SUMMARY OF DIVISION 


ACCOMPLISHMENTS
 

FISCAL YEAR 2015
 
Mitten Butte in Monument Valley, Utah, USA, at sunset, Photo by Wikimedia Commons 
CONTENTS
 

FOREWORD 7
 

OVERVIEW OF THE ENVIRONMENT AND NATURAL RESOURCES DIVISION 12
 

PROTECTING OUR NATION’S AIR, LAND, AND WATER 18
 

ENSURING CLEANUP OF OIL AND HAZARDOUS WASTE 35
 

PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA’S WILDLIFE AND
 

NATURAL RESOURCES 45
 

MAKING PROGRESS TOWARD ACHIEVING THE GOAL OF ENVIRONMENTAL
 

JUSTICE 56
 

ENFORCING THE NATION’S CRIMINAL POLLUTION AND WILDLIFE LAWS 69
 

PROTECTING VITAL FEDERAL PROGRAMS AND INTERESTS 80
 

PROMOTING NATIONAL SECURITY, ENERGY SECURITY, AND MILITARY
 

PREPAREDNESS 91
 

PROTECTING TRIBAL RIGHTS AND RESOURCES AND ADDRESSING TRIBAL
 

CLAIMS 98
 

SUPPORTING THE DIVISION’S STAFF 105
 
Bald Eagle, Photo by Wikimedia Commons 

Wildflowers, Copper Basin, Nevada, Photo by Wikimedia 

6 | foreword
 
FOREWORD
 

Assistant Attorney General John C. Cruden 

This is my second year as Assistant Attorney General 

of the Environment and Natural Resources Division. 

I have previously had the honor and privilege of 

spending over two decades at the Department 

of Justice, first as Chief of the Environmental 

Enforcement Section and then as a career Deputy 

Assistant Attorney General. During that time, I have 

witnessed the extraordinary efforts of public servants 

who work countless hours representing the United 

States in federal courts across our great nation. Those 

career professionals who have dedicated their lives 

to public service are the backbone of the Division: 

upholding our laws, improving the environment, 

protecting our natural resources, and ensuring the 

health and safety of our citizens. 

In existence for over one hundred years, the Division is built upon a history of service, integrity, 

and adherence to the rule of law. Our litigation responsibilities are broad: enforcing the nation’s 

civil and criminal pollution-control laws, defending environmental challenges to federal agency 

programs and activities, representing the United States in matters concerning the stewardship of 

the nation’s natural resources and public lands, acquiring real property, bringing and defending 

cases under the wildlife protection statutes, and litigating cases concerning the resources and 

rights of Indian tribes and their members. 

In this report you will find the highlights of the Division’s exceptional success in 2015. The 

Division successfully litigated 864 cases and handled a total of 6,729 cases, matters, and 

appeals. We achieved over $2.7 billion in civil and criminal fines, penalties, and costs recovered. 

The estimated value of federal injunctive relief—clean-up and pollution prevention actions 

funded by private parties—exceeded $6.4 billion. ENRD also saved the taxpayers money, 

avoiding claims of over $3 billion. The Division achieved a favorable outcome in 96 percent of 

cases, resulting in cleaner air, land, and water in the United States. In several areas, our achievements were the highest in the Division’s history. 

foreword | 7
 
 

A key accomplishment of the past year was the negotiation of a historic settlement in the Deepwater 

Horizon litigation that resolves civil claims of the United States and five Gulf States against BP, 

arising from the April 20, 2010 blowout of the Macondo well and the massive oil spill in the Gulf 

of Mexico. BP will pay the U.S. and the Gulf States more than $20 billion, including: a $5.5 billion 

(federal) civil penalty, more than $8.1 billion in natural resource damages, $600 million in further 

reimbursement of clean-up costs and some royalty payments, and up to $6 billion in economic 

damage payments for the Gulf States or their local units of government. This resolution is extraordinary in its size and scope. It is the largest settlement with a single entity in the Department of 

Justice’s history, including the largest civil penalty ever awarded under the Clean Water Act, the 

largest ever natural resources damages settlement, and massive economic damages payments to our 

State partners. The final settlement includes a comprehensive natural resource damages restoration 

plan that will guide the recovery of the Gulf for many years into the future. Joining in the consent 

decrees were the Governors and Attorneys General of the five Gulf States and five federal agencies. 

