsealed. Two
of the counts charged Charles and James Arcangelo
with a RCRA disposal violation and a notification
violation under GERCLA in connection with the dis-
posal of mercury in North Haven, Connecticut. This
case represents the/trsf EPA joint investigation with
theDepartment of Justice Organized Crime Strike Force.
U.S. v. Argent Chemical Laboratories Jnc. (HFRA1:
On January 14,1988, in the United States District Court
in Seattle, Washington, Argent Chemical Laboratories,
Inc., Eliot Laurence Lieberman, its chief executive offi-
cer, and Beatrix Faith Shanahan, its vice-president,
entered guilty pleas to Federal criminal charges relat-
ing to the illegal distribution of pesticides and veteri-
nary drugs used by commercial fish farms and the
aquaculture industry. Argent is headquartered in
Redmond,Washington, and promotes itself as the
nation's largest producer and seller of aquatic pesti-
cides. In pleading guilty. Argent became the first
pesticide manufacturer, rather than a pesticide dis-
tributor and/or applicator, to be successfully prose-
cuted by EPA under FIFRA criminal provision.
In 1982, the State of Washington and the EPA
advised the defendants, in connection with a Stop Sale
Order concerning Argenfs sale of its unregistered
algiride, Copper Control, of the federal requirements
for the registration of all pesticide products. Nonethe-
less, EPA investigators determined that the defendants
continued their sales of Copper Control and other
unregistered pesticides produced by the company.
While engaged in such sales, Lieberman, on January 20,
1985, submitted a written affidavit to state and federal
authorities falsely asserting that Argent had not pro-
duced or sold any unregistered pesticide products. In
conjunction with the FIFRA violations, the government
also established that the defendants were engaged in
the interstate sale of misbranded veterinary drugs in
violation of the Federal Food, Drug and Cosmetic Act
(FDCA), and that Argent falsely reported through
Lieberman to theFDAthat Argent was not manufactur-
ing atid distributing one such drug when in fact it was
doing so.
U.S. v. Chepi-Wood Treatment Inc. ORCRA); On June
2,1988, a federal grand jury in Honolulu, Hawaii re-
turned a one-count RCRA indictment against Chem-
Wood Treatment, Inc., a wood preservative treatment
firm, and Erie Kitagawa, its vice-president and general
manager. The count charges that the defendants from
July 25, 1985, until September 21, 1986, knowingly
stored a hazardous waste, the pesticide copper chro-
mium arsenate, used in the company's wood treatment
process, without having a required permit.
On July 25, Chem-Wood Treatment Company
and Erie Kitagawa were sentenced in the US. District
Court in Hawaii after both had previously pled guilty
to the criminal charge of the illegal storage of hazard-
ous wastes. Chem-Wood received a $25,000 fine and
Kitagawa a $5,000 fine plus 100 hours of community
service. The court placed Kitagawa on three years
probation and required him to see that the additional
million dollars needed for cleanup of the site is ex-
pended for that purpose.
U.S. v. Commercial Metals Co.. Inc.. d/b/a Karchmer
|ron and Metal Company. Inc.. Harold Belcher of
Oklahoma and Jafflgs Vermillfon of Springfield,.
Missouri fRCRA); On July 27,1988, the Federal Grand
Jury in Springfield, Missouri, returned a six count
indictment naming the above parties. According to the
indictment, Commercial Metals Co., et aL, conspired
with each other and with other persons from on or
about January 1983, up to and including May 27,1987,
to violate the environmental laws of the United States
by disposing of hazardous waste by negligently dis-
charging pollutants from a point source in navigable
waters of the United States, and by disposingof hazard-
ous waste without first obtaining a federal permit for
such disposal, knowing at the time that they thereby
placed another person in imminent danger of death or
serious bodily injury, their conduct in the circumstances
manifesting extreme indifference for human Ufe. If
convictedof the charges, Commercial Metals, Inc., could
be fined up to $2,100,000 together with costs of restitu-
tion and clean-up. If convicted of the charges, Harold
Belcher could receive a sentence of up to 14 years
imprisonment and/or a fine of not more than $600,000.
If convicted of the charges, James VermiHion could
receive a sentence of up to 15 years imprisonment and /
or a fine of not more than $625,000.
U.S. v. Gardinier. Inc. fCWAh On August 3, 1988,
Gardinier, Inc., a Tampa-based phosphorus mining
operation, pled guilty to a one-count information filed
that day charging the company with the failure to
report to the National Response Center, in violation of
the CWA, a spill of approximately 40,000 gallons of
phosphoric acid into the Alafia River, which flows into
Hillsborough Bay, a navigable waterway connected
16
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FY1988 Enforcement AccompUsKments Report
with Tampa Bay. The spill occurred on or about May 2,
and required the efforts of emergency response teams
from both Region IV and the U.S. Coast Guard. Inves-
tigative efforts by the Region IV Office of Criminal
Investigations and the FBI determined that Gardinier
was the source of the spill. Violation of 33 US-C. Section
132KB) (5), which" served as a mode! for CERCLA
Section 103(b), is a misdemeanor, carrying a penalty of
up to one year in prison, "or a fine of not more than
$100,000. At the time of sentencing Gardinier agreed to
be placed on one year of probation, subject to numerous
conditions. Among those conditions were (1 ) perform-
ing the restoration of surrounding wetlands and. the
creation of an artificial reef in Hillsborotigh Bay (the
low pH of the spill caused extensive damage), (2)
training in environmental laws and regulations for
Gardinier personnel, (3) the upgrading of Gardinier' s
tank storage areas, and (4) the agreement to take what-
ever corrective action an environmental audit team
recommends for the Gardinier facility.
* '
U.S. v. Sam Jenkins. r. and
fCW A): On May 25, 1988, a federal grand jury in
Seattle, Washington, returned an eleven-count indict-
ment against Sea Port Bark Supply, Inc., and its Owner-
President, Sam Jenkins, Jrl , Seven counts charged the
two defendants as second Clean Water Act criminal
offenders, in violation of 33 U.S.C. Section 1319(c){15
(the old CWA criminal provision that doubled the
' penalty for second CWAconvictions). Both defendants
were also charged with four CWA counts under the
- 1987 CWA felony provision, 33 U.S.C. Section
1319(cK2)(A), for the knowing discharge of plant was-
tewater without a permit. These four violations oc-
curred after enactmentof the Wa tcrQuality Act of 1 987.
(Hits was the first CWA repeat offender indictment.)
On" July 25, 1986, both pled guilty to a CWA misde-
meanor violation (33 U.S.C. Section 1319(c)(D) arising
- from the unpermitted discharges of wastewater from
the plant's bark chip washing operations via an under-
ground overflow pipe into an adjacent waterway. After
those convictions, EPA special agents monitored the
company's CWA compliance and observed that Sea
Port, after a period of compliance, had returned to its
' earlier practice of allowing wastewater to flow into the
waterway (perhaps lulled into a false sense of security
' by the lenient $1,000 fine for the company and a $250
fine for Jenkins for their 1986 CWA convictions). As a
second offender, Jenkins faces up to 26 years in prison
and fines up to $550,000, or both. Sea Port faces fines of
up to $550,000.
U.S. v. MacDonald and Watsort Waste Oil Company.
etai.fltCRA); In t he firstfederal prosecution under the
'-Racketeer Influenced Corrupt Organization statute
(RICO) involving the improper handling of hazardous
waste} on April 26, 1988, the United States Attorney
Office for the District of Rhode Island unsealed a 53-
countindictmentthatcharged two Rhodelsland corpo-
rations and five individuals associated with those cor-
porations with a conspiracy involving the illegal trans-
portation, storage, and disposal of hazardous waste. It
also represents the first RICO prosecution to the Dis-
trict of Rhode Island. Also, on April 26, federal mar-
shals arrested the president of MacDonald and Watson
-Waste Oil Company, Eugene K. D* Allesandro.
