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FY2004 Civil Enforcement Highlights
FY2004 Annual Results Topics
The Fiscal Year 2004 Civil Enforcement Highlights report contains the following categories:
Clean Air Act
Coal-fired Electric Utilities
Petroleum Refineries
Pulp and Paper Sector
Oil-Fired Electric Power Plant
Ozone Depleting Substances
Clean Water Act
Resource Conservation and Recovery Act
Emergency Planning and Community Right to Know Act
Compliance Incentives
Supplemental Environmental Projects
National Lead-Based Paint Enforcement Program
Comprehensive Environmental Response Compensation and Liability Act
Innovative Enforcement Cases
Early 2005 Case Highlights
Clean Air Act
Coal-fired Electric Utilities
Since 1999, EPA and the Department of Justice (DOJ) have filed several Clean Air Act (CAA) New Source Review (NSR) lawsuits against several coal-fired electric utilities, alleging that these companies made major modifications to their plants without installing equipment to control pollution that causes smog, acid rain and soot. EPA has litigated and resolved several of these actions and negotiated settlements with seven companies: Tampa Electric Company; PSEG Fossil; Southern Indiana Gas and Electric Company; Virginia Electric Power Company; Alcoa; Wisconsin Electric Power Company; and Santee Cooper. These settlements resulted in the removal of over 658,000 tons of pollution from the air annually and expenditure of over $3.9 billion to install state-of-the-art air pollution controls. EPA has cases pending in the courts against seven companies: Alabama Power, American Electric Power, Duke Power, East Kentucky, First Energy (Ohio Edison), Georgia Power, and Illinois Power (Dynegy). In 2004, EPA entered into negotiated settlements with Santee Cooper and VEPCO, filed a judicial complaint against East Kentucky, and issued Notices of Violations (NOVs) to Northern Indiana Public Service Company, Nevada Power and Westar.
Santee Cooper, South Carolina
EPA, joined by the State of South Carolina, entered into a major CAA NSR settlement with the South Carolina Public Service Authority (Santee Cooper) to resolve violations at several of the company’s coal-fired power plants in South Carolina. Under the settlement, Santee Cooper will spend approximately $400 million to install state-of-the-art pollution controls on more than 83 percent of its existing coal-fired megawatt generating capacity, which will reduce emissions of sulfur dioxide and nitrogen oxides by approximately 70,000 tons per year. Santee Cooper will also improve its control of particulate matter, pay a $2 million civil penalty and spend at least $250,000 to implement an environmental management system. In addition, Santee Cooper will spend $4.25 million on supplemental environmental projects, including: $1.25 million for a South Carolina land conservation project, $1 million for an energy-efficient technologies project, $1 million for a demand-side management project, and $1 million for a clean diesel school bus project. The consent decree was entered by the court in June 2004.
Virginia Electric and Power Co., Virginia, West Virginia
EPA, joined by the States of New York, New Jersey, Connecticut, Virginia and West Virginia and the National Park Service, entered into a consent decree with the Virginia Electric and Power Co. (VEPCO) on Oct. 3, 2003. The settlement requires VEPCO to spend $1.2 billion by 2013 for environmentally beneficial projects and to install pollution control equipment and upgrade existing controls that will eliminate 237,000 tons of sulfur dioxide and nitrogen oxides emissions annually from eight coal-fired electricity-generating plants in Virginia and West Virginia. This is the largest CAA settlement of an enforcement action against a utility. It resolves charges that the company made major modifications to its plants without installing the required pollution control equipment to control pollution that causes smog, acid rain, and soot. VEPCO also agreed to pay a $5.3 million civil penalty and spend at least $3 million on supplemental environmental projects to offset the impact of past emissions on New York, New Jersey, Connecticut, Virginia and West Virginia. These projects include retrofitting or otherwise reducing emissions from diesel engines (including school buses), installing photovoltaic cells on municipal buildings, purchasing conservation easements to preserve environmentally sensitive areas, and providing alternative-fueled vehicles for use in the Shenandoah National Park.
The Petroleum Refinery Initiative is one of the largest, most comprehensive and successful enforcement initiatives ever undertaken by EPA. It is addressing issues of widespread noncompliance under four complex regulatory programs administered by EPA: New Source Review (NSR); New Source Performance Standards (NSPS), leak detection and repair (LDAR); and benzene waste National Emissions Standards for Hazardous Air Pollutants (NESHAP) requirements. EPA initiated over 150 issue-specific investigations at more than 100 refineries and, beginning in FY 2000, embarked on a process of “global” settlements, which address each issue of concern at all of a company’s refineries. These settlements require state-of-the-art controls and the implementation of enhanced programs to ensure continuing compliance with applicable requirements.
Through the end of FY 2004, EPA has entered into eleven global settlements affecting 42 refineries, representing more than 40 percent of domestic refining capacity, to reduce emissions by approximately 150,000 tons per year at a combined cost of $1.9 billion. EPA entered into 12 other, narrower settlements and is actively pursuing global settlements with companies representing an additional 40 percent of domestic refining capacity.
