Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
Historical Enforcement and Compliance Data on the Electric Power
Generation, Transmission and Distribution Industry
US Environmental Protection Agency
Office of Land and Emergency Management
June 2019
1

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
To understand the experience of courts settlements and judgments, EPA looked at
compliance and enforcement in the Electric Power Generation, Transmission and Distribution
industry. EPA believes that compliance assistance, monitoring, and enforcement are important
components of the regulatory framework. Through inspections, compliance monitoring can
identify noncompliance at regulated facilities. Enforcement actions provide legal instruments to
ensure correction of deficiencies to achieve compliance with environmental requirements.
Compliance and enforcement actions have certain functions which EPA considers particularly
pertinent to the risk determination for rulemaking under CERCLA § 108(b). First, through
negotiated agreements, EPA can ensure that the responsible party carries out or pays for the
cleanup if noncompliance causes release of a hazardous material. Second, enforcement actions
can compel a responsible party to return to compliance through instruments such as settlements
and orders. Third, the prospect of financial penalties that can accompany these enforcement
instruments can encourage compliance.
EPA obtained data from the EPA Enforcement & Compliance History Online (ECHO)
system and provide a review of federal enforcement from FY1973 through FY20171. Only those
facilities whose primary North American Industry Classification System (NAICS) codes indicate
Electric Power Generation, Transmission and Distribution industry activities (NAICS 2211)
were included in EPA's review. The data are accessed in the ECHO system through NAICS
codes.
2211 Enforcement cases over 44 years
120
100
80
60
40
73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17
¦ CAA ¦ CERCLA «CWA ¦ EPCRA ¦ FIFRA ¦ MPRSA ¦ RCRA ¦ TSCA
Figure 1
A. Enforcement of recent Electric Power Generation, Transmission and Distribution industry
federal requirements - ECHO data shows that initiatives and normal review or inspection of
facilities resulted in over 2000 federal enforcement cases in the Electric Power Generation,
1 ECHO does not include all of EPA's compliance and enforcement activity because regions are not required to
report "informal actions," and it does not consistently capture all state actions.
2

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
Transmission and Distribution industry from FY1974 and FY2017. Clean Air Act (CAA)
(62%) and Clean Water Act (CWA) (12%) cases were the most common. There are a
dramatically smaller number of cases in Resource Conversation and Recovery Act (RCRA)
(6%), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
(5%>) and Emergency Planning and Community Right-to-know Act (EPCRA) (4%). As
shown in Figure 1 above, the total number of federal enforcement cases per fiscal year
exceeds 60 in 1996, peaks at over 100 in 2004, and declines to less than 30 in 2017. Further
discussion of the enforcement details on these cases can be found in the detailed background
document "Data for Enforcement, Court Settlements and Judgments in the Electric Power
Generation, Transmission and Distribution Industry."
a.	Historical analysis of Petroleum Refining Compliance History - In 1997, the EPA
Office of Compliance Sector Notebook Project reviewed the Fossil Fuel Electric
Power Generation Industry2.
i.	Table 38 of this document provides an overview of the reported compliance
and enforcement data for this subsector of the Power Generation industry over
a period of five years (August 1990 to August 1995). A few points were found
at that time:
1.	66% of the facilities identified in the search were inspected during the
five-year period. These facilities were inspected on average six times
over the five-year period, with two enforcement actions.
2.	The ratio of enforcement actions to inspections varied between EPA
regions with no correlation to the proportion of state lead versus
federal lead actions.
ii.	Tables 39 and 40 allow the compliance history of the fossil fuel electric power
generation sector to be compared to the other industries covered by the
industry sector notebooks. Points highlighted here are:
1.	The number of inspections over the five-year period (14,210) is more
than three times the amount conducted in most other industries.
2.	The enforcement to inspection rate of six percent is one of the lower
rates for the comparison industries.
b.	Review of Enforcement Response Actions - Enforcement cases can include instances
where removal action, release reduction, or return to compliance include the removal
of contaminated media by the responsible party. Measures to remove contamination
may be required in enforcement orders under the range of environmental statutes and
are negotiated to require activities aligned with return to compliance3. In this
situation, taking an enforcement action directly reduces risks to human health and the
environment. During the period FY2012 through FY2017, 14 settled Electric Power
Generation, Transmission and Distribution Industry enforcement cases were
2	EPA Office of Compliance Sector Notebook Project, Profile of the Fossil Fuel Electric Power Generation Industry,
Sep 1997, EPA/310-R-97-007
3	These ECHO enforcement response actions are separate from the Superfund removals analyzed elsewhere. ECHO
system data includes the combined value of total enforcement financial penalties, Supplemental Environmental
Projects (SEPs), and associated compliance activity
3