• ••;,
The indictment charges MacDonald and Wat-
son Waste Oil Company, Narragahsett Improvement
Company, Eugene K.' D'Allesandrb, Vincent
Cinqegrano, Fran Slade, Faust Ritarossi, and Michael
O'Laughlin, with fifty-one felony counts and two mis-
demeanor counts stemming from a conspiracy to trans-
port, store, and dispose of liquid hazardous wastes,
sludges, and waste oil-contaminated soils. It is alleged
that the tworcornpanies entered into contracts for the
removal and ultimate disposal of hazardous substances
and wastes, when actually those substances and wastes
were buried'in ditches, poured in storm drains con-
nected with municipal sewerage systems, or mixed
with ordinary trash for disposal in municipal sanitary
landfills. ' - >
U.S. v. Marathon Development Corp. (CWA): In the
first successful EPA criminal prosecution for Section
404 wetlands violations, on May 4,1988, US. District
Court Judge McNaught in Boston handed down sen-
tences against Marathon Development Corp., and
Terrenes Geoghegan, Marathon's vice-president, sub-
sequent to their previous guilty pleas. Imposition of
sentence awaits resolution of a narrow appeal by
Marathon to the Court of Appeals for the First Circuit
Both' defendants pled guilty to all 25 counts of an
indictment, filed on April 8,1987, charging them with
' criminal violations of the Clean Water Act (CWA) (33
U.S.C. Section 13I9(c)(l)) for their*failure to acquire a
U.S. Army Corps of Engineers permit to fill a wetland
tract, as required by 33 U.S.C Section 1344. Marathon
filled a 5 to 7 acre wetland within a 117 acre site on
which it intended to build a shopping mall develop-
ment in Seekonk, Massachusetts. Geoghegan was
sentenced to a six-month suspended-prison term, one
year of probation, and was ordered to pay a fine of
$10,000. Marathon was sentenced to pay a $100,000
• fine.
r , , i-: • ' '-•' '
. . In its sentencing memorandum, the govern-
ment charged Geoghegan and Marathon with being
motivated solely by greed in deciding intentionally to
viola te the law (evidence was presented thatMarathon's
environmental consultants and the Corps both informed
Geoghegan of the Section 404 permit requirement).
That memorandum asserted that Geoghegan and
Marathon decided not to apply for a wetlands permit
17
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FY1988 Enforcement Accomplishments Report
because they were aware that a competing shopping
mall developer had unsuccessfully applied fora permit
to fill wetlands for a similar development in neighbor-
ing Attleboro, Massachusetts. Judge McNaught, in
response to defense counsel's assertion that the
government's recommendation of imposition of six
months imprisonment, with all but 30 days suspended,
and a $25,000 fine for Geoghegan and a $250,000 fine for
Marathon, was unduly harsh because no toxic or haz-
ardous substances were involved, responded that the
earth fill deposited over the wetlands was just as toxic
to the plant life as any toxic chemical would have been.
U.S^v. Ocean Spray Cranberries. Inc^CCWA): On
January 28,1988, a grand jury in Boston handed up a 76-
count indictment against Ocean Spray Cranberries,
Inc., for misdemeanor and felony violations of the
Gean Water Act occurring over a five-year period at its
Middleborough, Massachusetts plant. The indictment
charges 65 counts of negligent discharges into the
Middleborough sewer system of untreated process
waste waters that occurred prior to February 4,1987, in
violation of 33 U.S.C Section 1319 (c)(l) (the old CWA
misdemeanor provision). Because Ocean Spray had
not pretreated its process waters, the low pH of the
waste caused the Middleborough POTW to fail to meet
its NPDES limitations. Six counts charged the revised
felony provision of the CWA for knowing violations for
low pH discharges that occurred after the enactment of
the Water Quality Act of 1987, in violation of 33 U.S.C
Section 1319(c)<2), and the last five counts charged the
discharge of wastewater directly into the Nemasket
River without an NPDES permit, in violation of 33
U5.C. Section 1319{c)U). The penalty for each misde-
meanor CWA count is a fine of not less than $2,500 nor
more than $25,000. Ocean Spray faces up to $1,750,000
in fines on those 70 misdemeanor counts, and under the
six felony provision counts, which provide fines of not
less than $5,000 nor more than $50,000 per violation,
Ocean Spray faces up to $300,000 in fines.
U.S. v.OrkmExterminating Co. (FIFRAk On April 21,
1988, a federal grand jury in the Western District of
Virginia indicted Orkin Exterminating Co., on five
counts of violating the Federal Insecticide, Fungicide,
and Rodentitide Act(FIFRA). Theindictmentsstemmed
from the 1986 deaths of an elderly couple in Galax,
Virginia, within a week after Orkin fumigated their
home with Vikane, a fumigant lethal to humans in
certain doses. On August 8,1988, a federal judge found
Orkin guilty of one misdemeanor violation of FIFRA
for failing to ensure that the amount of Vikane in the
house had been reduced to safe levels prior to permit-
ting the couple to reenter their home. After a two-day
sentencing hearing, the judge found tha t thecouple had
died as a result of exposure to excessive levels of the
fumigant, and that Orkin's violation of FIFRA had
resulted in the couple's death. Pursuant to the Alterna-
tive Fines Act, the judge sentenced Orkin to pay a
$500,000 fine, with $150,000 of that amount suspended
upon completion of two years probation and perform-
ance of 2,000 hours of community service.
U.S. v. Fennwalt fCWA/CERCLA): On May 20,1988,
in Seattle, Washington, a federal grand jury indicted
the Philadelphia-based Pennwalt Corporation, Inc./one
of the nation's largest chemical companies, and four
corporate officials, for six environmental criminal vio-
lations stemming from a January 2,1985, tank collapse
atPennwalf sTacoma, Washington facility. Pennwalt,
Robert S. Custer, former corporate vice-president for
Chemicals, Franklin M. Shannahan, president of the
Pennwalt Inorganic Chemical Division, and Orval J.
High, manager of the Pennwalt Tacoma Plant, were
indicted on one count charging a negligent violation of
the CWA. The basis of this charge was their failure to
prevent, despite their apparent ability to have reme-
died the known structural weakness of a holding tank,
the January 2,1985, spill of approximately 75,000 gal-
lons of a sodium chlorate solution into the HyJebos
Waterway from the ruptured tank. This is the first
time an environmental criminal violation has been
linked to a knowing failure to perform preventative
maintenance.
Pennwalt and Mr. High were also indicted in a
second count for a violation of the general federal false
statement statute for falsely underreporting to the US.
Coast Guard that the spill amounted to 20,000 gallons
instead of the actual amount that was three times that
quan tity, and for failing to report that the spill involved
sodium chlorate, a hazardous substance, which pre-
vented emergency clean up procedures from being
initiated. In addition, Pennwalt and High were in-
dicted in the third count for a failure to make a timely
report of the spill of this hazardous substance to the
Coast Guard, a CERCLA violation. These same two
defendants were also charged in the three remaining
counts with the unpermitted discharge of the chemical
solution into the Waterway via the plant's drain system
during the process of cleaning up the spill.