During FY 2004, EPA entered into a series of mini-global settlements with medium-to-small refiners and two, narrower refinery settlements:
Coastal, Cenex and Ergon, New Jersey, Montana, West Virginia, Mississippi
EPA filed a series of separate global refinery settlements covering refineries in Westville, N. J. (Coastal Eagle Point Oil Company, joined in by New Jersey), Laurel, Mont., (Cenex/CHS, joined in by Montana), Newell, W.V. (Ergon-West Virginia, joined in by West Virginia) and Vicksburg, Miss., (Ergon Refining, joined in by Mississippi). These refineries will install state-of-the-art technologies and collectively reduce refinery emissions by 4,000 tons per year, pay penalties of $2.9 million and implement supplemental and other environmental projects valued at more than $1.6 million. As with other global settlements, these include similarly enhanced programs to reduce flaring, minimize equipment leaks (a major source of volatile organic compound emissions) and manage benzene wastes properly.
Coffeyville Resources and National Cooperative Refining Association, Kansas
EPA, joined by the state of Kansas, entered into separate, narrower settlements involving NSR and other issues to reduce emissions by 5,000 tons per year from refineries located in Coffeyville and McPherson, Kans. Coffeyville Resources will spend $59.3 million to install state-of-the-art control on its fluidized catalytic cracking unit (the largest emission source at the refinery) and implement enhanced benzene waste management programs at the Coffeyville refinery, acquired through the bankruptcy liquidation of Farmland Industries. NCRA will utilize innovative pollution control technologies, implement enhanced programs to minimize flaring events, pay civil penalties of $350,000 and complete supplemental environmental projects valued at $1.5 million.
Ethanol Industry
In FY 2004, EPA and DOJ settled the latest in a series of enforcement actions to ensure CAA compliance in the ethanol industry. EPA previously settled cases against several other ethanol, grain and seed processors that violated CAA Prevention of Significant Deterioration (PSD) provisions by expanding their operations without installing controls or getting the proper permits. Through the end of FY 2004, EPA has entered into settlements covering 64 ethanol plants nationwide to reduce air emissions over 65,000 tons per year at a combined cost of over $350 million. For example, twelve Minnesota companies agreed to a simultaneous settlement, on Oct. 2, 2002, which requires these dry corn ethanol plants to install state-of-the-art controls at a cost of about $2 million per plant, reduce emissions by a total of 2,600 tons per year of VOC and 1,900 tons of carbon monoxide, and pay civil penalties ranging from $29,000 to $39,000. Archer Daniels Midland (ADM) was another case in this grain/seed/ethanol initiative, in which ADM agreed in FY 2003 to settle similar PSD violations at 52 plants in 16 states by installing similar state of the art controls, thermal oxidizers for VOCs and other controls for NOx, and other pollutants, which will reduce emissions by over 61,000 tons per year at a cost of $340 million. ADM paid a total civil penalty of $4.6 million and will spend $6.3 million on federal and state Supplemental Environmental Projects.
Ace Ethanol, Wisconsin
EPA and DOJ settled the case against Ace Ethanol in December 2003 for alleged violations of the Prevention of Significant Deterioration (PSD) provisions of the CAA, as well as other sections of the CAA, such as the New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPs). Ace’s ethanol dry mill processes corn into ethanol. This facility is one of 75 ethanol plants in the United States. Ace is required to install a regenerative thermal oxidizer (RTO) to achieve 95 percent destruction of volatile organic compounds. The RTO will also reduce particulate matter and carbon monoxide. Compliance with NSPS and NESHAPs will also be required, along with appropriate compliance testing, monitoring, and record-keeping. The estimated cost of these compliance measures is over $1 million. Ace agreed to pay a $337,609 civil penalty to the State of Wisconsin.
Weyerhaeuser Company, Pennsylvania
EPA settled its case against Weyerhaeuser in July 2004. The settlement resolves Prevention of Significant Deterioration (PSD) and New Source Performance Standards (NSPS) CAA violations at a pulp and paper mill located in Johnsonburg, Pa.. The total penalty in this action is $900,000; 25 percent of the penalty ($225,000) will be shared with the Commonwealth of Pennsylvania. To achieve compliance with its PSD requirements, the company installed wet flue gas desulfurization (FGD) scrubbers designed to achieve Best Available Control Technology control of sulfur dioxide. The FGD scrubbers cost Weyerhaeuser approximately $5.5 million to construct.
Concentrated Animal Feeding Operations
EPA and DOJ entered into a consent decree with Buckeye Egg Farm, L.P., of Ohio on July 6, 2004, that represented one of the first Clean Air Act Prevention of Significant Deterioration settlements of an enforcement action against a concentrated animal feeding operation.