The Division continues to partner with many states to enforce our nation’s pollution laws, prosecute 

traffickers in protected wildlife, and defend challenges to critical infrastructure projects. For 

example, the Division worked closely with the State of California to settle a Clean Air Act case against 

Hyundai Motor Company. The complaint alleged that the defendants sold nearly 1.2 million cars and 

SUVs that will emit approximately 4.75 million metric tons of greenhouse gases in excess of what the 

automakers certified to EPA. Under the settlement, the automakers paid a $100 million civil penalty, 

the largest ever under the Clean Air Act, to resolve the alleged violations and will spend approximately $50 million on measures to prevent future violations. In 2015, I established a Counselor 

for State and Local Affairs to emphasize our commitment to cooperative federalism. Under her 

leadership, we were able to work with 14 states in joint enforcement, providing them over $8 million 

in civil penalties and achieving exceptional environmental results. 

In 2015, the Division continued its record of achievement in bringing successful civil and criminal 

enforcement, filing more cases and realizing exceptional results that received national attention. 

In Duke Energy, subsidiaries of the nation’s largest utility pled guilty to nine criminal violations of 

the Clean Water Act. They also agreed to pay a $68 million criminal fine and spend $34 million on 

environmental projects and land conservation to benefit rivers and wetlands in North Carolina and 

Virginia. Charges in this case resulted from the massive coal ash spill from the Dan River steam 

station into the Dan River near Eden, North Carolina, in February 2014. Coal ash contains contaminants like mercury, cadmium and arsenic. Without proper management, these contaminants can 

pollute waterways, groundwater, drinking water and the air. 

In 2015, ENRD also brought cases to address new areas of concern, such as prosecuting renewable 

fuel fraud under the Clean Air Act. Congress created the renewable fuel standard (RFS) program 

to curtail greenhouse gas emissions and expand the nation’s renewable fuels sector while reducing 

reliance on imported oil. The RFS program was authorized under the Energy Policy Act of 2005 

and expanded under the Energy Independence and Security Act of 2007. Under the RFS program, 

properly manufactured biodiesel is eligible for a tax credit as well as another valuable credit called 

a Renewable Identification Number. Programs like the RFS open the path toward energy independence and curb the impact of climate change. When individuals seek to exploit them, these purposes 

are blocked, American businesses are hurt and the Treasury of the United States is depleted. The 

results of our efforts in this area have already been exemplary, including significant jail sentences 

and over $180 million in restitution and forfeiture. In 2015, ENRD also sought and was given 

responsibility for criminal worker safety prosecutions. Under the new initiative, ENRD and the 

U.S. Attorneys Offices will work with several offices within the Department of Labor, including the 

Occupational Safety and Health Administration, to investigate and prosecute worker endangerment 

8 | foreword
 
violations. ENRD has embraced its new role, which will enable it to prevent and deter crimes that put 

the lives and the health of workers at risk. 

In our civil enforcement cases, we have increasingly sought company-wide relief for environmental violations, and this report details some of our most significant achievements in this area. 

For example, hydrochlorofluorocarbons (HCFCs) deplete the stratospheric ozone layer, allowing 

dangerous amounts of cancer-causing ultraviolet rays from the sun to reach the earth and lead to 

adverse health effects including skin cancers, cataracts, and suppressed immune systems. In United 

States v. Costco Wholesale Corp. (N.D. Cal.), Costco, one of the nation’s largest retailers, settled a 

case after violating the Clean Air Act by failing to promptly repair refrigeration equipment leaking 

HCFC-22. In the settlement reached last year, the company agreed to cut its emissions of HCFC-22 

from leaking refrigeration equipment at more than half of its stores nationwide. Company-wide case 

settlements such as this one benefit the communities located near the facilities covered by these 

settlements, the government, which achieves an expedited resolution on an efficient scale of past and 

ongoing violations, and industry, which can obtain a negotiated schedule for technological upgrades 

that is efficient and consistent with company operations. We also continued our initiative against 

coal-fired power plants that were operating illegally, and have now achieved settlements that will 

reduce harmful pollution by over 2 million tons each year once the more than $17 billion in required 

pollution controls are installed and functioning. 