U.S. v. Protex Industries. Inc. (RCRAyCWA>. On
March 2, the U.S. District Court in Denver sentenced
Protex Industries, Inc., following the company's De-
cember 21,1987, conviction on 16counts, three of which
constituted the first conviction under RCRA corporate
knowing endangerment. Protex has appealed its con-
viction on all 16 counts to the Court of Appeals for the
Tenth District. Protex, whose cash assets total $3,375,000
in escrow with the Clerk of the District Court after a sale
approved by the U.S. Attorney's Office, faces a total fine
of $7,600,000 based on its conviction on three counts of
RCRA knowing endangerment, eight counts of RCRA
18
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FY 2988 Enforcement Accomplishments Report
unpermitted storage or disposal,,one count of unper-
mitted discharge into the water (a misdemeanor be-
cause it occurred prior to the 1986 CWA Amendments),
three counts of knowingly making-false statements to
federal, state, and local officials concerning the nature
and .extent of its waste handling activities, and one
' count of conspiracy to operate a treatment, storage, and
'disposal facility without a permit. • .
t . . ' "' • *
. Thecourt,influencedbyProtex'slackof contri-
tion and failure to.accept responsibility for its acts,
•' meted but the maximum sentence ($7.6 million) pos-
' sible under the conviction. But because of ..the
" corporation's, limited remedy for the three Protex
' employees (whom Protex knowingly placed "in immi-
nent danger of death or serious bodily injury" by order-
ing them to handle hazardous wastes), and because the
cost of the cleanup (which the Colorado Heal m Depart-
ment had ordered Protex to conduct two years ago) was
estimated at $2 million, the court crafted_a creative
remedy whereby Protex was ordered to establish a
$950,000 trust fund to compensate the endangered
employees and to pay $440,000 in fines by March 14,
with the remainder of the $7.6 million suspended on
condition mat the company comply with those two
conditions of probation. The company was ordered to
pay for site dean up, and was allowed to use its remain-
ing $1,980,000 for this purpose. Violation of any terms
will result in .automatic imposition of the full $7,6
million fine. . •
Martha C Rose Chemicals; ' -
oU.S.v. Patrick E. Pen-in (TSGA). On July 20,1988,
Patrick E. Perrin, former general manager of the de-
funct Martha C Rose Chemicals Co., Inc., Holden,
Missouri, was sentenced to two years in a federal peni-
tentiary on his guilty plea to one felony count of .con-
spiracy to defraud the government. ,. ~_~,
oUfS; v. Dwight E. Thomas (TSCA/CWAK On Sep-
tember 21,1988, the Federal Grand Jury of the Western
'District of Missouri indicted a former employee of
Martha C. Rosein a 32 count indictment with falsifying
and conspiring to falsify records concerning the
company^ handling and disposal of PCB waste. Mr.
Thomasallegedly falsified recordsand reports required
under the terms of PCB Disposal Approvals issued by
EPA to Rose as required by the PCB regulations. (The
records concern the transportation, storage, decon-
tamination, and disposal of PCB transformers, large
capacitors, PCB oils, and PCB contaminated solids).
Thomas could face a maximum penalty of 156 years in
a federal penitentiary and fines of more .than $7 mil-
lion. " . , ,
U.S. v. Albert S, Tumm (RCRA/CERCLAh On Octo-
ber 11,1988, Albert Tumin was sentenced to a two year
prison term following his April 13'conviction by a
grand jury in Queens on all three counts of an indict-
ment filed on July 8,1987, under the knowing endan-
germent provisions of RCRA. This is the first convic-
tion of an individual under the RCRA knowing endan-
germentprovisions. Tumih's indictment resulted from
his purchase in 1985 of three 55-gallon drums of ethyle-
ther, a highly explosive RCRA-listed waste, used for,
among other purposes, the manufacture of cocaine,
from a chemical supplier who had an agreement with
the Drug Enforcement Agency to report suspicious
purchases of chemicals commonly used in illicit drug
manufacture. When, the transaction for which Tumin
had purchased the ether fell through, he attempted to
return"the drums to-the seller, who refused to accept
them. Upon leaving the seller's premises, Tumin real-
ized he was being followed by DEA agents, who had
been tipped off by the seller. After he thought he had
eluded "the-agents,'during the night of September'12,
1985, he abandoned the drums in a lot in a neighbor-
hood in Rockaway, Queens. *
' x *' - " "V
The indictment charged Tumiri with one RCRA
, count for the knowing unlawful transport of a hazard-
ous waste to an unpermitted facility, one RCRA count
for knowingly placing other people in imminent dan-
ger of death or serious bodily injury by his knowing
unpermitted disposal of a RCRA' waste, and one CER-
. CLA count for the failure to report the release of a
'reportable quantity of a hazardous substance to the
National Response Center. Under ttie RCRA transport
count, Tumin faced a fine of not more than $50,000 and
•up to five years imprisonment, under the knowing
endangerment count he faced a fine of up to $250,000
and up to 15 years imprisonment, and under the CER-
CLA coun t he faced a'fine of up to $10,000 and up to one
year imprisonment(theact occurred beforeSARA raised
the CERCLA penalty to felony level).
t > * ' . * !
l|,S. v, Welco Plating, IncgndJ^C.Collins. IT. (RCRA/
CERCLA/CWA): On April 22,1988, following their
April 5 guilty pleas, theowner/operator and hiselectro-
pla ting company weresentenced for the acts charged in'
a 30-count indictment "filed on January 29,1988, in the
U.S. District Courrfor the Northern District of Ala-
bama. The indictment, which resulted from an FBI
investigation, alleged that J.C. Coffins, Jr., and his
company, Welco Plating, Inc., of Woodville, Alabama^ -.
conspired to violate CERCLA, RCRA, and CWA by
dumping into rural roadside ditches electroplating
rinsewatcr wastes over a nine year period from 1978 to
1987.
19
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i FY 1988 Enforcement Accomplishment.
Collins was sentenced to serve 18 months in
prison, was fined $200,000, was placed on five years
probation, and must perform 300 hours of community
service. In addition, he must pay $14,47220 to the State
of Alabama Department of Environmental Manage-
ment. For its corporate guilty plea, Welco Hating must
pay an estimated $1,300,000 in cleanup costs and pay
$14,472.20 to the State of Alabama Department of
Environmental Management. Collins, thetormermayor
of Woodville, had pled guflty to six counts of the
indictment. Specifically, Coffins pled guilty to the
knowing disposal of hazardous waste to an un permit-
ted facility, in violation of RCRA, the knowing disposal
of a hazardous waste without a permit, in violation of
RCRA, the knowing transportation of hazardous waste
without a manifest, in violation of RCRA, conspiracy,
in violation of 18 US.C- Section 371, failure to notify the
National Response Center of a release of reportable
quantity of a hazardous substance, in violation CHR-
CLA, and one count for the willful discharge of a
hazardous substance into the waters of the United
States,inviolationof the CWA
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FY 2988 Enforcement'Accomplishments Report
HI. BUILDING AND MAINTAINING A STRONG
NATIONAL ENFORCEMENT PROGRAM
Program Development «
State/EPA Enforcement Agreements ''
The Policy Framework for the Stake/EPA Enforcement Agreements is the blueprint for EPA's
enforcement relationship with State enforcement programs. Each year the EPA Regional Offices and
the States negotiate enforcement agreements establishing clear oversight criteria for assessments of
State and EPA compliance and enforcement programs. The agreements also establish the criteria for
direct Federal enforcement in delegated States (including procedures for advance consultation and
notification), and they "put into place procedures for State reporting of management information to
EPA. - - • , '
The most recent revisions' to the Policy Framework (1986) more clearly established Federal
oversight of State civil penalty assessments. The Policy also strongly encouraged greater
involvement by State Attorneys General in the enforcement agreements process, communicating on
priorities and case status,!and planning resource needs. The FY1988 State/EPA Agreements process
sought to improve Regional consistency in addressing areas covered by the agreements, and reiterated
the need for the EPA Regional Offices to reach an understanding with their States on Federal
facility compliance issues- (For further information contact OECM's Office of Compliance Analysis
and Propam Operations (OCAPO))
Penalty Practices Report
Each year EPA produces a comprehensive analysis of the financial penalties EPA obtained
from violatars of environmental laws. The report contains an Agencywide overview as well as
national and regional summaries for each program. The report also compares annual performance
with historical trends. For FY1988, the report indicates that EPA imposed $23.9 in civil Judicial
penalties and $11.7 million in administrative penalties, both all-time agency bests (these totals do
not include the $15 million penalty in the lodged, but not yet filed, consent decree in the Texas Eastern
Pipeline case). (For further information contact OCAPO)
Timely an$l ATjpropjiate; Enforcement Response
The Timely and Appropriate Enforcement Response concept seeks to establish predictable
enforcement responses by both EPA and the States, with each media program defining timeframes for
the timely escalation of enforcement responses. Tracking of timeframes commences on the date the
violation is detected through to the date where 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.