Buckeye Egg Farm, Ohio
The company will spend more than $1.6 million to test and install innovative pollution controls to reduce air emissions of particulate matter over 1,300 tons each year and ammonia over 700 tons each year. Buckeye Egg Farm’s facilities hold nearly 12 million laying hens, which produce 2.6 billion eggs, representing nearly 4 percent of the nation’s eggs. The decrease in emissions for the three facilities, in Croton, Marseilles, and Mt. Victory, correlate to a reduction of 50 to 70 percent of the particulate matter and 50 percent of the ammonia. In addition to implementing these controls, which will minimize the negative impacts of these facilities on local residents, the company also paid civil penalties of nearly $900,000. If the controls do not provide sufficient emission reductions, the company will apply for all applicable federally enforceable permits.
Oil-Fired Electric Power Plant
Puerto Rico Electric Power Authority
On Sept. 8, 2004, the United States District Court of Puerto Rico entered a modification of a previously entered consent decree to address substantial noncompliance with opacity regulations and other CAA violations discovered by EPA after entry of the original . PREPA is required to lower the sulfur content of its fuel at three plants, switch fuels at one plant, and burn diesel fuel when starting up units that are cold. EPA estimates over $150 million as the projected cost for fuel switching. Over the next six years, EPA expects a 230,000-ton reduction of SO2 emissions and thereafter, maintenance of a 49,900 tons-per-year reduction. As an alternative to fuel switching, to address the SO2 emissions, PREPA is considering the purchase of flue gas desulfurization pollution control devices, at an estimated cost of $200 million. The modification also requires PREPA to conduct a Nitrogen Oxide Emissions Reduction Program that will result in estimated nitrogen oxide reductions of at least 4,300 tons per year. PREPA will pay a civil penalty of $300,000 and supplement with two environmental projects, spending an additional $100,000 to acquire valuable wetlands and $100,000 to pay a contractor to oversee compliance with the 1999 consent decree.
Ozone Depleting Substances
Wal-Mart
EPA and DOJ entered into a consent decree with Wal-Mart on Jan. 22, 2004, that represented the largest CAA settlement for illegal sales of ozone-depleting refrigerants. The settlement requires Wal-Mart to stop selling canisters of ozone-depleting refrigerants at all of its stores. It resolves charges that the company sold ozone-depleting refrigerants to consumers without verifying that they were certified technicians. Wal-Mart also will pay a $400,000 civil penalty.
Clean Water Act
Wet Weather Priorities – Combined Sewer Overflows and Sanitary Sewer Overflows
Combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs) typically contain pollutant concentrations that can cause or contribute to violations of water quality standards, precluding the use of the water body for swimming, boating, fishing or such activities. CSOs and SSOs also contribute to beach closings, shellfish bed closures, contamination of drinking water supplies and other environmental damage because they discharge untreated wastewater that contains microbial pathogens, suspended solids, toxics, nutrients, trash and pollutants that deplete dissolved oxygen.
CSOs and SSOs have been a national compliance and enforcement priority for EPA since 1998. EPA has concluded approximately 15 CSO civil judicial enforcement cases and 25 SSO civil judicial enforcement cases, including more than $14 million in penalties, addressing over 164 billion gallons of sewage overflows annually, and requiring over $11 billion in injunctive relief to protect public health and the environment.
In FY 2004, EPA concluded the following case:
Hamilton County Sewer System, Cincinnati, Ohio
In June 2004, the U.S. District Court for the Southern District of Ohio entered a consent decree resolving CSO, SSO, and wastewater treatment plant violations at the Hamilton County sewer system in Cincinnati, Ohio. The settlement will reduce by at least 85 percent the 6.2 billion gallons of raw sewage discharged annually from the defendants’ CSOs and eliminate hundreds of millions of gallons of raw sewage overflows annually at the defendants’ SSOs. The defendants are required to complete remedial measures to control CSOs based on an updated Long Term Control Plan (LTCP) by Feb. 28, 2022. The defendants are required to eliminate SSOs based on a Capacity Assurance Program Plan (CAPP) by the same date. If remedial measures under the LTCP and CAPP exceed $1.5 billion, the defendants may request a schedule extension. The settlement establishes a program to address impacts from the defendants’ sewage system to residents’ basements. The program requires the defendants to (1) clean up residents’ basements, (2) compensate residents for real and personal property damage caused by sewage backups, and (3) implement measures to prevent further backups. In addition to a $1.2 million civil penalty, the settlement includes over $5.3 million in supplemental environmental projects that require restoration work and green way development along the Mill Creek, the water body most impacted by the discharges.
In addition, EPA and the Department of Justice, together with a coalition of citizen groups entered a partial settlement with:
Washington, D.C., Water and Sewer Authority
WASA will initiate an extensive program to reduce illegal discharges of untreated sewage into the Anacostia and Potomac Rivers and Rock Creek. This effort will include steps to limit CSOs by improving operations and maintenance, rehabilitating pump stations, increasing sewage storage and flow capacity, working to prevent dry weather overflows and upgrading pretreatment requirements for industrial discharges at an estimated cost of $150 million. WASA will pay a $250,000 penalty for past violations and fund $1.7 million in storm water pollution prevention.