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
identified as those where removal of contaminated media occurred. They are
primarily CERCLA (43%) and CWA (36%) cases, at both commercial and federal
facilities. One CAA and two TSCA cases are also included. Six of the 14 cases were
eventually tracked as Superfund Enterprise Management System (SEMS) sites, with
the largest single CERCLA expenditure currently accounted at over $95M4. The
ECHO system data includes the combined value of separate total enforcement
financial penalties, Supplemental Environmental Projects (SEPs are environmentally
beneficial projects that are not otherwise legally required, that have a close nexus to
the violations and that a defendant/respondent voluntarily agrees to undertake as part
of the settlement of an enforcement action), and associated compliance activity in
flagged removal enforcement actions. To place enforcement removal orders in
financial perspective, the sum of the 14 cases noted above were valued at over
$125M.
These federal enforcement mandated removals mitigated risks to human health
and the environment, removing soils, groundwater and sediments contaminated by a
variety of substances. The substances removed are generally categorized as metals,
hydrocarbons, and hazardous chemicals. In all, over 20K cubic yards of substances
recovered included mineral oil, coal combustion residuals (CCR), polychlorinated
biphenyls (PCB), diesel, light non-aqueous phase liquids, gasoline, volatile organic
carbons (VOC), poly aromatic hydrocarbons, perchloroethylene, and lead.
Contaminated soil removed was over 44K cubic yards, cleaning up trichloroethylene,
PCB, arsenic, chromium, copper, lead, nickel, zinc, cyclonite (RDX),
dichlorodiphenyldichloroethylene (DDE), thallium, dieldrin, heptachlor epoxide,
benzopyrene, manganese, benzofluoranthene and explosive wastes. Contaminated
waters removed and treated were over 46M cubic yards, reducing trichloroethylene,
mineral and other oil, CCR, diesel, VOC, gasoline, carbon tetrachloride and explosive
wastes. The over 270K cubic yards of removed contaminated sediments included
CCR, PCB, mercury, and dioxin.
c. Total value of enforcement settlements and judgments - Settlements and judgments
in enforcement cases can result in financial penalties, supplemental environmental
projects (SEPs), and activities required to return to compliance5. Enforcement
settlements and judgments can ensure that the responsible party conducts or pays for
cleanup, drive a return to compliance, and incentivize protection of human health and
the environment. The total enforcement costs as exact penalty, exact SEP and
estimated compliance activity values are included in the case summaries. If all
enforcement cases in the Electric Power Generation, Transmission and Distribution
Industry are considered, the total penalties are over $415M, the total SEPs are over
$129M and the total compliance activity estimates are over $34.2B.
4	Unless otherwise noted, all financial figures in this report are expressed in inflation adjusted 2017 US dollars.
5	Compliance actions ordered can include the removal of contaminated media, installation of new equipment, or
implementation of compliant processes.
4

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
B. Review of Major CERCLA and RCRA cases - Particular consideration was given to
CERCLA and RCRA regulations as relevant components of the modern regulatory
framework that applies to the Electric Power Generation, Transmission and Distribution
industry. CERCLA and RCRA regulations require the protection and restoration of facility
land resources. The first CERCLA/RCRA case in this industry was concluded in 1984,
showing enforcement applicability under the existing modern regulations. The top CERCLA
and RCRA case values for the Electric Power Generation, Transmission and Distribution
industry enforcement cases have total compliance values ranging from over $250K to $1.1B.
As shown in Figure 2 below, there have been over 224 CERCLA and RCRA cases in this
industry. The number of total CERCLA and RCRA enforcement cases per fiscal year
averages over six annually, peaks at over 14 in 2012, and declines to less than 10 in 2017.
Further information on the enforcement details on these CERCLA and RCRA cases can be
found in the detailed background data "Data for Enforcement, Court Settlements and
Judgments in the Electric Power Generation, Transmission and Distribution industry."
Electrical Power CERCLA and RCRA Enforcement Cases 1984-2017




































1
1
ll

1















1



1
t

..1 1.


