The concept of Timely and Appropriate enforcement response is working well, and it has
provided both EPA and the States with useful objective measures of performance which has
improved the enforcement relationship. Preliminary analysis of FY1988 performance indicates that
the timeliness of response in the majority of EPA's programs has generally remained unchanged from
the previous year. (For further information contact OCAPO)
21
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FY1988 Enforcement Accomplishments Report
Implementation of the Inspector Training and Development Program
In FY1988, the Agency completed development of the Inspector Training and Development
Program. The program was initiated in FY1987 in response to the need for a cross-cutting basic
inspector training course to teach the fundamentals of conducting inspections to all Agency inspection
and field investigation personnel, as well as filling the need for more advanced media specific
training. The Office of Enforcement and Compliance Monitoring (OECM), in cooperation with EPA
Regional Offices and the Headquarters enforcement programs, developed the curriculum for the
training program to ensure that all Agency inspection personnel are able to conduct technically sound
inspections to enhance EPA's ability to determine source compliance and support formal enforcement
actions. EPA Order 3500.1, signed by Administrator Lee M. Thomas on June 29,1988, made mandatory
the satisfactory completion of basic and prpgram-spedfic inspector training before any 1PA employee
may lead an EPA inspection unless they have otherwise been exempted based on previous training or
experience. Although the Order does not apply to persons employed by State and Local agencies,
these agencies are encouraged to establish similar structured programs and to avail themselves of
EPA training materials. (For further information contact OCAPQ)
Contractor Listing Program
EPA has the authority under the dean Air and Clean Water Acts to assure that the Federal
government does not do business (i.e.. engage in grants, contracts, or loans) with facilities that have
demonstrated a pattern of noncompliance with those statutes. In FY1988, the listing program
addressed substantial new policy questions resulting from the change in the regulations and the issues
raised by the cases processed under the new regulations. The program developed several major new
policies including the use of listing in CAA NESHAP cases, and the resolution of listing issues in plea
agreements. The program also developed a 140-page manual, the Contractor Listing Protocols, issued
on October 7,1987, and developed materials and a training program for compliance and enforcement
personnel and case examiners, finally, Contractor Listing was included as an enforcement component
in the EPA Federal Facility Compliance Strategy. (For further information contact the OECM's
Contractor Listing Staff.)
Strategies. Guidance, and Initiatives
EPA continues to make use of the strategic planning process to refine and improve its compliance
and enforcement strategies. This management tool is designed to promote strategic thinking by senior
managers, and help them focus on how best to address emerging environmental problems. The written
strategies and guidance for compliance and enforcement, especially for newer programs, serve as the
framework for day-to-day program operations. Highlighted below are several examples of
strategies and guidance developed in FY1988.
New Volatile Hazardous Air Pollutants (VHAP) Penalty Policy
On March 3, 1988, the Office of Air and Radiation's (OAR) Stationary Source Compliance
Division (SSCD) and OECMs Air Enforcement Division (OECM-Air) jointly issued a new appendix to
the Clean Air Act Civil Penalty Policy entitled "Appendix VI — Volatile Hazardous Air Pollutants
(VHAP)." This appendix assists in determining the gravity component of the civil penalty
settlement amount for cases enforcing the National Emission Standard for Equipment Leaks, 40 C.F.R.
Part 61, Subpart V. (For farther information contact OECM-Air)
22
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FY1988 Enforcement Accomplishments Report
Policy on Contractor Listing fpr Asbestos Renovationand Demolition Companies
On March 11,1988,'SSCD and OECM-Air issued guidance on "Listing Asbestos Demolition and
Renovation Companies Pursuant to Section 306 of the Clean Air Act." Under this section, the Agency
may place a violator of the Clean Air Act on a government-wide list of violating facilities, thereby
preventing it from contracting with the government, ' (For further information contact OECM-Air)
New Source Review Guidance '" ' ' ' '..
Cm July 15,1988, SSCD and OECM-Air issued "Procedures for EPA* to Address Deficient New
Source Permits Under the Clean Air Act" to assist in the issuance of permits for major new sources and
major modifications under both the Prevention of Significant Deterioration program and the
nonattainment New Source Review program. The guidance sets forth procedures to be followed .when
permits are issued either directly by EPA, or EPA-approved state programs, or by states pursuanHo
delegations of authority from EPA. An appendix of model forms is also included. (For further
information contact OECM-Air)
Enforcement Action Settlement Guidance for Actions inJMonattaminent Areas
v
On November 23,1987, OAR and OECM issued guidance entitled "Settling Enforcement Actions
in Clean Air Act Nonattainment Areas" Against Stationary Sources Which Will Not Be In
Compliance by the Applicable Attainment Date." Where a source violates emission limitations for
pollutants in nonattainment areas, this policy observes that, iri some cases, shutdown may be the
appropriate relief. For other cases, the policy lists factors*to consider when an expeditious
compliance schedule going beyond the attainment date may be appropriate. (For further information
contact OECM-Air) ''-..,'.'"''• ' ' - .,-''*. '.."''
State Implementation Flan (SIP) Enforcement Guidance . ,
On December 31, 1987, SSCD and OECM-Air issued "Guidance on Evaluating Clean Air Act
Enforcement of State Implementation Plan Violations Involving Proposed State Revisions" to assist in
deciding on appropriate enforcement responses where SIP revisions are pending. The. guidance
suggested to the Regions how to apply the criteria in developing enforcement cases and included a
case evaluation form to be used for all cases involving SIP revisions. (For further information contact
-OECM-Air) ••• - • ' • ' ' - ;'_ ^_ '- '• . . ' . . " ." '".
Sulfur Dioxide Continuous Compliance Strategy "
• * * '
On July 5,1988, SSCD issued the Sulfur Dioxide (SO2) continuous compliance strategy which
provides State and local agencies and EPA Regional Offices with guidance on making decisions about
SO2 noncompliers. It divides SO2 noncompliers into two groups,, the first consisting of marginal
noricompliers requiring additional information before initiating an enforcement action. The second
group are sources significantly out of compliance for which an enforcement action should be
considered. Numerical percentages related tor degree of noncompliance are used to indicate the
appropriate type of follow-up action. -The strategy is specifically designed not to impose any
additional burdens; father, its purpose'is to ensure consistent, efficient and effective utilization of
existing compliance resources. Current regulatory requirements are used to determine excess emissions,
averaging time, monitoring methods and degree of violation. (For further information contact SSCD-
OAR)
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FY1988 Enforcement Accomplishments Report
Compliance Monitoring Strategy for FY1989 - Air
The Compliance Monitoring Strategy (CMS), issued in March 1988, is the culmination of a
multi-year effort that focused on addressing important issues in the air compliance program, and will
replace the Inspection Frequency Guidance in FY1989. The CMS emphasizes flexibility with
accountability and recommends developing a comprehensive inspection plan that identifies all
sources or source categories committed to be inspected by the State agency during their fiscal year. It
also provides State agencies with the flexibility to address significant local air pollution concerns
such as citizen complaints, odor problems, and other localized toxic, hazardous, and nuisance issues.
(For farther information contact SSCD - OAR)
Revised Asbestos MpSr^AP Strategy
On March 31,1988, SSCD and OECM-Air issued a revised strategy for targeting EPA and State
asbestos NESHAP compliance monitoring inspections. Rapid growth in the number of notifications of
sites undergoing demolition or renovation prompted the agency to revise the inspection strategy to
place priority for inspections on demolition and renovation contractors. Inspection efforts focused on
contractors should result in a more resource-effective enforcement program. The strategy also contains
a new section on outreach that describes methods of communication with the regulated community.