Resource Conservation and Recovery Act
Universities and Colleges
Many academic institutions are similar to small cities in the activities that occur within their campus borders. If these activities are not in compliance with applicable requirements, they can have a significant impact on human health and the environment on campus and in surrounding communities. Since 2000, when an EPA Enforcement Alert first summarized the results of university and college inspections, EPA regions have continued to address noncompliance at universities, including several significant actions in FY 2004.
EPA Region 9, with state and local authorities, invited the University of California to voluntarily evaluate its compliance with RCRA requirements and other environmental obligations at all campuses and sites that are part of the UC system:
University of California
On Sept. 30, 2004, EPA concluded an administrative enforcement action for RCRA violations of hazardous waste management practices voluntarily disclosed by the University of California. UC audited 47 facilities, including its nine campuses, agricultural research stations, medical and veterinary schools and other facilities. UC discovered, disclosed, and corrected violations of RCRA requirements at 34 facilities involving approximately 4,000 containers of hazardous waste. Some of these hazardous wastes were ignitable paint and solvent wastes, corrosive acid wastes, reactive cyanide wastes, silver contaminated photochemical wastes, and toxic contaminated wastes. For each campus, UC identified measures taken or proposed to prevent recurrence of these violations. UC estimated that the audit took 23,645 work hours representing approximately $1.78 million. Under EPA’s Audit Policy, many of the RCRA violations were eligible for penalty mitigation. As a result, the penalty was assessed at $9,570. An EPA Enforcement Alert in November will feature this program.
EPA Region 2 concluded five enforcement actions in FY2004 against universities. Four of them included supplemental environmental projects (SEPs) that provide local high schools with training to promote better management of hazardous waste. The aggregated value of the SEPs commitments is more than $320,000.
Pratt Institute, Brooklyn, N.Y.
As part of a settlement of several RCRA violations governing the identification and management of hazardous waste, Pratt Institute of Brooklyn, N.Y., agreed to implement a project that is intended to train high school personnel on complying with regulations on chemical handling, hazardous waste management and disposal, identification of hazardous waste, safe and proper storage of laboratory chemicals and hazard communication. The value of the Pratt project is $269,416.
Foundries
During FY 2004, EPA settled two cases that resulted in the removal of lead-contaminated hazardous waste that had been placed on land.
Conbraco Industries Inc., North Carolina
EPA Region 4 issued an administrative order on consent pursuant to Section 3008(a) of RCRA to Conbraco Industries Inc. It requires Conbraco to investigate and remediate several large areas located at its Matthews, N.C., facility, where it had improperly placed untreated waste foundry sands, which are a lead hazard. Conbraco was also ordered to close its illegal waste sand treatment system at its Pageland, S.C., facility and to excavate a waste pile containing foundry sand contaminated with lead. EPA assessed a penalty of $500,000. The cost of the injunctive relief will likely reach $3.5 million. The injunctive relief addresses approximately 24,000 tons of lead contaminated soil and foundry sand at the Matthews facility and an excavated lead contaminated foundry sand pile and soil at the Pageland facility totaling 100 cubic yards.
Emporia Foundry, Virginia
EPA Region 3 signed an administrative consent agreement and final order to settle outstanding RCRA violations at the Emporia Foundry in Emporia, Va., which involved the storage of partially treated baghouse dust contaminated with lead on an unlined pad. Emporia also shipped, in a three-month period, approximately 142 tons of hazardous waste to a land disposal site not authorized to receive hazardous waste. The violations continued for a significant period of time and the mismanagement of the waste resulted in the release of lead into the environment. Although the Agency had requested a significant penalty ($1.2 million) for these violations, the EPA agreed to $110,000 after the company documented an inability to pay more without incurring financial hardship. As part of the settlement, Emporia has ceased improperly managing its hazardous waste and ships it off-site to a permitted treatment, storage and disposal facility.
Illegally Exported Hazardous Waste
EPA also focused on international waste issues, entering into a case that is significant because it supports EPA’s authority to order the reimbursement of costs to cleanup hazardous waste illegally exported to another country:
Pyramid Chemical Company
On Sept. 16, 2004, EPA’s Environmental Appeals Board issued a default order and final decision in a case that arose out of Pyramid’s export of 29, 40-foot containers of hazardous waste to the Netherlands, in violation of RCRA. The board ordered Pyramid to reimburse the Dutch government for over $1.2 million in costs it had incurred in removing and properly disposing of the illegally exported hazardous waste. The Board held that there was no “good cause” to excuse Pyramid’s untimely response to the complaint that EPA filed in June 2003.
Emergency Planning and Community Right to Know Act
EPA uses innovative approaches to achieve compliance at a cost-savings and to enable the Agency to devote its resources to significant environmental and public health problems. Compliance is EPA’s objective and innovative approaches can help get us there more effectively. The Community Right-To-Know Initiative was developed to ensure that Toxics Release Inventory (TRI) facilities submit timely TRI data required under section 313 of the Emergency Planning and Community Right to Know Act (EPCRA). It is a broad enforcement effort designed to heighten facilities’ awareness of the annual reporting deadline. The primary purpose of EPCRA Section 313 is to make available to the public annual toxic chemical release and other waste management data from certain facilities within their communities. This initiative helps ensure that the public has timely access to information about releases of chemicals in the community by providing a stronger incentive for facilities to submit their reports on time.
