Region 2 Annual Enforcement Results FY2006 - Case Hightlights

National Annual
Results 2006

Using a full range of compliance and enforcement strategies and tools, EPA Region 2 continues to bring more and more facilities into compliance with the laws that protect the environment and public health. The cases described below are a sampling of key compliance and enforcement actions taken during Fiscal Year 2006 in EPA Region 2. They are categorized by violations of specific environmental laws.

Resource Conservation and Recovery Act (RCRA)

The City of New York

On March 27, 2006, the United States District Court for the Southern District of New York entered a Consent Decree (“CD”) that resolves civil litigation brought by the United States against the City of New York regarding violations by the City of the Resource Conservation and Recovery Act, as amended ("RCRA") and its regulations covering underground storage tanks ("USTs"). Under the settlement, the City is required to pay a civil penalty of $1.3 million and it is also required to bring all its UST systems into compliance with the federal requirements.

The CD covers all federal-regulated UST systems owned or operated by the City in the New York City metropolitan area. The City has agreed to pay a civil penalty of $1.3 million within 60 days after the effective date of the CD.

Because of this action, the City has already made a serious effort to bring all its UST systems into compliance with the federal requirements, but there are still a number of tanks that are not in compliance. The cost of the required improvements/compliance program is estimated at $95 million. Under the CD, the City is committing to a schedule to bring all its UST systems into compliance. Within 30 days after the effective date of the CD, the City was required to comply with all the UST federal requirements, except for upgrades and closures. The upgrade and closure requirements will be met in two steps. First, the City is required to upgrade or permanently close most of its UST systems within one year. UST systems that would be permanently closed during this phase must be temporarily closed first within 90 days of the effective date of the Decree. Second, certain specifically identified UST systems must be upgraded or closed according to the schedule provided in Appendix A of the CD, but not later than September 2008. In addition, three of the largest City agencies - the Police and Fire Departments and the Department of Transportation - are required to implement, for no less than three years and at a cost EPA estimates to be at least $500,000, a centralized monitoring plan ("CMP"). The CMP will monitor from a central location the release detection for all the UST systems operated by those agencies. This injunctive relief, which goes beyond any explicit UST requirement in EPA regulations, was negotiated to try to improve the City's compliance with release detection requirements.

University of Puerto Rico - Mayaguez Campus

As part of a settlement of an enforcement action under RCRA, the University of Puerto Rico - Mayaguez Campus (“UPR”) will conduct a Supplemental Environmental Project (SEP) that will consist of the development of an Environmental Management System (EMS) program that will focus on managing and reducing the environmental impact of the use of materials necessary to fulfill the university's academic functions. The value of the SEP is $398,665. UPR's SEP includes a material life cycle and impact analysis that will allow the university to identify pollution prevention and source reduction strategies, as well as to identify hazardous chemicals currently in use on the campus that could be replaced with more environmentally friendly materials. The SEP also includes the development of laboratory material management procedures and policy, training to the university community, and the development of an electronic flea market to promote the use of surplus chemicals and materials inside the campus.

Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)

Reckitt Benckiser, Inc.

A Consent Agreement/Final Order (“CA/FO”) was signed on January 20th, 2006 resolving a Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) enforcement action against Reckitt Benckiser, Inc. (“Reckitt”), maker of Lysol disinfectant products, of Parsippany, NJ. In the CA/FO, Reckitt agreed to pay a penalty of $150,000. Issued on September 30, 2005, the Complaint alleged that Reckitt distributed numerous misbranded and unregistered pesticides from its production facility in Belle Meade, NJ and from a warehouse in Phoenix AZ. The Complaint cited Reckitt for 54 violations of Section 12(a)(1)(A) of FIFRA and 6 violations of Section 12(a)(1)(E) of FIFRA.

Among the corrective actions the company agreed to undertake were: the voluntary recall of all of the violative products from all of its outlets and the disposal of the products at a licensed facility as hazardous waste; the revision of its operations to avoid similar situations in the future; and, the provision of pertinent documentation to substantiate the corrective measures upon their completion.

Clean Air Act (CAA)

ConocoPhillips

On December 5, 2005, the United States District Court approved a global Clean Air Act settlement between EPA and ConocoPhillips. The settlement is expected to reduce harmful air emissions by more than 47,000 tons per year from nine ConocoPhillips refineries located in seven states. ConocoPhillips paid a civil penalty of $4.5 million and agreed to spend more than $ 10 million on SEPs.

For the company’s facility located in Linden, New Jersey, the injunctive relief is valued at $77 million. The estimated annual emission reductions from this facility, as a result of the settlement, are 1,289 tons of Nitrogen Oxide and 2,524 tons of Sulfur Dioxide. In addition, ConocoPhillips will spend $ 8.0 million towards a SEP at the New Jersey facility. ConocoPhillips, under the SEP, has agreed to cover the wastewater separator at its Linden facility to reduce harmful fugitive Volatile Organic Chemicals emissions.