One of my goals for the year was advancing environmental justice, and I have worked closely with 

the Division’s counselor for environmental justice to achieve that goal. ENRD is a key member of 

the Interagency Working Group on Environmental Justice and, at our request this group agreed to 

establish a new subgroup focused on Native American issues. We have provided training, participated in community outreach, integrated environmental justice principles into our litigation, and 

prepared a comprehensive plan of action. And, we have now delivered on specific cases, such as 

the litigation described in this report concerning the Four Corners Power Plant, located within the 

boundaries of the Navajo Nation in New Mexico. The Consent Decree we reached in this important 

Clean Air Act case requires the owner of the coal-fired power plant to install state-of-the-art pollution 

controls to eliminate harmful pollution. While that act alone will dramatically improve the lives of 

the Native Americans in the area, the settlement also provides for a health care trust fund and the 

replacement of the tribes’ wood-burning stoves with modern energy-effi cient stoves. 

The Division also represents the Department of Defense in a number of cases, many with significant 

national security and military readiness implications. We have litigated cases to expand and 

modernize the military’s presence throughout the country, and defended the military from challenges 

concerning its presence on Okinawa Island and in the Pacific Ocean. Our energy docket is expanding, 

and we achieved a number of key victories in cases involving the intersection of energy security issues 

and natural resources law. In particular, we have successfully defended a number of solar and wind 

power projects on public land. Our Native American docket of cases is quite significant, and we filed 

an important number of affirmative cases this year. We have supported tribal authority over their 

land and resources and defended tribal interests in water adjudications, agency authority to acquire 

land in trust for tribes, as well as the federal recognition process. For example, in Agua Caliente 

Band of Cahuilla Indians v. Coachella Valley Water District (C.D. Cal.), a district court found– 

as the tribe and United States had argued–that the tribe’s federal reserved water right included 

groundwater. In addition, we expanded our Indian Child Welfare Act initiative with successful 

amicus briefs, and our vigorous defense of the Indian Child Welfare Act. 

ENRD also obtained many favorable decisions while defending challenges to federal agency actions. 

For example, the Division defended the President’s Clean Power Plan, which addresses the Nation’s 

most important and urgent environmental challenge, climate change. The Division will continue 

foreword | 9
 
to defend that rule in 2016. The Division also successfully defended EPA’s Cross-State Air Pollution 

Rule. This ground-breaking rule requires states to significantly improve air quality by reducing power 

plant emissions that contribute to ozone and fine particle pollution in other states. Separately, in the 

Third Circuit Court of Appeals, we successfully turned back challenges to nitrogen, phosphorus, and 

sediment effluent standards developed to protect the Chesapeake Bay. These standards established the 

Chesapeake Bay Total Maximum Daily Load (TMDL), a historic and comprehensive “pollution diet” 

for the District of Columbia and six states within the Chesapeake Bay watershed. This TMDL includes 

accountability features to guide actions to restore clean water in the Bay. The Supreme Court denied 

a petition for certiorari in the case on February 29, 2016. Finally, in another case, ENRD attorneys 

successfully defended a National Marine Fisheries Service penalty assessment of $1.5 million for 

violations of regulations intended to protect tuna stocks after the defendants knowingly set purse seine 

fishing gear on whales to harvest tuna. In so doing, ENRD ensured that all participants in the fishery 

operate on a level playing field and that the fishery remains sustainable into the future. 