Community Right-to-Know Initiative
EPA settled 16 cases as part of this national initiative. Under terms of the settlements, each company paid a penalty of $5,000. The initiative responded to a large and increasing number of companies that consistently for two or more years submitted Toxic Release Inventory (TRI) reporting forms too late to appear in the annual Public Data Release (PDR). In 2000 and 2001, over 3,000 facilities submitted more than 8,000 late TRI forms that reported over 3 billion pounds of toxic chemical releases and transfers. About 1.3 billion pounds were reported so late that they could not be included in the annual Public Data Release, undermining the communities’ right to know, which is the purpose of EPCRA § 313. A number of late reporters would have been among the “top ten” releasing facilities in their states as published in the PDR. Some late reporters accounted for more than half the pounds released and transferred in a given community. Citizens using PDR data (from books or CDs sent to libraries or TRI data available online) will not see these reports.
Compliance Incentives
EPA is committed to a strong civil enforcement program to achieve environmental protection by deterring violators, bringing violators into compliance, correcting damage to the environment and ensuring that those who follow the law are not put at an economic disadvantage by those who fail to comply. EPA also uses compliance incentives to promote self-policing and improvement. The number of facilities disclosing violations under the Audit Policy increased significantly from 614 facilities in FY 2003 to 1,223 facilities in FY 2004. In addition, EPA resolved self disclosures by 969 facilities, compared to 848 in FY03. Many of these disclosures came from initiatives tailored to improve environmental management at certain types of facilities, such as colleges, universities or health-care institutions.
Since EPA reached its first Audit Policy settlement with a telecommunications company in 1998, more than 25 telecommunications businesses have disclosed violations of EPCRA, CWA, CAA and RCRA under EPA’s Audit Policy as part of EPA’s Telecom Compliance Incentives Initiative. Over $48 million in gravity-based penalties were waived. EPA is committed to pursuing those in noncompliance who have elected not to participate and take advantage of EPA’s compliance incentive efforts. In FY 2004, EPA settled a case with ALLTEL, which had failed to self-disclose its violations.
ALLTEL Corporation
On Dec. 16, 2003, EPA and DOJ entered into a consent decree with ALLTEL Corporation, a leading provider of communications and information services. The settlement requires ALLTEL to carry out cross-cutting environmental compliance audits at its more than 7,500 facilities nationwide and pay a $1,058,000 civil penalty. The agreement resolves claims that ALLTEL violated the Clean Air Act, Clean Water Act, and/or the Emergency Planning and Community Right-to-Know Act at 196 of its facilities in 18 states.
Supplemental Environmental Projects
Several FY 2004 EPA enforcement settlements included supplemental environmental projects that provided significant benefits to public health and the environment. Lead-based paint abatement and diesel school bus retrofits focused on improving children's health removing harmful pollutants from their environment. Numerous settlements included emergency response supplemental environmental projects in which hazardous response equipment was provided to local communities. Finally, environmental restoration supplemental environmental projects provided for improved water quality, restoration of wetlands, and conservation of environmentally important properties. In addition to the supplemental environmental projects described in the preceding case highlights, the following settlements include innovative projects:
Massachusetts Bay Transportation Authority
EPA settled its case against MBTA in March 2004. MBTA is Boston’s regional transit authority. The case involves storm water and spill prevention control and countermeasure violations and violations of a Massachusetts state implementation plan provision that limits vehicle idling times to five minutes. Under the settlement, MBTA will pay a penalty of $328,274, come into compliance with the CAA, develop and implement an environmental management system, and spend over $1 million on supplemental environmental projects (SEPs). One MBTA SEP involves switching the MBTA’s commuter rail trains operating from Boston’s South Station from high- to low-sulfur diesel fuel. The cleaner fuel will eliminate about 32 tons of particulate pollution and 429 tons of sulfur dioxide from the Boston area over three years. (In a separate Region 1 settlement with Exelon Mystic, another SEP will make the same switch on the trains running from Boston’s North Station.) The other MBTA SEP involves a donation of land along the Mystic River for the extension of an existing bike path into Boston, thereby enhancing possibilities for alternative commuting.
True Manufacturing, Missouri
EPA settled a case against True Manufacturing of Missouri, which alleged that between 1981 and 1999, True committed numerous violations of the New Source Review (NSR) provisions of the CAA by constructing and operating manufacturing units that together emitted 166 tons per year of volatile organic compounds (VOCs) and hazardous air pollutants (HAPs) without obtaining a pre-construction permit or installing emissions controls. The installations occurred when the St. Louis area was not in attainment with the National Ambient Air Quality Standards for ozone. True manufactures commercial refrigeration equipment, including display cases, food preparation tables, restaurant refrigerators and freezers. VOCs contribute to the formation of ground-level ozone. True resolved the CAA and self-disclosed violations under RCRA and CWA by installing innovative new equipment that does not emit VOCs or HAPs for a 138-ton annual emissions reduction (83 percent), and by installing a wastewater filtration system. True will also pay a civil penalty of $1,500,000 and perform SEPs valued at $1,900,000 to reduce VOC emissions.