84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17
¦ CERCLA ¦ RCRA
Figure 2
a. Tennessee Valley Authority Kingston (CERCLA, 2009, $1. IB) One of four orders
from FY2000 through FY2010 at this TVA site is a CERCLA order associated with
the Kingston coal ash release. On December 22, 2008, approximately 5.4M cubic
yards of ash material were released. A containment dike surrounding part of a landfill
storing ash from power plant operations failed. The initial release of material created
a wave of water and ash that choked the adjacent Emory River, disrupted electrical
power, ruptured a natural gas line, covered a railway and local roadways, and
necessitated the evacuation of a nearby neighborhood. The material also covered
about 300 acres of adjacent parts of Watts Bar Reservoir, including most of the Swan
Pond Embayment and reservoir shorelands. The material contains naturally occurring
metals - arsenic, chromium, copper, lead, mercury, nickel, selenium, thallium,
vanadium and zinc - as well as naturally occurring radionuclides, which are
hazardous substances. The order calls for the comprehensive cleanup of the site,
5

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
including both time-critical and non-time-critical removal actions. All actions were to
be performed by the TVA with EPA oversight. TVA was also ordered to pay EPA's
past and future response costs.
b.	Duke Energy (CERCLA, 2014, $18M). Two of 19 enforcement orders from FY1997
through FY 2015 with Duke Energy are FY2014 CERCLA orders associated with the
Eden coal ash release site. Executed at the same time by both EPA Regions 3 and 4,
removal and assessment work occur in both North Carolina and Virginia. The
agreement requires Duke Energy to perform a comprehensive assessment to
determine the location of coal ash deposits and to remove deposits along the Dan
River at an estimated cost of $1 million. Additionally, Duke Energy was required to
pay EPA $2 million in past and future response costs associated with the spill6. The
release of coal ash occurred at the Dan River Steam Station north of Eden, NC. The
volume of ash released was estimated as between 3OK tons and 39K tons. In addition,
approximately 27M gallons of ash pond water waste was released. Crews removed
accessible coals ash from the Dan river and began sampling drinking water, surface
water and river sediments. To remove deposits along the Dan river in consultation
with the US Fish and Wildlife Service, EPA performed oversight of the cleanup.
Under the Order, Duke's work was subject to review and approval by EPA, in
consultation with the North Carolina Department of Environment and Natural
Resources and Virginia's Department of Environmental Quality. Once removal
activities are complete, Duke is required to asses any remaining contamination to
determine whether additional actions may be needed to protect human health and the
environment.
c.	Puerto Rico Electric Power Authority (PREPA) Palo Seco (CERCLA, 1997, 2009 &
2017, $5.8M) In three CERCLA cases over 20 years, enforcement, consent and cost
recovery orders involved the performance of a removal action to address groundwater
PCB contamination found at several areas. The work included delineation and
identification of a PCB-contaminated oil layer in soils and the sampling to determine
the adequacy of the removal activities to be performed. Although total cost recovery
of only $1M was ordered from PREPA in 2017, total inflation adjusted compliance
costs were estimated at $4.8M. According to an EPA OIG report7 on multimedia
enforcement activity, in June 1999 EPA settled with Puerto Rico Electric Power
Authority to bring all its plants into compliance with all environmental statutes. The
settlement resulted in $1.5 million in penalties, $4.5 million in SEPs, and the Power
Authority spending over $200 million to comply with the agreement. It is not clear
what portion of this case were CERCLA or RCRA violations.
d.	Fitchburg Gas & Electric Light (FG&E) (CERCLA, 2002, $2.3M) An FY2002
Consent agreement required a site cleanup of Asbestos, Mercury and PCB
contaminated soil. This is one of only two EPA enforcement cases at this site in
FY2003, the other was for TSCA PCB violations. Two transformers needed to be
properly dated and stored for no more than 30 days prior to EPA notification, and
disposed within a year. These violations were discovered by FG&E and voluntarily
6Case Summary: Duke Energy Agrees to $3 Million Cleanup for Coal Ash Release in the Dan River, accessed 10
Jun 2019 at https://www.epa.gov/enforcement/case~siHiimarv-diike~energv-agrees~3~minion~cleanup~coal~ash~
release-dan-river
7 EPA OIG report 2000-P-000018, EPA's Multimedia Enforcement Program, 30 June 2000.
6