Other additions include new appendices on identifying non-notifiers, EPA technical assistance,
generic Section 113(a) and temporary restraining orders, and the finalized guidance on contractor
listing (see discussion above). (For further information contact OECM-Air)
Cle^n Watered National Municipal Policy
The primary National Municipal Policy (NMP) goal during FY1988 was to assure successful
implementation of the Policy by the July 1988 deadline. The NMP requires compliance with Final
Effluent Discharge Limitations (FED, with or without Federal funding, by July 1, 1988. It was
critical that the Agency demonstrate its seriousness in enforcing against violations of established
schedules, other noncompliance with the Policy's objectives, and Clean Water Act requirements for
municipals. Following an EPA review of State and Regional actions in the Spring, and supported by
construction data collected in a survey performed by Association of State and Interstate Water
Pollution Control Administrators (ASIWPCA), the Office of Water Enforcement and Permits
(OWEP) and OECM continued to press for the settlement (or filing) of cases as part of the FY1987
Enforcement Strategy directed at the worst cases. The heart of the Strategy was a list of candidates
for referral, including Federal overfile actions. Since the NMP Enforcement Strategy took effect in
1984,141 major Federal and State cases .have been referred and 108 were settled. During FY1988, the
number of NMP majors (approximately 1,500) not under enforceable schedules was reduced from 23 to
14 (mainly unresolved marine variance request cases). The number of majors that had achieved
compliance doubled and reached 1,055 (this included 90 which were expected to meet Final Effluent
Limits by October 1,1988). Of those majors that did not achieve compliance by July 1,1988,195 were
on judicial schedules, 40 on administrative orders, 178 were in the referral process and 10 301(h)
decisions were pending. (For further information contact the Office of Water Enforcement and Permits
(OWEP) in the Office of Water (OW))
NPDES Pretreatinent Compliance Monitoring
and Enforcement Guidance goftware
The Office of Water Enforcement and Permits has developed and distributed software to
Publicly Owned Treatment Works (POTWs) with approved pretreatment programs for use in
managing their enforcement programs. This software, which is IBM compatible, can be used to
manage pretreatrnent program data on industrial users including limits, effluent discharge reports,
compliance schedules, control mechanisms and enforcement actions. With appropriate data input,
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FY 1988 Enforcement Accomplishments Report
reports. There are no requirements that pretreatment programs use this software; it is provided as an
optional tool which can significantly ease and improve pretreatment implementation. Although the
software was intended for POTWs, Regions and States may find it useful to track industrial users for
which they are control authorities. (For further information contact OWEP - QW) • •>• •
'.' •' . .. '.. -s > ' ......
CWA, Pretreatmeni Permits and Enforcement Tracking System . - .
The Pretreatment Permits and Enforcement Tracking System (PPETS) was fully implemented in
FY1 988 with data now in the system for approximately 65% of approved pretreatment programs.
This data is being used to identify, pretreatment programs which are failing to 'adequately implement
significant portions of their approved programs, and to develop information on trends .and problems in
national program implementation. Data from the system is helpful in identifying enforcement
candidates and assessing overall compliance. Information developed from PPETS to date indicates
that approximately 43% of POTWs are failing to adequately implement at least one significant
component of their pretreatment program and may be subject to future administrative or judicial
enforcement (For further information contact OWEP - QW)
CWA Organic Chemicals. 'Plastics, and -Synthetic Fibers Initiative
On December 30, 1987,,OWEP issued guidance to both EPA Regional Water Division Directors
and specific Industrial Users (Ills) outlining the basic responsibilities and activities required of each
to ensure that lUs achieve compliance with the Organic Chemicals, Plastics, and Synthetic Fibers
(OCPSF) regulations. In the guidance, Regional Water Offices were provided with a Regional listing
identifying the name and address of each OCPSF IU subject to the standards followed by the name
and address of the POTW to which it discharges. With this information. Regional Offices were
instructed to identify the control authority with the primary pretreatment oversight responsibility.
This control authority is also expected to establish compliance schedules for affected Ills. In
addition, a listing of these lUs was sent to each State that has pretreatment program authority.
Additional guidance was sent to Regional Water Management Division Directors oh August 8, 1988, to
provide further information on the implementation of the OCPSF Pretreatment Standards. (For
information contact'' OWEP -OW) ,» . > • • ' ".''""
\ ' ' ' f
FIFRA Disinfectant Enforcement Initiative , ^
In June 1988, EPA initiated ah investigation of companies making false claims on behalf of their
products' effectiveness as a disinfectant against human pathogens, in particular the AIDS virus, in
violation of FIFRA. Most of these disinfectants are sold for use oh hospital and dental equipment.
''The Agency received complaints from the medical community that these claims were appearing in
advertising and product literature which was distributed by these companies to their customers. As a
result of its investigations, the Agency issued seven civil complaints against companies making these
false claims. The companies involved were: Georgia Steel and Chemical Company. Colgate HoyL
Sporicidin International. Surgikos, Inc.. Dixie USA IncL Qptiyision Corporation, and Airwick
Professional Products. Georgia Steel and Chemical Company, Colgate. Hoyt, Surgikos,. Inc., and
Optivisipn Corporation have resolved their cases with the Agency and have agreed to cease making
these claims. In addition, Georgia Steel and Chemical Company, Colgate Hoyt, and Surgikos, Inc.,
paid civil penalties of $1,820, $5,000, and $10,000, respectively, for these violations.
The Sporicidm case went to hearing before an EPA Administrative Law Judge (ALJ) in May,
1988. An initial decision rendered by the ALJ on November 1, 1988, upheld the agency's civil
complaint against Sporicidin International for promoting two of its disinfectant products as effective
against the AIDS and Hepatitis B viruses in violation of Section 12(a)(l)(B) of FIFRA. The judge
also upheld the maximum penalty amount of _$5,000 for each violation for a total penalty assessment
.of $10,000. Sporicidin filed a motion appealing the decision with EPA's Chief Judicial Officer on
November 28, 1988. The result of this appeal is pending. (For further information contact the Office
of Compliance Monitoring (OCM) in the Office of Pesticides and Toxic Substances (OPTS))
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FY 198S Enforcement Accomplishments Report
TSCA Section 313 Notices of Noncompliance and Civil Penalty Initiative
Although the failure to submit a toxic chemical release form is the most serious violation and
the primary focus of the Agency's inspection effort under Section 313 of the Emergency Planning and
Community Right-to-Know Act (EPCRA), the Agency has also instituted enforcement actions for the
filing of erroneous reports The first group of Notices of Noncompliance (NONs) totaled 553 and was
issued on September 16, 1988, to facilities which submitted incomplete or erroneous forms. Since
September, an additional 1,070 facilities have been issued NONs, most of them for incorrect
reporting. Failure to correct these errors may subject these facilities to administrative penalties.
On December 16, 1988, EPA issued civil complaints to 25 companies that failed to report their
toxic chemical release information on July 1, 1988, as required by EPCRA. The proposed civil penalty
assessments in the complaints are dependent on the company's size, the number of chemicals that
should have been reported, and the quantities of chemicals which were manufactured, imported,
processed or used. EPCRA authorizes EPA to assess penalties up to $25,000 per day per chemical for
failure to report chemical emissions. (For further information contact OCM - OPTS)
TSCA Section 5 Enforcement Response Policy
On August 5, 1988, EPA revised its enforcement response policy for premanufacture notification
(PMN) violations under Section 5 of TSCA which requires manufacturers and importers to notify EPA
90 days prior to manufacturing or importing new chemical substances in the United States, and supply
the Agency with health and environmental effects information. The revision is a result of the Office
of Pesticides and Toxic Substances ongoing program to review and update such policies as it gains
experience in specialized compliance programs under TSCA. This new enforcement response policy for
PMN violations bases penalties on the potential for harm to health and the environment,
distinguishing between chemicals of imminent hazard or serious concern and those which pose little
or no risk. The severity or dollar amount of the penalty EPA will assess to PMN violators depends on
the overall seriousness of .the violation. A gravity-based penalty matrix has been developed to
evaluate the circumstances, extent and nature of the PMN violation, and to classify the violation as
major, significant or minor. The policy treats violations involving genetically engineered
microorganisms as major violations regardless of the amount of substance involved. It also applies
maximum penalties, up to $25,000 per day in violation, to violations involving an imminent hazard
situation. {For further information contact OCM- OPTS)
Registration pf Pesticides and Active Ingre.dient-Piroflucfog Establishments Reports
On September 8, 1988, EPA published in the Federal Register a final rale entitled "Registration
of Pesticide and Active Ingredient-Producing Establishments, Submission of Pesticide Reports". This
rule expands current regulations for establishing registration and reporting requirements for chemicals
that are used both as pesticides and non-pesticides. These chemicals, known as multi-use chemicals,
place the responsibility for regulatory requirements on establishments that have actual or
constructive knowledge that their multi-use products are being used as pesticides. The rule
eliminates the establishment registration requirement for customer .blending establishments.