National Lead-Based Paint Enforcement Program
EPA, alone and in conjunction with DOJ and HUD, enforces violations of the Lead-based Paint Real Estate Notification and Disclosure Rule. In FY 2004, 14 of EPA’s administrative settlements included supplemental environmental projects aimed at eliminating risks of lead poisoning from lead-based paint, with a total value of over $5.5 million.
EPA, alone and in conjunction with DOJ and HUD, enforces violations of the Lead-based Paint Real Estate Notification and Disclosure Rule. In FY 2004, 14 of EPA’s administrative settlements included supplemental environmental projects aimed at eliminating risks of lead poisoning from lead-based paint, with a total value of over $5.5 million.
Winn Managed Properties, LLC, Massachusetts
On Sept. 30, 2004, Region 1 issued a consent agreement and final order against Winn Managed Properties, LLC, Winn Management Company, LLC, and Lend Lease Apartment Management, LLC (collectively Winn) for Disclosure Rule violations. Winn, a large property management company based in Boston, and entities related to Winn, own and manage more than 235 residential properties, of which more than 10,000 units are subject to the Lead Disclosure Rule. Winn failed to adequately comply for many of its properties. The order requires Winn to pay a cash penalty of $105,000 (to be split equally with HUD) and to spend at least $3.7 million to perform lead-paint risk assessments and lead-paint hazard abatement where necessary in approximately 10,400 units of residential property located in Massachusetts, Rhode Island, Connecticut, New Hampshire, New York, Pennsylvania, Virginia, Washington, D.C., and California. Winn also will develop and implement an operations and maintenance plan to monitor and repair any lead hazards.
Ceebraid Signal Management Group, Connecticut
Ceebraid manages seven apartment complexes in Connecticut, comprising 1,600 units. Under the administrative settlement with EPA Region 1, Ceebraid will pay a $95,000 penalty; spend at least $120,000 to test all seven apartment complexes for lead-based paint and lead-based paint hazards; develop and implement a Lead Management Plan to monitor lead paint surfaces and abate any hazards detected; and have its employees take Lead-Safe Work Practices training to properly implement the Lead Management Plan.
Comprehensive Environmental Response, Compensation and Liability Act
Palmetto Recycling Superfund Site, Columbia, S.C
On Nov. 26, 2003, the United States District Court for South Carolina, Columbia Division entered default judgments on two counts against James Hobbs and Phillip Gaido, the former owners/operators of the Palmetto Recycling Site in Columbia, S.C. On March 16, the court found that the United States is entitled to recover response costs for $1,220,488.76 against the defendants jointly and severally. In addition, the court found that defendants should be subjected to civil penalties under CERCLA for failing to respond to Information Requests for 1,679 days and assessed civil penalties in the amount of $46,172,500.00 against each defendant for a total of $92,345,000. The civil complaint, filed on April 30, 2003, by the Department of Justice (DOJ) alleged that a release or threat of a release of hazardous substance had occurred at the site and that the defendants are liable for costs incurred by the government. In addition, DOJ filed a compliant under Section '104(e)(5)(B) of CERCLA to enforce compliance with '104(e) and 122(e)(3)(B), requests for information and administrative subpoenas. The defendants made no effort to respond and had a history of disregarding requests for information and administrative subpoenas. This case was developed by EPA Region 4.
Fox River Site, Wis.
In April 2004, EPA entered into a consent decree and administrative order on consent (AOC) with two potentially responsible parties (PRPs) for remedial design (RD) and remedial action (RA) work at the Fox River Superfund Site in Wisconsin. The consent decree provides for the performance of the RD/RA for OU1. The two PRPs each made initial payments of $25 million to an escrow account and an additional $10 million came from an earlier $40 million interim settlement with API/NCR. The dredging work under this consent decree began in September. The work is estimated to cost approximately $60 million, and is the first major step toward clean-up of the approximately 65,000 pounds of PCBs estimated to be in the sediment of the Fox River.
The administrative order on consent, signed on March 18 was for performance of the remedial design for operating units (OUs) 3-5. The record of decision (ROD) includes portions of Green Bay and 13 miles of the Fox River directly upstream from where it empties into Green Bay. The ROD calls for dredging almost 7 million cubic yards of PCB-contaminated sediment from the River and Green Bay. The ROD for OUs 1-2 covers 26 miles of the River upstream from OUs 3-5. The response activities proposed by the two RODs will cost approximately $400 million.
Representatives from EPA, DOJ, Wisconsin DOJ, and Wisconsin Department of Natural Resources have met with PRPs throughout FY2004 to discuss both work and cashout settlements. Since January 2004, the PRPs met with the intergovernmental parties several times and presented variations on their proposal for an insurance-backed, Mattiace-like settlement that would clean up the whole site. This case was developed by Region 5.