Valero Refining Company

On November 23, 2005, the United States District Court approved a consent decree (“CD”) between EPA and Valero Refining Company to control air emissions at 14 of its refineries located in six states. This global settlement is part of EPA’s Petroleum Refinery Initiative. As a result of the settlement, the total emissions reductions are estimated to be 20,500 tons per year. Under the CD, Valero has also paid a civil penalty of $5.5 million of which $ 3.4 million went to the Federal government, and the remaining to the states that were co-plaintiffs. New Jersey received $600,000.

For the company’s facility located in Paulsboro, New Jersey, the injunctive relief is valued at $66,455,688. The approximate annual emissions reduction for Sulfur Dioxide is 3,845 tons, and for Nitrogen Oxide is 308 tons. In addition, Valero will spend up to $ 1 million towards a SEP that shall reduce the Volatile Organic Chemicals emissions from the wastewater system by approximately 20 tons per year, and another $200,000 for reducing truck and vehicle emissions in the Paulsboro area.

Cosmed Group, Inc.

Cosmed Group, Inc., headquartered in Jamestown, Rhode Island, sterilizes products for the food and medical industries using ethylene oxide. EPA investigations found violations of ethylene oxide Maximum Achievable Control Technology (“MACT”) requirements at six of the eight sterilization facilities in Rhode Island, New Jersey, Maryland, Illinois, Texas and California. As part of the national settlement case, on November 22, 2005, Cosmed agreed to pay a $500,000 civil penalty and spend $1 million to perform supplemental environmental projects (“SEPs”). From the civil penalty amount, EPA Region 2 was allocated $130,000 and from the SEP amount, $260,000. The injunctive relief provided for by the settlement includes a requirement that Cosmed conduct an environmental audit of its facility in New Jersey for the purpose of establishing an environmental management system that will help ensure that the company fully complies with environmental regulations in the future.

The Region 2 SEP provided for by the settlement is a project in Camden County, New Jersey to retrofit diesel vehicles at a Wastewater Treatment Facility. This SEP was developed with representatives of the New Jersey Department of Environmental Protection and the Northeast States for Coordinated Air Use Management. This project will substantially eliminate diesel emissions from 16 non-road and highway diesel vehicles used in the operation of a large wastewater treatment facility. Cosmed will spend up to $260,000 to retrofit these vehicles. The facility is located in an area known as Camden Waterfront South, a community identified by EPA as an environmental justice area of concern. Vehicles will be retrofitted with diesel oxidation catalysts and diesel particulate matter filters, and fueled with ultra-low sulfur diesel fuel. EPA estimates that the project will eliminate approximately 4.65 tons of diesel particulate matter, 40.2 tons of carbon monoxide and 7.32 tons of hydrocarbon emissions during the first three years of the project.

Clean Water Act (CWA)

Suffolk County Department of Public Works

The United States and the State of New York sued the County of Suffolk and County of Suffolk Department of Public Works under Section 309(b) and (d) of the Federal Water Pollution Control Act, 33 U.S.C. 1319(b) and (d), and under State law for alleged violations of Suffolk County’s Industrial Waste Pretreatment Program and its State Pollutant Discharge Elimination System (“SPDES”) Permits. On June 29, 2006, a Consent Judgment, Civil Action No. CV-06-1978, was entered by the U.S. District Court for the Eastern District of New York. The Consent Judgment resolves these claims and requires Suffolk County to pay a civil penalty of $300,000. The cost of the required compliance program is $900,000. The Consent Judgement also requires the County to fund a supplemental environmental project (SEP) in the amount of $700,000, and comply with its industrial pretreatment program and SPDES permits.

To satisfy the SEP requirements, Suffolk County will purchase a piece of privately-owned land of 22.8 acres located within the Core Preservation Area of Central Long Island Pine Barrens. The purchase of land by Suffolk County will protect groundwater in Suffolk County’s sole source aquifer from discharges of pollutants that may accompany development.

Puerto Rico Administration of Corrections

In 1992, the District Court for the District of Puerto Rico entered a Consent Decree (“CD”) in an action brought by the United States against the Puerto Rico Administration of Corrections (“PRAC”). The CD required PRAC to achieve compliance with the Clean Water Act (“CWA”) at its Guayama correctional facility by connecting to the Puerto Rico Aqueduct and Sewer Authority (“PRASA”) by September 1, 1992; at its Guavate correctional facility by upgrading the existing treatment works by February 1, 1993; and at its Zarzal correctional facility by upgrading the existing treatment works by June 30, 1992.