Customer blenders are establishments that blend pesticide mixtures to the specifications of a
customer, usually a farmer. The rule also changes Ihe date for filing annual pesticide production
reports from February 1 to March 1. (For further information contact OCM - OPTS)
TSCA Good Laborator Practie Standards
On December 28, 1987, EPA published in the Federal Register the proposed revisions to the
F1FRA and TSCA Good Laboratory Practice Standards {GLPs) (52 FR 48920). The FIFRA and TSCA
GLPs were originally published in the Federal Register of November 29, 1983, (48 FR 53446), and were
codified as 40 CFR 160 and 792 respectively.
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FY 1988 Enforcement Accomplishments Report
EPA is proposing to expand the scope of the FIFRA and TSCA GLPs in order to ensure the
quality and integrity of test data submitted to the Agency in conjunction with a pesticide product
registration, other marketing and research permit, or submitted to the Agency in accordance with a
TSCA Section 4 or 5 rule or order. The expanded scope of the proposed FIFRA GLPs will require
compliance for such disciplines of testing as ecological effects, chemical fate, residue chemistry, and,
i as required by 40 CFR 158.160, product performance (efficiency testing). EPA is proposing that both
the FIFRA and TSCA GLPs require compliance for testing conducted in the field, and is also proposing
to amend the FEFRA arid TSCA GLPs to incorporate many of the changes made by the Food and Drug
Administration (FDA) to its regulations (52 FR 33768; September 4, 1987). EPA has" conformed to
FDA's revised regulations wherever possible in order to minimize the regulatory burden which might
arise from conflicting requirements. The proposed FIFRA and TSCA GLPs differ from the FDA only to
the extent necessary due to statutory responsibilities, with the most significant differences between
; the FDA and EPA are in the scope of "the testing (i,e., environmental studies and efficacy studies, in
addition to health effects testing) and test systems" Cue., plants, soils, 'and microorganisms, in
addition to animals) affected. {For further information contact OCM - OPTS) , r
*'«'-' * ,
TSCA Section 6jfl Monitojring Strategy An^gndment
The Second Compliance Monitoring Strategy Amendment for* TSCA Section 6(e) -
Polychlorinated Biphenyls, is an addition to the previously issued PCB Compliance Monitoring
1 .Strategy as amended. This second amendment emphasizes targeting inspections at approved PCB
disposal sites on a periodic basis as well as inspections at storage and intermediate handling
facilities: .(For further information contact OCM -OFTS) ' •"
CERCLA Section 106 Enforcement
• •". "" I * . i ,
QERCLA Enforcement Incentives/Disincentives Workgroup . '
At a meeting of senior Agency and DOJ enforcement officials held in February 1988, methods to
increase the effectiveness of the Agency's use of CERCLA Section 106 authorities were explored. As a
follow-up to this meeting, a workgroup was established to explore EPA's policies and practices to
assure the proper balance of incentives to settle and disincentives not to settle for Potentially
Responsible Parties (PRPs) at Superfund sites. The workgroup recommended a fundamental approach
to the Agency's use of unilateral Section 106 Administrative Orders when negotiations have been
unsuccessful. Briefly, the workgroup concluded that the use of unilateral Administrative Orders will
frequently provide a strong incentive to settlement; and recommended that there should be a bias in
favor of issuance of a unilateral Administrative Order where some or all of the PRPs are unwilling to
enter into settlements. (For further information contact OECM-Waste) - •> • >. . , i •
,. - - '-T.'.; .. ' ' • •'V'i.-:: -
CERCLA Section 1Q6 Initiative - T- :r,.
. •_ •• v ' ' '"" .
In April 1988, the Administrator requested that each Region identify one or more Section 106
' cases for a unilateral enforcement action in an effort to increase the degree of PRP involvement in site
clean up. OECM and the Office of Solid Waste and Emergency Response (OSWER) undertook ari
initial screening of potential sites, looking especially at NPL sites where Records of Decision (RODs)
•were signed or would be signed In the^riear term. This effort resulted in identification of 22 sites for
Section 106 referrals. At the end of FY1988, four of these cases have been settled and two cases have
been referred. Of the remaining sixteen sites, several are in the final stages of settlement
negotiations, and several have had the projected ROD signature date delayed, and thus are not yet
ready for referral. In addition, fourteen Section 106 unilateral administrative orders for Remedial
Design/Remedial Action were issued in FY1988. This total is more than twice the total issued since
the beginning of the CERCLA program. (For further information contact OECM-Waste) - \
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1988 Enforcement Accomplishments Report
Guidance on Use and Enforcement of CERCLA InJEonnationJUequests
and Administrative Subpoenas
The above-referenced guidance was issued by OECM on August 25, 1988. The document provides
guidance on the use of EPA's information gathering authority under CERCLA Section 104(e)
information requests and Section 122{e)(3)(B) regarding administrative subpoenas. (For further
information contact OECM-Waste)
Guidance on Potentially Responsible Party Participation
in Remedial Investigations and Feasibility Studies
This guidance sets forth the policy and procedures governing PRP participation in Remedial
Investigations/Feasibility Studies (RI/FS) under CERCLA. It discusses the circumstances under
which PRPs may conduct the RI/FS; the development of enforceable agreements governing Rl/FS
activities; oversight of PRP activities; correction of deficiencies and dispute resolution; and PRP
participation in Agency RI/FS activities. (For further information contact the Office of Waste
Programs Enforcement (OWPE) in the Office of Solid Waste and Emergency Response (OSWER))
Cost Recovery gtrategy
This guidance sets forth the Agency's priorities and objectives for the Superfund Cost Recovery
program. The guidance encourages maximizing the return of revenues to the Superfund; initiating
necessary litigation or resolve ripe cases for cost recovery within strategic timeframes, but no later
than the time provided under the statute of limitations; encourage PRP settlement by implementing
an effective cost recovery program against non-settlers (recalcitrants); and, effective use of
administrative authorities and dispute resolution procedures to resolve cases without unnecessary
recourse to litigation. (For further information contact OWPE-OSWER)
Cost Recovery Arbitration Regulations
On August 4, 1988, a proposed regulation providing arbitration procedures for small Superfund
cost recovery claims was published in the Federal Register for public comment. The regulation, when
final, will implement Section 122(h)(2) of SARA, which authorizes EPA to use arbitration as a
method of settling Section 107 cost recovery claims when the total response costs at the site do not
exceed $500,000, excluding interest (For further information contact OECM-Waste)
CERCLA EPA/State Relations
Guidance onjunding CERCLA SJate Enforcement Actions at NFL Sites
This guidance discusses the conditions States must agree to in applying for and receiving
cooperative agreement funding to conduct enforcement related activities including PRP searches,
negotiating administrative and judicial enforcement, and oversight of PRPs. (For further information
contact bwPE-OSWER)
nt of EPA^tateJWQrkgroup
OSWER established a workgroup on State enforcement with membership including
representatives from EPA headquarters and Regions, States, DOJ, and the National Association of
Attorneys General. The result of the initial meetings has been to establish State-lead enforcement
sites as a recognized category of NPL sites. One policy developed through the workgroup is the
guidance on counting State-lead enforcement sites toward the section 116(e) mandate. The workgroup
is focusing on a better partnership between States and the Federal government. (For further
information contact OWPE-OSWER)
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1988 Enforcement Accomplishments Report
Federal Facility Hazardous Waste Compliance Initiative
In FY1988, the Office of Solid Waste and Emergency Response (OSWER) created a special task
force to work with IPA regions. States and other EPA offices to bring Federal facilities into
compliance with the hazardous waste statutes. The task force identified Federal facilities of
concern, established policies and strategies for carrying out enforcement and compliance monitoring at
these facilities, and established program planning and management accountability systems to
allocate resources to address these facilities and track progress in addressing them.