El Monte Operable Unit and San Gabriel Valley Superfund Sites, Calif.
EPA reached a settlement with 27 companies for the implementation of a $40 million cleanup of a 10-square-mile groundwater plume in the San Gabriel Valley of Los Angeles County. The San Gabriel Basin groundwater aquifer underlies most of the San Gabriel Valley and is the primary source of water for most of the Basin’s 1 million residents. Contamination in the San Gabriel Valley has severely impacted numerous public water supply wells, forcing water purveyors to shut down wells or construct new treatment systems. The settlement is embodied in a consent decree, which was entered by the District Court for the Central District of California on April 21, 2004. The settlement addresses one portion of the San Gabriel Basin’s contamination, known as the El Monte Operable Unit. Under the consent decree, the settling companies will provide for the construction and operation of treatment systems that will address various contaminants, including volatile organic compounds and, if needed, perchlorate. In addition, the companies will reimburse EPA for approximately $2 million in response costs that EPA incurred in investigating the contamination and selecting a remedy. This case was developed by EPA Region 9.
Palmerton Zinc Pile Superfund Site, Palmerton, Pa.
On Nov. 21, 2003, the court entered a Consent Decree settling the cost recovery litigation between the United States and Horsehead Industries, Inc., Horsehead Resource Development Company, Inc., Viacom International Inc., and TCI Pacific Communications, Inc. in connection with the Palmerton Zinc Pile Superfund Site located in Palmerton, Carbon County, Pa. The Consent Decree provides that Horsehead and Viacom will pay a total of $13 million in past costs incurred by the United States at the Site and will perform all work required by the RODs for OU#1, OU#2, and OU#3 at the Site with an estimated value of $27 million. Horsehead and Viacom will also reimburse EPA for any future response costs, including remedial action oversight costs, and will make a lump sum payment of $300,000 to DOI in reimbursement of its future response costs. Horsehead is also obligated to perform the work required by a 1995 Consent Decree in connection with OU#2 and to pay EPA $252,745.00 in past oversight costs in connection with OU#1. In addition, Horsehead agreed to dismiss counterclaims it had filed against the United States under Sections 107 and 113 of CERCLA. This case was developed by EPA Region 3.
Tennessee Products Superfund Site
On Sept. 27, 2004, EPA signed a consent decree concerning the Tennessee Products Superfund Site for RD/RA work and reimbursement of past costs with a total value of over $33 million dollars. In order to overcome the potentially responsible parties’ divisibility arguments, Region 4 developed a detailed history of the operations of the Tennessee Products coke plant dating back to the 1920s. The history was complicated by the fact that the U.S. Government owned a portion of the plant during World War II. Region 4 relied upon several industry experts, including experts from NEIC to understand coke plan operations. It worked with cartographers and local water management officials to interpret historic sewer maps. Based largely on the information provided by these experts, EPA and the PRPs, including the federal parties, were able to agree on an allocation for the settlement.
MW Custom Papers, LLC, Reilly Industries, Inc., and Southern Wood Piedmont have agreed to conduct the remedy, valued at $13,148,485, and to pay $2,793,912 toward reimbursing EPA’s past response costs. The federal PRP has agreed to cash out its liability for $17,400,000, of which $6,519,128 will be applied toward reimbursement of EPA’s past response costs. EPA has agreed to forgive a percentage of past response costs attributable to orphan share, litigation risk and other equitable factors.
Starmet Removal Superfund Site, Barnwell, S.C.
On Feb. 6, 2004, Region 4 executed an Administrative Order on Consent for a removal response at the former Starmet CMI Inc. uranium processing facility located in Barnwell, S.C. Respondents are the Department of Energy (DOE), the Department of the Army, and the United States Enrichment Corporation (USEC). The federal parties are required to fund an EPA lead removal on a portion of the site, and USEC is to perform a removal on a separate portion. The order addresses waste material not addressed by EPA’s initial removal action. Through records provided by Starmet, EPA was able to attribute most of the materials on site to specific generators. As a result, the order provides for two simultaneous removals of separate waste materials. EPA is performing the first removal, funded by the federal parties, who placed $15 million into a special account. USECEC is performing the second removal and the private party provides financing. Total costs for these responses are expected to exceed $25 million.
Starmet CMI Inc. converted uranium hexaflouride (UF6) to a more stable material, uranium tetraflouride (UF4); reduced a portion of this UF4 to uranium metal for sale; and re-plated uranium counterweights. In 2002, the South Carolina Department of Environmental Control (DHEC) issued an Emergency and Administrative Order, which required the facility to cease operations. A number of conditions at the Site posed an imminent threat to public health. Among these were a compromised retention pond containing uranium contaminated wastewater, drums of pyrophoric uranium metal shavings, vats of plating acids contaminated with uranium, and approximately 20,000 drums of radioactive material stored without the operation of the facility’s ventilation and fire suppression systems. At the request of DHEC, in the summer of 2002, EPA initiated a removal action at the Site.