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
disclosed to EPA in response to an EPA information request letter. This occurred
after a whistleblower action from a former employee, a citizen complaint to the EPA
administrator, and the impending Superfund site removal investigation.
e.	Dow Chemical - Cogen Facility (RCRA, 2005 & 2010, $2.3M) While this Dow
facility manufactures chemicals and generates hazardous waste, it also operates a co-
generation electrical power facility which has been the source of two independent
RCRA cases. In 2005, a RCRA 3013 A order for testing & reporting required $1.5M
in a Cooperative Agreement between LDEQ EPA and DOW for groundwater
monitoring and testing and protection of the public water system for the city of
Plaquemine, LA. An order in 2010 was also issued in response to other violations
found under RCRA regulations. The CAFO required Dow to pay a penalty in the
amount of $200K, implement a SEP, and perform injunctive relief. Later in FY2014,
because of communications between Dow and EPA, the SEP was removed from the
order and the penalty was increased by $80K.
f.	Northern Indiana Public Service Company (NIPSCO) Bailly Generating Station
(RCRA, 2005, $1.8M) NIPSCO and EPA Region 5 entered an Administrative Order
on Consent to clean up past releases under RCRA Section 3008(h). This streamlined
corrective action agreement covered the Bailly Generating Station in Chesterton,
Indiana. The facility is a coal-fired power plant and is adjacent to the Indiana Dunes
National Lakeshore. NIPSCO agreed to investigate and correct past releases of
cadmium, chromium, and lead. Additional enforcement activity has also occurred at
this site8.
g.	North Slope Borough, South Pad (RCRA, 2015, $1.3M) In FY2015, EPA Region 10
settled with the North Slope Borough (Barrow, Alaska) for violations of RCRA. This
location was a Large Quantity Generator of hazardous waste and a distribution
facility for electric power. The implementing regulations of RCRA require entities
that generate solid waste to determine if the waste is hazardous. North Slope Borough
failed to perform hazardous waste determinations on at least five separate waste
streams generated at the South Pad facility located on Nunavaaq Street in Barrow,
Alaska, approximately 0.8 mile south-southwest of the Wiley Post-Will Rogers
Memorial Airport prior to November 5, 2012. In addition, the Borough stored more
than 45K pounds of hazardous waste on the South Pad without a storage permit.
h.	Union Electric Ray Avenue Superfund Site (CERCLA, 2009, $477K) Two separate
FY2009 CERCLA cases ordered the investigation, removal and associated record
keeping for the PCB and hydrocarbon contaminated soils at the Union Electric site.
Although Superfund provided funding at this location from FY95 through FY2004,
only $40K in 2009 costs were recovered.
i.	Potomac Electric Power (PEPCO) (RCRA, 1993, $401K) At multiple facilities in
Washington DC and Virginia, over the period Jan 1987 through Jan 1990, hazardous
wastes were shipped to disposal facilities without proper manifests, transported to
other PEPCO facilities for incineration without disposal permits, and stored for
extended periods. PEPCO has faced 7 EPA enforcement cases over the period
FY1986 through FY2017, for RCRA, TSCA and CWA violations. The largest of
8 EPA Enforcement information on Northern Indiana Public Service Company Clean Air Act Settlement accessed 10
Jun 2019 at https://www.epa.gov/enforcenKnt/northerfrindiana~public~service~companv-clean~air~act~settlement
7