The task force published in the Federal Register the Federal Agency Hazardous Waste
Compliance Docket. The Docket is a computerized data base defining the universe of potential
Federal facility hazardous waste problems. The Docket and biannual update required extensive
coordination, both within the EPA and with over twenty other Federal agencies (resulting in a
Docket of over WOO facilities), and.set into motion a series of statutory deadlines for the assessment,
evaluation, and potential listing of Docket facilities on the National Priorities List (NPL). The
Task Force developed comprehensive guidance for Federal agencies and EPA Regions to use in
assessing facilities for the NPL, resulting in the evaluation of over 100 facilities for a special NPL
Update.
Policy development included a comprehensive enforcement strategy defining the range of
enforcement options available to EPA under RCRA and CERCLA, with criteria for Regions to consider
in selecting an approach. Procedures issued to the Regions explained when and how to elevate
compliance disputes to keep the enforcement process moving. Also, model agreements for Superfund
and RCRA were successfully negotiated with the Departments of Defense and Energy. The model
agreements, designed to expedite site specific clean up negotiations, contain key provisions for
enforceability, assessment of stipulated penalties for failure to comply with the agreement, and
dispute resolution procedures. (For further information contact OWPE-OSWER)
Off-Site Policy and Rule
On December 13, 1987, OSWER issued the Off-Site Policy describing the procedures to be
observed when a response action under CERCLA or Section 7003 of RCRA involves off-site treatment,
storage or disposal of CERCLA waste. The procedures also apply to actions taken jointly under
CERCLA and other Agency statutes. The purpose of the Off-Site Policy is to avoid CERCLA waste
disposal contributing to present or future environmental problems by directing these wastes to
facilities determined to be environmentally sound. The Off-Site Rule was published in the Federal
Register on November 29,1988. The rule, unlike the policy, does not cover actions taken under Section
7003 of RCRA. OFor further information contact OWPE-OSWER)
Revised RCRA Enforcement Response Policy
The RCRA Enforcement Response Policy (ERP) provides guidance to the Regions and States on
how tOiClassify violations along with a-description of appropriate enforcement responses for each
category of violation. The ERP also establishes tirneframes for response to violations. The revised
ERP, effective on October 1,1988, acknowledges that for some complicated cases more time may be
required and is therefore "appropriate." The major change in the ERP is to the definition of high
priority violators (HPV) where an HPV designation will be based heavily on case specific
information. (For further information contact OWPE-OSWER)
Surface Impoundment Retrofitting Strategy
RCRA Section 3005 (j)(l) requires surface impoundments that were in existence on November 8,
1984, and qualifying for the authorization to operate under interim status, to be retrofitted to meet
the minimum technological requirements of Section 3004(o)(l)(A), or.cease the receipt of hazardous
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1988 Enforcement Accomplishments Report
waste unless the owner or operator had obtained an exemption from these requirements. To implement
and enforce these requirements, OWPE prepared a sample letter for notifying owners and operators of
the requirements; a Federal Register notice explaining the requirements (June 30, 1988); and an
enforcement strategy (September 29, 1988). (For further information contact OWFE-QSWTER)
Administrative Record Guidance
RCRA - Hearing procedures for unilateral RCRA Section 3008(h) corrective action orders were
promulgated in FY1988, requiring that EPA prepare an administrative record supporting the order at
the time of issuance. This requirement is critical to the operation of the hearing procedures and any
subsequent judicial review.
Superfund - OSWER has developed a strategy on administrative records for selection of
response actions which included training and assessment of all ten Regions to ensure the compilation
of adequate records. The strategy also includes the issuance of a guidance document to be used by the
Regions in draft form pending publication of proposed regulations on administrative records. The
regulations are slated to be Subpart I of the revised NCP. (For further information contact
OWPE-OSWER)
fjafoural Gas Pipeline Enforcement Strategy
This strategy outlines how EPA's RCRA and TSCA enforcement programs are to coordinate
enforcement activities with respect to natural gas pipelines contaminated with PCBs. (For further
information contact either OWPE or the Office of Compliance Monitoring in OPTS)
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FF1988 Enforcement Accomplishments Report
SB,'
IV. MEDIA SPECIFIC ENFORCEMENT PERFORMANCE;
RESOLVING SIGNIFICANT NONCOMPLIANCE
The Strategic Planning and Management System (SPMS) %
EPA uses the Strategic Planning and Management System (SPMS) to ensure that • EPA and State
managers identify the highest priority environmental problems and, establish accountability for
resolving those problems.,For enforcement, EPA and the States have identified a core group of
management indicators to track progress in each media including inspections, compliance rates,
identifying and resolving significant noncompliance (SNO, and numbers of civil and criminal case
referrals and administrative orders. During the Agency's annual operating guidance development
process, media compliance and enforcement programs identify a category(s) of violations determined
to be the most environmentally significant {SNO. At the beginning of each fiscal year, EPA and the
States review the known-universe of. SNCs and establish joint commitments to address them during
the year. The following program summaries indicate EPA and State progress in resolving SNC over
the past several years.
Air Enforcement - Stationary Sources v. , • "
The air enforcement program has defined SNC as a violation of State Implementation Plan
(SIP) requirements in areas not attaining primary ambient air quality for the pollutant for which,the
source is in violation, violations of New Source Performance Standards (NSPS), and violations of
National Emission Standards for Hazardous Air Pollutants (NESHAPs). Also included are
violations of Prevention of Significant Deterioration (PSD) and nonattainment new source review
(NSR) requirements. At the beginning of FY1988, EPA and the States identified 703 violating
facilities as SNCs, including 168 that had enforcement action initiated against them prior to
FY1988. At year's end, 261 of the SNCs had been brought back into compliance, 85 were subject to an
enforceable compliance schedule, 221 were subject to a formal enforcement action, and 136 were
unresolved. In addition to addressing those SNCs identified at the beginning of the Fiscal Year, EPA
and the States identified an additional 599 new significant violators, of which 215 were either
returned to compliance or were placed on an enforceable schedule leading to compliance.
CLEAN AIR ACT ENFORCEMENT
RESOLVING SIGNIHCANTNONCOMPLIANCi
(Universe: SNCs at beginning of year)
800 T
TOO..
MO.
900..
400.,
300
200
1004
FY84
FY8S
FY86
FY87
FY88
FINDING AT END OF YEAR B ADDRESSED AT END OF YEAR
Ulustratitm?
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FY1988 Enforcement Accomplishments Report
Water Act Enforcement - NPDES Executions R
The NPDES enforcement program has defined SNC to include violations of effluent limits,
reporting requirements, and/or violations of formal enforcement actions. Unlike the other Agency
enforcement programs, the NPDES program does not track SNC against a "fixed base" of SNC that is
established at the beginning of the year, rather, the program tracks SNCs on a quarterly "exceptions
list" that identifies those facilities that have been in SNC for two or more quarters without returning
to compliance or being addressed by a formal enforcement action.
During FY1988, 675 facilities were reported on the SNC exceptions list including 103 facilities
that were unaddressed from the previous year and 572 facilities that appeared on the list for the
first time during the year. Of the 675 facilities on the exceptions list, 320 returned to compliance by
the end of the year, 221 were subject to a formal enforcement action, and 134 facilities remained to be
addressed during the upcoming year..