Princeton Gamma Tech Superfund Site, New Jersey
EPA Region 2, working with the State of New Jersey, will split a total of $22.5 million in a settlement with defendant, Princeton Gamma-Tech (PGT) Under a consent decree entered by the Court on Sept. 29, 2004, PGT will pay $14.2 million to EPA and $8.3 million to the State of New Jersey. Because PGT has claimed an inability to pay, these monies are coming from PGT’s various insurance carriers. EPA’s recovery will be split evenly between the Montgomery Township Housing Development Superfund Site and the Rocky Hill Municipal Well Superfund Site and placed into special accounts. PGT will receive a release and contribution protection from the United States and the State of New Jersey. A second consent decree, being finalized in FY2005, will settle the case against the remaining defendants: Fifth Dimension, Inc.; George, Estelle and Jeffrey Sands; and third party defendants, Frederick DeCicco and Cornelius Van Cleef.
Under a separate consent decree, which has been lodged for public comment, PGT will pay an additional $5 million to EPA to obtain a release and contribution protection in the cost recovery actions regarding the Higgins Disposal and Higgins Farm Superfund Sites.
Passaic River and Newark Bay Superfund, New Jersey
In Oct. 2003, EPA announced a $19 million joint study by EPA and the U.S. Army Corp. of Engineers on a 17-mile stretch of the Lower Passaic River in New Jersey. The study, an EPA-approved pilot under the Urban Rivers Restoration initiative, will take an estimated 5 to 7 years to complete. In spring 2004, Region 2 signed an Administrative Order on Consent with 31 potentially responsible parties (PRPs) under which the PRPs will provide $10 million in funding for EPA’s portion of the joint study.
In February 2004, EPA entered into an Administrative Order on Consent with another PRP, Occidental Chemical Corp., to forestall a potentially disruptive citizen suit. Under the order, Occidental will performa remedial investigation/feasibility study (RI/FS) for Newark Bay. Occidental will also fund certain response actions that EPA will conduct as part of the RI/FS, and reimburse EPA for all its associated response costs, including oversight costs, over the life of the project. Under the order, Occidental made a prepayment of $750,000 to fund, initially, EPA’s work and its oversight costs. EPA may also demand that Occidental pay additional sums necessary to fund pending work if the special account for the Newark Bay Study Area falls below $500,000 at any time.
Innovative Enforcement Cases
Denova Environmental, Inc. Site, Rialto, Calif.
EPA entered into a global settlement with the current owners of the Denova Environmental Inc. site in Rialto, San Bernardino County, Calif., and the prospective purchaser of a portion of the site, under which the parties are reimbursing more than $600,000 of EPA’s response costs and performing an additional $1 million in environmental investigation and cleanup. The former owner and operator, Denova, was a hazardous waste treatment, storage, and disposal facility, storing a large volume of chemicals and explosives. In 2001 and 2002, after the state terminated Denova’s permit for failure to comply with environmental laws, EPA performed extensive response actions to address the abandoned wastes. As part of the settlement, Target Corporation, which had no prior connection to the site and no liability for the contamination, is acquiring a portion of the property to develop a 3.3 million-square-foot distribution center. It expects the development to generate an estimated 1,000 temporary jobs for the 18-month construction period and the distribution center to create approximately 1,300 permanent jobs with a $40 million annual payroll.
Early 2005 Case Highlights
Wet Weather Priorities – Combined Sewer Overflows and Sanitary Sewer Overflows
Combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs) typically contain pollutant concentrations that can cause or contribute to violations of water quality standards, precluding the use of the water body for swimming, boating, fishing or such activities. CSOs and SSOs also contribute to beach closings, shellfish bed closures, contamination of drinking water supplies and other environmental damage because they discharge untreated wastewater that contains microbial pathogens, suspended solids, toxics, nutrients, trash and pollutants that deplete dissolved oxygen.
EPA concluded a case in early FY2005 that we expect will be counted in EPA’s enforcement accomplishments for FY2005:
City of Los Angeles Sewer System
On October 28, 2004, the court entered a consent decree resolving SSO violations and requiring the City of Los Angeles to improve its sewer system to decrease by more than half the over 4,500 sewage spills it has experienced since 1994. Los Angeles will rebuild at least 488 miles of sewer lines and clean 2,800 miles of sewers annually to reduce raw sewage discharged by about 42 million gallons annually at a cost of $2 billion. Los Angeles operates the largest sewage collection system in the country—serving 3.8 million people. In addition to a $1.6 million penalty to be shared equally with the U.S. Treasury and the Los Angeles Regional Water Quality Control Board, the city will perform $8.5 million in environmental projects throughout the city to restore streams and wetlands and to capture and treat polluted storm drain flows.
Annual Results by Fiscal Year:
FY2008 | FY2007 | FY2006 | FY2005 | FY2004 | FY2003 | FY2002 | FY2001 | FY2000 | FY1999