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
these was a FY15 $4.1M CWA case for stormwater effluent violations of metals and
other pollutants discharged to the Anacostia River between 2012 and 2016.
j. Puerto Rico Electric Power Authority - Aguirre (RCRA, 2005, $368K) At the time of
both inspections, PREPA was storing water mixed with used oil and degreaser from
its processing units in a stormwater pool. The compliance action cost for this case
was substantially higher than the federal penalty,
k. Pilgrim Nuclear Power Company (RCRA, 1998, $250K) The facility failed to
properly manage its hazardous waste including labeling, dating, storage of
incompatible wastes, storage in poor condition containers. They also failed to conduct
inspections, training and waste determinations. There have been no further recorded
EPA violations at this site since 1998.
C. Review of Relevant Criminal cases - EPA's criminal enforcement program focuses on
criminal conduct that threatens people's health and the environment. It was established in
1982 and granted full law enforcement authority by Congress in 1988. They enforce the
nations laws by investigating cases, collecting evidence, conducting forensic analyses and
providing legal guidance to assist with prosecutions. Details on eight completed cases are
presented below, and involve releases of asbestos, hydrazine, diesel fuel, detox solution,
sulphuric acid, chlorine waste and "black liquor", and tampering with emissions equipment.
Criminal prosecutions in two CAA and three CWA cases in the Electrical Generation,
Transmission and Distribution include the following:
a.	On January 29, 2019, an individual of Versailles, Ky., pleaded guilty in U.S. District
Court9 to knowingly failing to remove asbestos in a South Point, Ohio electric power
plant. The individual was the majority owner and operator of South Point Biomass
Generation LLC. He acquired the coal burning electric power plant on Collins
Avenue in South Point to convert it to a power generating plant that would use
renewable energy. The plant contained seven dormant coal-burning boilers along with
their associated piping. According to court documents, the individual commissioned
an asbestos survey on the boiler room in 2008, which revealed nearly 224,000 square
feet of materials containing asbestos. Beginning in 2011 through October 2013, he
and others removed approximately two and a half million pounds of metal from the
facility and sold it as scrap. He knew significant portions of the metal removed were
covered in asbestos. He directed others to help him cut through the asbestos labeling
on several pipes to obtain the scrap metal underneath. The asbestos was stripped from
the metal while dry and left on each of the six floors of the power plant. The
individual pleaded guilty to one count of violating the Clean Air Act.
b.	On 23 Mar 2017, Berkshire Power Company (BPC) and Power Plant Management
Services, Inc. (PPMS) were sentenced10 to pay fines and payments totaling over $7
million for tampering with air pollution emissions equipment, and PPMS was also
sentenced for submitting false information to both environmental and energy
9	DOJ press release of 29 Jan 2019 accessed on 10 Jun 2019 at https://www.iustice.gov/usao~sdoh/pr/power~plant~
owner~pleads~giiittĄ~faiting~remove~2240()0~sqiiare~feet~asbestos~demolisfaing
10	EPA Summary of Criminal Prosecution accessed 10 Jun 2019 at
https://cfpiib.epa.gov/compliance/criniinal prosecution/index.cfm?action=3&prosecution summary id=2981
8

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
regulators relating to the Berkshire Power Plant ("the Plant") in Agawam, Mass. In
May 2016, BPC (owner of Berkshire Power Plant) and PPMS (the Plant manager)
pleaded guilty to felony charges that they violated and conspired to violate the federal
Clean Air Act. These charges arose from air pollution monitoring equipment
tampering and related false emissions reporting between 2009 and 2011. PPMS also
pleaded guilty to violating the Federal Power Act, the first-ever criminal charges
under this statute, for making false statements to the regional power grid
administrator, ISO-New England, regarding the Plant's availability to produce power.
According to documents filed in federal court, between January 2009 and March
2011, BPC engaged PPMS to manage the Plant, including overseeing day-to-day
operations and maintenance and to act as the owner's representative for the Plant. A
PPMS employee served as the Plant General Manager and as BPC's on-site
representative. PPMS and BPC caused staff at the Plant to tamper with the Plant's air
pollution monitoring equipment to conceal the fact that the Plant was emitting air
pollutants more than permitted levels. This tampering was accomplished by
intentionally biasing the Plant's Continuous Emissions Monitoring System so it
would show lower emissions levels than were actually being produced by the Plant.
BPC and PPMS then used this inaccurate data in filing required emissions reports
with the U.S. Environmental Protection Agency (USEPA) and the Massachusetts
Department of Environmental Protection (MassDEP). The purpose of the tampering
was to avoid lost revenues that would have resulted from reducing power production
to stay within the Plant's air pollution emissions limits, or by taking the Plant out of
service to implement needed repairs of the Plant's pollution control and other
equipment. During the tampering investigation, criminal investigators also learned
that PPMS made and caused staff at the Plant to make false statements to the ISO-
New England, about the Plant's availability to produce power for the New England
grid. They also caused staff at the Plant to falsely claim to the ISO that the Plant was
available to produce power when it was not. PPMS did this to maximize the Plant's
revenues and to minimize repair expenditures,
c. On November 22, 2016, representatives of Duke Energy Beckjord LLC pled guilty in
federal court to negligent discharge of oil, in violation of the Clean Water Act. The
filed plea agreement includes a $1 million fine in addition to restitution. On August
18, 2014, Duke Energy caused a spill of approximately 9,000 gallons of diesel fuel
from its Walter C. Beckjord generating station facility in New Richmond, Ohio to the
Ohio River. The oil sheen on the Ohio River from the discharge extended for
approximately 15 miles. A Duke Energy operator transferring fuel from three
705,000-gallon capacity tanks ran the forwarding pump too long and over-filled the
two 30,000-gallon capacity above-ground fuel tanks. Diesel fuel spilled from the tank
overfill vents into a concrete secondary containment area. A valve on the secondary
containment area had been improperly left open by other Duke employees, causing
the spilled diesel fuel to escape the containment area and enter directly into the Ohio
River. The Ohio River is a source of drinking water for residents of both Kentucky
and Ohio. Because of the spill, the Northern Kentucky, Greater Cincinnati and
9