PRAC achieved timely compliance at Guayama, but did not do so at Guavate and Zarzal. A Supplemental Complaint was filed by the United States to address new violations at PRAC’s Ponce Correctional Complex Pump System and Guerrero Penal Camp Wastewater Treatment Plant. Those violations were addressed in a 1997 Supplemental Consent Decree (“1997 CD”). The 1997 CD required PRAC, among other things, to pay a penalty for violations of the 1992 CD, and to perform certain corrective actions. In addition, PRAC was required to expend at least $600,000 to supply drinking water to the La Sapia community in the municipality of Orocovis, Puerto Rico; connect its Zarzal facility to PRASA's collection system; and close the Guavate facility by July 31, 1998.

PRAC failed to comply with various requirements of the 1997 CD prompting EPA to seek compliance. Thereafter, PRAC, for the most part, achieved compliance by connecting to PRASA, the Guerrero and Zarzal facilities, and by closing the Guavate prison. Nevertheless, PRAC remained in non-compliance by its failure to supply drinking water to the La Sapia community and to provide adequate operation and maintenance at the Ponce pump system.

In July 7, 2006, the District Court entered the Second Modified Consent Decree (“2006 CD”), which requires PRAC to pay $500,000 in stipulated penalties for violations of the 1997 CD; to deposit $1.5 million in a Compliance Escrow Account; and to provide adequate operation and maintenance at the Ponce pump system. The settlement also includes a SEP, now estimated to cost $1,100,000, to supply drinking water to the small community of La Sapia in Orocovis, Puerto Rico. PRAC deposited $1,500,000 in a Performance Escrow Account to fund the SEP. The SEP will eliminate the long standing non-compliance status of this small community water supply with the Federal Safe Drinking Water Act.

Since 1992, PRAC has paid approximately $2,150,000 in penalties for violations of the CWA and eliminated the discharge of approximately 190,000 gallons per day of partially treated sanitary wastewater from four correctional facilities in Puerto Rico. Further, PRAC has obtained the construction permit and is on schedule to begin building a new water distribution system to provide drinking water to the community of La Sapia at a cost of over $1.1 million.

CasChem, Inc.

On January 13, 2006, EPA issued a Consent Agreement and Final Order ("CA/FO") in the matter of CasChem, Inc. located at 40 Avenue A, Bayonne, NY 07002 for violations of the Clean Water Act, Section 311(j), 33 U.S.C. '1321(j).

EPA had conducted an inspection at the company's Bayonne, New Jersey facility on May 25, 2000. The inspection found a number of violations, including: oil tanks and pipelines throughout the facility were covered with a film or coating of oil so visual inspections of the facility could not be properly conducted; large amounts of oil and water within diked areas compromised the volume of the containment; visible discharges from storage containers had not been corrected and accumulations of oil had not been cleaned up; and, personnel had not been properly trained in maintenance of equipment to prevent discharges of oil.

EPA notified CasChem that they were not in compliance. In correspondence dated July 24, 2000, the facility stated they would address the violations noted. EPA again inspected CasChem’s facility on May 27, 2004. This inspection also identified violations, including a number that had been cited in the prior inspection.

As a result of the enforcement action, CasChem has taken appropriate steps to achieve compliance. A program was structured that required the company to perform numerous corrective actions to the facility, including additional secondary containment for the oil storage tanks. Estimated costs to achieve compliance are $12,000. CasChem also agreed to pay a civil penalty in the amount of $60,000

These actions will serve to prevent the release of the 3,900,000 gallons of oil stored at the Bayonne facility into the waters of Newark Bay.

Puerto Rico Land Authority

As part of settlements of two related enforcement actions under Section 404 of the Clean Water Act, the Puerto Rico Land Authority will conduct two significant Supplemental Environmental Projects (“SEPs”) involving preservation of portions of a large wetland as a natural reserve. Section 404 regulates the discharge of dredged or fill material into waters of the United States, including federal wetlands The value of the SEPs are $208,000 in total, and they involve preservation of approximately 350 acres of wetlands, total. These SEPs are being combined with preservation of significant additional, contiguous acreage of the same wetland as a result of other enforcement actions with EPA, bringing the total preservation acreage to approximately twice that amount. Specifically, the Puerto Rico Land Authority will transfer its ownership of a 674-acre parcel named Finca Frailes, located in the Municipality of Loiza, to an independent conservation organization for permanent preservation. The parcel consists entirely of mangrove forest and herbaceous wetlands which has been identified by the Puerto Rico government as an area that should eventually be entirely preserved.

Superfund (CERCLA)

Grand Street Mercury Site

On August 2, 2006, the Federal District Court for the District of New Jersey approved a Consent Decree (“CD”) providing for the reimbursement of a portion of the response costs incurred by EPA and the State of New Jersey at the Grand Street Mercury Site, located in Hoboken, NJ, and resolving the liability of the settling defendant, General Electric Co. ("GE"), under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") for costs incurred at the Site. GE is a former owner and operator of the Site. Under the settlement, the United States will receive $2,805,000 plus interest and New Jersey will receive $195,000 plus interest. The CD also obligates GE to withdraw its opposition to the other CD for the site, described below, and to withdraw its petition for reimbursement filed before the Environmental Appeals Board pursuant to CERCLA Section 106(b)(2).