CLEAN WATER ACT ENFORCEMENT
RESOLVING SIGNIFICANT NONCOMPUANCE
(NPDES - EXCEPTIONS LIST)
TOO
600
O 500.
400-
s 300.
N'200-
100-
FY86
FY87
FYS8
D PENDING AT END OF TflAH H ADDRESSED AT END OF YEAR
Safe Drinking Water Act Enforcement
The Public Water Supply enforcement program tracks significant noncompliance on an
exceptions basis for those public water supply systems that exceed standards for microbiological,
turbidity, and total tri-halomethane (TTHM), The Underground Injection Control program tracks on
an exceptions basis Class I, II, III, and V wells that failed mechanical integrity, exceeded injection
pressure, or received unpenrutted injection material.
The Safe Drinking Water Act Amendments of 1986 provided EPA with significant new
administrative enforcement authorities, and in the past two years the EPA Regional offices have
taken 413 such actions.
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FY1988 Enforcement Accomplishments Report
RCRA Enforcement - .' •• /i ' * •
Since EY1986, the RCRA SNC definition has focused on land disposal facilities (LDFs) with
Class I violations of groundwater monitoring requirements, financial responsibility requirements, or
closure /post-closure requirements. (Prior to FY1986, the RCRA program defined SNC as a Class 'I
violation by a~"major handler.") The RCRA .definition .was expanded in FY1988 to include any
Treatment, Storage, and Disposal Facility >{TSDF) in violation of a corrective action compliance
schedule. In FY1988, the program identified 674 land disposal facilities "as SNGs, and at the end of
the year 85 had been returned to compliance, 253 were on compliance schedules, and 328 had an
administrative or judicial complaint pending against them,. • . K i
RCRA ENFORCEMENT
RESOLVING SIGNIFICANT NONCOMPUANCE,
(Universe: SNCs atbeginnning of year)
800
700 J
600 1
400
N *»
C 200 i
' 100
FYS4
FY8S
FYW
FY88
D FINDING AT END OF YEAR
ADDRESSED AT END OF YEAR
niustra±ion9
Saperfund Enforcement
The Agency dramatically increased the level of Superfund judicial enforcement activity in
FY1988 with 114 civil cases referred to DOJ seeking either recovery of past costs, injunctive relief, or
site access. In addition, one criminal case was referred to DO), The program issued 224
administrative orders, and Remedial Design/Remedial Action negotiations were completed for 96
sites. Under Section 107, the Agency referred 56 cases seeking recovery of past costs valued at $126
million, and response actions to be undertaken by Potentially Responsible Parties (PRPs) under
Section 106 are valued at $470 million. . • -"
Toxic Substances Control Act CTSCA) Enforcement
• • The TSCA program defines SNC as violations of PCB disposal, manufacturing, processing,
distribution, storage, record-keeping, or marking. The definition also includes Asbestos-in-SchooI
violations, import certification and recordkeeping violations, and testing or premanufacturing"
notification violations. At the beginning of FY1988, the Regions had 685 open SNC cases, and by the
end of the year 583 cases were closed and 102 remained open. During the year EPA identified 519 new
SNCs based on pre-FY1988 inspections, with 420 having enforcement action taken. Based on FY1988
inspections, EPA identified 377 new SNCs, with 228 having enforcement action taken.
33
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FY 1988 Enforcement Accomplishments Report
APPENDIX:
ENFORCEMENT DATA
A.
{S&l ^
-------
FK JP55 Enforcement Accomplishments Report
TSCA ENFORCEMENT
RESOLVING SIGNIFICANT NONCOMPLIANCE
(Universe: SNCs at beginning of year)
N
800
TOO
600
500
400
300^
200
100.
FY84
FY85
FY86
FY87
FY88
D PENDING AT END OF YEAR
ADDRESSED AT END OF YEAR
Illustration 10
Federal Insecticide,, Fungicide, and Rodenticide Act (FIFRA) Enforcement
The FIFRA program has defined SNC to include pesticide misuse violations. Reflecting the
major role of the States in enforcing these types of violations, the EPA Regions and each of their
States agree on significant violation categories given patterns of use unique to each State, and they
establish timeframes for investigating and taking enforcement actions against these significant
violations. In FY1988, EPA and the States addressed 136 SNCs, and 41 SNCs were awaiting action at
the end of the year.
FIFRA ENFORCEMENT
RESOLVING SIGNIFICANT NONCOMPLIANCE
(Universe: SNCs at begininning of year)
300
O 250
F 200
S "°
N 100
C SO
S n
FY86
FY87
FY88
D PENDING AT END OF YEAR
ADDRESSED AT END OF YEAR
Illustration 11
34
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EPA CIVIL REFERRALS TO THE DEPARTMENT OF JUSTICE
FY1972 TO FY1988
AIR
WATER
HAZARDOUS WASTE
TOXICS/PESTICIDES
TOTALS
AIR
WATER
HAZARDOUS WASTE
TOXICS/PESTICIDES
TOTALS
FY72
0
1
0
0
1
FY81
66
37
14
1
118
FY73
4
0
0
0
4
FY82
36
45
29
2
112
FY74
3
0
0
0
3
FY83
69
56
33
7
165
FY75
5
20
0
0
25
FV84
82
95
60
14
251
FY76
15
67
0
0
82
FY85
116
93
48
19
276
FY77
50
93
0
0
143
FY86
115
119
84
24
342
FY78
123
137
2 •
0
262
FY87
122
92
77
13
304
FY79
149
81
9
3
242
FY88
86
123
143
20
372
FY80
100
56
53
1
210
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EPA ADMINISTRATIVE ACTIONS INITIATED (BY ACT)
FY1972TQFY1988
CAA
CWA/SDWA
RCRA
CERCLA
FIFRA
TSCA
TOTALS
CAA
CWA/SDWA
RCRA
CERCLA
FIFRA
TSCA
TOTALS
FY72
0
0
0
0
860
0
860
FY81
112
562
159
0
154
120
1107
FY73
0
0
0
0
1274
. 0
1274
FY82
21
329
237
0
176
101
864
FY74
0
0
0
0
1387
0
1387
FY83
41
781
436
0
296
294
1848
FY75
0
738
0
0
1614
0
2352
FY84
141
1644
554
137
272
376
3124
FY76
210
915
0
0
2488
0
3613
FY85
122
1031
327
160
236
733
2609
FY77
297
1128
0
0
1219
0
2644
FY86
143
990
235
139
338
781
2626
FY78
129
730
0
0
762
1
1622,
FY87
191
1214
243
135
360
1051
3194
FY79
404
506
0
0
253
22
1185
FY88
224
1345
309
224
376
607
3085
FY80
86
569
0
0
176
70
901
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EPA CRIMINAL ENFORCEMENT
FY1982TOFY1988
FY82
REFERRALS TO DOJ
CASES SUCCESSFULLY PROSECUTED
DEFENDANTS CHARGED
DEFENDANTS CONVICTED
o MONTHS SENTENCED
o MONTHS SERVED
o MONTHS PROBATION
20
7
14
11
FY83
26
12
34
28
534
FY84
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
1410
FY88
59
24
97
50
278
185
1284
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STATE ENVIRONMENTAL AGENCY
JUDICIAL REFERRALS AND ADMINISTRATIVE ORDERS
FY1985 TO FY1988
ADMINISTRATIVE ORDERS
FIFRA
WATER
AIR
RCRA
TOTAL
JUDICIAL REFERRALS
WATER
AIR
RCRA
TOTAL
FY85
8899
2936
448
459
12742
FY85
137
182
82
401
FY86
6055
2827
760
519
10161
FY86
221
162
25
408
FY87
5922
1663
907
613
9105
FY87
286
351
86
723
FY88
5078
2887
655
743
9363
FY88
687
171
46
904
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