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
Louisville water supply intakes were closed on August 19, 2014. Water intakes were
reopened the next day, after water samples did not detect the diesel fuel in the
drinking water. Significant resources were expended by at least 35 government and
private sector agencies in the emergency response and clean-up related to the
discharge. Duke Energy's prompt clean-up efforts resulted in the recovery of only a
small portion of the discharged oil. To date, Duke Energy has reimbursed more than
$1.2 million to those entities for costs incurred in connection with the spill. Further,
Duke Energy has deconstructed the bulk fuel oil storage tanks involved in the spill
and no longer stores bulk fuel oil at the Beckjord facility. As part of the plea
agreement, Duke Energy has agreed to also pay $100,000 to the Foundation for Ohio
River Education, a non-profit organization dedicated to preserving the cultural,
ecological and economic value of the Ohio River through community education.
Duke Energy will also issue a written public apology in an advertisement published in
the Cincinnati Enquirer11.
d.	On December 4, 2001 an individual was indicted on one count of violating the CWA
{33 U.S.C. 1311(a) - illegal discharge of a pollutant and 1319(c)(2) - knowingly
violates} and 18 U.S.C. 2. He purchased the power plant at the former Harriman
Power and Paper Mill. The site had a storage tank that contained approximately
500,000 gallons of a mixture of pulp waste known as "black liquor" and water. He
and an employee went to the tank during a rainstorm and opened a value which
allowed the contents of the tank to flow into a pond that emptied into the Emory
River. The black liquor had a high Chemical Oxygen Demand level which had a
negative impact on vegetation and aquatic life in the river. He later pled guilty to the
CWA count and was sentenced12 to 12 months home confinement, 24 months'
probation, perform 300 hours of community service, publish an apology in the
Knoxville and Roan County newspapers, pay a $10,000 fine and $74,956.64 in
restitution to the Tennessee Department of Environment and Conservation, Tennessee
Valley Authority Police and the Southern Environmental Enforcement Training, Inc.
e.	On 11 June 1999, the Puerto Rico Electric Power Authority (PREPA) was sentenced
in federal court to 2 years of probation for a criminal violation of the CWA. Under
the conditions of a criminal plea arrangement, PREPA will also pay a $140,000 fine
and take steps to enhance environmental compliance. The sentence closes the books
on an EPA-launched investigation of a September 1995 sulfuric acid spill at PREPA's
Palo Seco facility. On September 2, 1995, nearly 10,000 gallons of sulfuric acid
leaked from a storage tank when the valve on the tank failed. The acid was
temporarily contained in a concrete retention base surrounding the tank. On
September 3, PREPA employees transferred the acid to a wastewater treatment tank
not designed for storage of sulfuric acid. The wastewater treatment tank contained
over 200,000 gallons of wastewater. PREPA added caustic soda to the tank to
nEPA Summary of Criminal Prosecution accessed 10 Jun 2019 at
https://cfpnb.epa.gov/compliance/criniinal prosecution/index.cfm?action=3&prosecution summary id=2924
12EPA Summary of Criminal Prosecution accessed 10 Jun 2019 at
https://cfpub.epa.gov/compliance/criniinal prosecution/index.cfm?action=3&prosecution summary id=940
10