On August 8, 2006, the Court granted the United States' pending motion to enter an earlier CD with all the other viable potentially responsible parties for the site. Under that CD, the United States will receive $3,925,000 plus interest and New Jersey will receive $255,000 plus interest.

The entry of the two CDs resolves all federal cost recovery actions with respect to the site. All remedial action has been completed at the site. EPA plans to sell the site property, which it purchased in order to implement the remedial action, and expects to recover millions of dollars through the sale. EPA also expects that the site will be removed from the National Priorities List during calendar year 2007.

Combe Fill South Landfill Site

On October 28, 2005, the Federal District Court for the District of New Jersey approved a Consent Decree (“CD”) between EPA and certain owner-operators and transporters for costs incurred at the Combe Fill South Landfill Superfund Site in Chester, New Jersey. Funding for the settlement is coming entirely from insurers of the settling defendants. (The defendants themselves had claimed and substantiated an Ainability to pay@ under EPA's policy designed to afford relief to impecunious defendants.) The CD provides for the recovery of $12,500,000 in response costs, plus certain additional contingent amounts not to exceed $1,145,795.81, in satisfaction of the United States' and the State of New Jersey's claims against John and Joseph Filiberto, individually, Garbco, Inc. (f/k/a J. Filiberto Sanitation, Inc.), a transporter and operator, and Chester Hills, Inc., a former owner-operator of the Site. The CD is in partial settlement of litigation brought by the United States in 1998 against approximately 15 potentially responsible parties for recovery of costs and/or performance of work related to the site. That litigation has grown to include the state as co-plaintiff and some 250 third-party defendants.

Kin-Buc Landfill

On October 20, 2005, a Consent Decree (“CD”) between EPA and a number of companies and individuals was entered by the U.S. District Court for the District of New Jersey, settling the United States' claims in United States of America v. Chemical Waste Management, Inc., et al., a civil penalty and cost recovery case concerning the Kin-Buc Landfill Superfund Site in Edison, New Jersey. The CD provides for the reimbursement of EPA for $2,625,000 of its response costs at the Kin-Buc Site; payment of a $100,000 penalty and implementation of a Supplemental Environmental Project (“SEP”) at a cost of approximately $900,000. The SEP consists of granting a conservation easement on approximately 100 acres of the defendants' Edison riverfront property, and conveyance of the remaining interest in the property to a not-for-profit organization or governmental entity. Through the conservation easement, development on that property will be restricted and it will be preserved for open space in perpetuity.

Lehigh Valley Railroad Derailment

On September 22, 2006, EPA signed an Administrative Settlement Agreement and Order on Consent with Lehigh Valley Railroad Company ("LVRR") for performance of certain pre-remedial design investigations ("pre-RD"), the remedial design ("RD") of a soil vapor extraction system ("SVE"), and a remedial investigation and feasibility study ("RI/FS") for groundwater at the Lehigh Valley Railroad Derailment Superfund Site, located in Genesee, Monroe and Livingston Counties, near the Town of LeRoy, New York. The site is on the National Priorities List.

The site includes the location of a trichloroethylene ("TCE") chemical spill caused by a 1970 train derailment and the resulting contaminated groundwater plume; the groundwater plume is approximately four miles long. LVRR was the owner of the railroad track property at the time the TCE was released. Under the terms of the Settlement Agreement, in addition to conducting the pre-RD, RD of the SVE, and the RI/FS for groundwater, LVRR has agreed to reimburse EPA for certain response costs which will be incurred by the agency in connection with the site. The value of the work to be performed by LVRR under the Settlement Agreement is approximately $3.25 million.

Pascale Property

On December 14, 2005, the U.S. Bankruptcy Court approved a settlement of EPA's cost recovery claim regarding the Pascale Property Superfund Site in Washington Township, New Jersey. The site was the subject of an EPA cleanup action in 2002, during which EPA contractors removed buried ordnance. Between 1943 and 1945, the site was operated by United Wallpaper Factories, Inc. for the manufacture of M-69/napalm bombs.

On August 19, 2004, the United States filed a proof of claim in the Chapter 11 bankruptcy proceedings of Sheman Wire Company (the successor of United Wallpaper Factories, Inc.), seeking reimbursement of EPA's removal action costs at the site, which totaled $2,441,702. A settlement was reached providing EPA with an allowed general unsecured claim in the bankruptcy in the amount of $732,000. In addition, the settlement provides that the U.S. Army, which was alleged to be an operator of the site, will make a payment to EPA in the amount of $1,098,765.