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
neutralize the sulfuric acid and raise the pH level. The strategy failed, and
approximately 270,000 gallons of acidic water leaked from the wastewater tank and
emptied into nearby wetlands, contaminating the water and killing fish and other
marine life. As part of its probation, PREPA must establish and maintain an
Environmental Compliance Program, which will be designed to help ensure PREPA's
compliance with environmental laws. PREPA will also establish and maintain a spill
contingency project to avoid future mismanagement of spills. PREPA will be required
to file quarterly reports with the court and federal government showing the status of
the Environmental Compliance Plan and the contingency plan13.
f.	Between 1994 and 1996, Northeast Utilities and the Northeast Nuclear Energy
Company were involved in the improper monitoring of water discharged into the
Housatonic River and Long Island Sound. In addition, Northeast Utilities admitted
that it illegally discharged hydrazine used to clean water pipes into Long Island
Sound. Hydrazine is a highly toxic chemical and exposure to enough quantities of it
can cause significant damage to fish and wildlife populations and can cause serious
illnesses in people who encounter it by using surface waters for drinking or
recreational purposes. Northeast Nuclear admitted to 19 violations of the Atomic
Energy Act involving the falsification of the qualifications of workers at nuclear
power plants. On September 27, 199914 the companies were charged with one count
of violating the Atomic Energy Act (AEA) {33 U.S.C. 1252}. The companies pled
guilty and were sentenced to 36 months' probation, ordered to pay a special
assessment fee of $1,800. They were also ordered to pay $10 million in fines and
penalties as follows: $3.35 million criminal fine for violating the CWA, $3.35 million
criminal fine for violating the AEA, $650,000 to Riverfront Recapture for a
leadership camp for disadvantaged youth, $1 million to the State of Connecticut to
purchase riverfront land for public parks, $1 million to endow a Business Ethics Chair
at the University of Connecticut and $650,000 to endow an Environmental Clinic at
the University of Connecticut.
g.	An individual was an on-site contractor for the Beta Corporation at the Niagara
Mohawk Power Plant in August 1993. An illegal discharge of 1200 gallons of detox
solution was discharged into Lake Ontario. The substance which was discharged was
an excess quantity left over from an approved treatment relating to Zebra Mussels.
This discharge violated not only the CWA but also violated the New York State
Pollution Discharge Elimination System discharge permit. On February 27, 1996, the
defendant was charged with violating the NYS Environmental Conservation Law
{ECL 17-0701 (l)(c) - increasing/altering the content of wastes discharged into the
waters of the State of New York}. The defendant pled guilty and was sentenced to a
$2,500 fine15.
13EPA 11 Jun 1999 Press Release accessed 10 Jun2019 at
https://archive.epa.gi3v/epapages/newsroom arefaive/newsreteases/bl Iaf2al74b97b6c8525724800696ddl.html
14EPA Summary of Criminal Prosecution accessed 10 Jun 2019 at
https://cfpnb.epa.gov/compliance/criniinal prosecution/index.cfm?action=3&prosecution summary id=862
15EPA Summary of Criminal Prosecution accessed 10 Jun 2019 at
https://cfpub.epa.gov/compliance/criminai prosecution/index. cfm?action=3&prosecution summary id=568
11

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
h. The three individual defendants admitted that on several dates between January and
September of 1992, they falsified residual chlorine analysis which were required to be
included in the DMRs that were submitted to the Minnesota Pollution Control
Agency. The discharges were made into the Mississippi River, from the power plant's
cooling system. On November 4, 1993, the three defendants were charged16 with
violating the CWA {33 U.S.C. 1319(c)(6)(A) - failing to conduct tests on waste
discharge}. One defendant was charged with 33 counts, another with 28 counts and
the third with eight counts. The defendants each agreed to pled guilty to one count.
Each was sentenced to a $2,500 fine
D. Relevant industry-specific focused federal enforcement initiatives - One way that EPA's
Office of Enforcement and Compliance Assurance focuses enforcement and compliance
resources on the most serious environmental violations is with enforcement initiatives that
develop and implement national program priorities. Enforcement initiatives are an important
tool for identification of noncompliance and subsequent actions to compel return to
compliance. Additionally, these initiatives emphasize use of the full range of compliance
assurance tools, not only enforcement, and can thereby reduce risk by helping facilities
prevent releases that might otherwise be caused by noncompliance. In recent years, facilities
in the Electric Power Generation, Transmission and Distribution industry were included in
two initiatives:
a. Ensuring Energy Extraction Sector Compliance with Environmental Laws - Since FY
2011, this initiative focuses on significant public health and environmental problems,
including exposure to significant releases of volatile organic compounds, reducing
CAA non-attainment, and reducing water quality impairment. EPA and state
investigations identified concerns regarding significant emissions from storage
vessels at onshore oil and natural gas production facilities. To discuss certain
engineering and maintenance practices and potentially address compliance concerns
and reduce emissions, a Compliance Alert was released on Sep 201517 Figures 3 and
4 below detail some of the initiative inspection and enforcement results from FY
2011 through FY 201718. An average of 11% of federal inspections resulted in
enforcement activity. FY2016 was the lowest enforcement rate at 6% and FY2015
the highest at 19%. Please note that initiative case population and statistics presented
are not limited to the Electric Power Generation, Transmission and Distribution
Industry.
16EPA Summary of Criminal Prosecution accessed 10 Jun 2019 at
https://cfpnb.epa.gov/compliance/criniinal prosecution/index.cfm?action=3&prosecution summary id=536
17	EPA Compliance alert of Sep 2015 accessed 10 Jun 2019 at
Epa https://www.epa.gov/sites/production/files/2015-09/documents/oilgascompliancealert.pdf
18	EPA FY2019 Update to National Compliance Initiative accessed 10 Jun 2019 at
https://www.epa.gov/enforcement/national-compliance-initiative-ensnring-energv-extraction-activities-complv
12

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
Annual Number of Energy Extraction Facilities Subject to
Concluded EPA Enforcement Actions
1 140
i
-	121
I	¦¦
III
1 I I I I I I I
FY2011	FY2012	FY2013	FY2014	FY2015	FY2016	FY2017
Fiscal Year
Figure 3
Annual Number of Energy Extraction Facilities with EPA
Inspections/Evaluations
FY2011	FY2012	FY2013	FY2014	FY2015	FY2016	FY2017
Fiscal Year
Figure 4
b. Reducing Air Pollution from the Largest Sources - This initiative focused on ensuring
that large industrial facilities, like coal fired power plants, comply with the CAA
when building new facilities or making modifications to existing ones. This initiative
has resulted in significant cuts in air emissions, especially from coal fired power
plants, since in 2005. Figures 5 and 6 below detail some of the initiative inspection
13

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
Figure 5
and enforcement results and outcomes from FY 1999 through FY 201719. Please note
that initiative case population and statistics presented are not limited to the Electric
Power Generation, Transmission and Distribution Industry.
Cumulative Progress Toward Investigating and Controlling Coal-
Fired Electric Utility Units
1200
1000
800
600
804
830
836
867
867
Universe = 1136
units
Units for
Which an
Investigation
Has Been
Initiated
I Units
Controlled
200
Work Done FY2011 FY2012 FY2013 FY2014 FY2015 FY2016 FY2017
from1999-	Fiscal Year
2010
•Controlled means: 1) significant technology installed or such controls are inherent in the operation of the unit; or 2) subject to an
enforceable requirement to install appropriate controls.
•The existence of significant emission controls does not indicate anything about the source with respect to enforcement or compliance
status. While units may be counted as not controlled based on reporting to EPA, units that have not undergone a major modification
may not be required to install significant controls.
19EPA National Compliance Initiative: Reducing Air Pollution from the Largest Sources accessed 10 Jun 2019 at
https://www.epa.gov/enforcement/national-compliance-initiative-reducing-air-pollution-largest-sources
14

-------
Enforcement, Court Settlements and Judgments in the Electric Power Generation, Transmission
and Distribution Industry
Total NOx and SOz Emissions from Coal-Fired Utilities
10,000,000
NOx (tons) 	S02 (tons)
«/>
c
o
o
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Year
Emission reductions are not attributable to enforcement alone.
Data source: EPA Acid Rain Database (http://ampd.epa.gov/ampd/).
Figure 6
E. Enforcement of new Electric Power Generation, Transmission and Distribution industry
federal requirements -The 2015 Coal Combustion Residual (CCR) Final Rule did not
provide EPA with enforcement authority20. Enforcement was by citizen suits only, although
the Agency could use RCRA § 7003 to address conditions that may present an "imminent
and substantial endangerment." The Water Infrastructure Improvements for the Nation
(WIIN) Act21 was signed in December of 2016 and expanded enforcement authorities
available to EPA. The Act states that EPA may use its information gathering and
enforcement authorities under RCRA §§ 3007 and 3008 to enforce the 2015 CCR Final Rule
or permit provisions22. At this time, no cases of federal enforcement of this regulation have
yet been concluded.
211 The 2015 CCR Final Rule was promulgated under Subtitle D of RCRA, it did not require the states to adopt or
implement the regulations or to develop a permit program. It also did not provide a mechanism for EPA to approve a
state permit program to operate "in lieu of' the federal regulations.
21	33 U.S.C. 2242
22	Section 2301 of the WIIN Act amended RCRA to allow States to submit permit (or other system of prior approval
and conditions) programs to EPA for approval. The Act states that if a state CCR permitting program is approved by
the Agency (known as a participating state), those permits will operate "in lieu of' the federal regulations in part
257. The Act states that EPA will develop permits for those units located in tribal lands and, if given specific
appropriations, EPA will develop a permitting program for those units located in non-participating states.
15

-------