Another important priority of mine has been the critical work the Division does to combat illegal 

wildlife trafficking, an area that is also a high priority for the entire Administration. Along with senior 

leadership from the Departments of State and the Interior, I am a co-chair of the Task Force to Combat 

Wildlife Trafficking. The Task Force is comprised of 17 federal agencies and offices that seek through 

coordinated efforts to bring a “whole of government” approach to combatting the pernicious trade in 

wildlife that is decimating some of our most iconic species. This year I testified on the issue before 

the House Foreign Affairs Committee, and was honored to lead the U.S. delegation to the Kasane 

Conference on the Illegal Wildlife Trade, held in Botswana. Our wildlife enforcement activities are at 

an all-time high, with significant prosecutions in a multitude of cases, including United States v. Xiao 

JuGuan (S.D.N.Y.). On November 12, 2015, a United States federal court convicted the defendant, a 

Canadian national and partner in a Chinese art and antiques business. The defendant was sentenced to 

two years in prison for his role in an on-line scheme to traffic in and smuggle from the United States to 

China 16 libation cups carved from rhinoceros horn and valued at more than $1 million. The defendant 

pleaded guilty to smuggling the rhino horn products without the required declarations and permits. 

The defendant was also ordered to serve two years of supervised release and to forfeit $1 million and 

304 pieces of carved ivory. 

These are only a few examples of the extraordinary work of the Division. I am very proud of the 

Division’s accomplishments last year. At the end of 2015, I had the pleasure of attending the Awards 

Ceremony conducted by the Partnership for Public Service and accepting, on behalf of our Division, 

the award for being one of The Best Places to Work in the Federal Government 2015. Based on 

information collected through the Office of Personnel Management’s 2015 Federal Employee Viewpoint 

Survey, ENRD was ranked number four among 320 federal agency subcomponents. The Division’s 

scores once again make ENRD the number one best place to work at the Department of Justice, and 

the Department itself ranked as the number three “large agency” in the Federal Government. Every day 

that I come to work, I am awed by the warmth, intelligence and dedication of the women and men who 

work in this great Division. 

In closing, I would like to highlight my goals for the Division for coming year: 

• Goal 1: Enforce the nation’s bedrock environmental laws that protect air, land, and water for all 

Americans 

• Goal 2: Vigorously represent the United States in federal trial and appellate courts, including by 

defending EPA’s rulemaking authority and effectively advancing other agencies’ missions and priorities 

10 | foreword
 
• Goal 3: Protect the public fisc and defend the interests of the United States 

• Goal 4: Advance environmental justice through all of the Division’s work and promote and 

defend tribal sovereignty, treaty obligations, and the rights of Native Americans 

• Goal 5: Provide effective stewardship of the nation’s public lands, natural resources and 

animals, including fighting for the survival of the world’s most iconic species and marine 

resources, and working across the government and the globe to end the illegal trade in wildlife. 

John C. Cruden 

Assistant Attorney General 

Environment and Natural Resources Division 

United States Department of Justice 

April 22, 2016 

foreword | 11
 
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OVERVIEW OF THE
 

ENVIRONMENT AND NATURAL
 

RESOURCES DIVISION
 

Source: DOJ Website 

The richness and complexity of the Division’s history is — Law and Policy

inseparable from the larger story of the growth and maturation — Natural Resources

of American society. During the 19th Century, the federal — Wildlife and Marine Resources

government sought to encourage settlement by transferring 

the nation’s public lands to private owners. Federal land 

policy changed abruptly at the turn of the century, when the 

government began to focus on retaining ownership of public lands, and managing the resources 

on those lands, for the benefit of the entire nation. 

On November 16, 1909, Attorney General George Wickersham signed a two-page order creating 

“The Public Lands Division” of the Department of Justice to step into the breach and address the 

critical litigation that ensued. He assigned all cases concerning “enforcement of the Public Land 

Law,” and relating to Indian affairs, to the new Division, and transferred a staff of nine—six 

attorneys and three stenographers—to carry out those responsibilities. 

As the nation grew and developed, so did the responsibilities of the Division, and its name 

changed to the “Environment and Natural Resources Division” (ENRD) to better refl ect those 

responsibilities. The Division celebrated its 100th anniversary on November 16, 2009. Today, 

we are mindful of the strong legacy that we have inherited and the opportunities and challenges 

that lie ahead of us. The Division has a main office in Washington, D.C., and fi eld offi ces across 

the United States. It has a staff of over 600 people, and is organized into ten sections. It 

currently has over 3,183 active cases and matters and has represented virtually every federal 

12 | enrd
 
 

 

Yellowstone National Park, National Park Service photo 

Everglades National Park, National Park Service photo 

enrd | 13
 
WHAT WE DO
 

The Environment and Natural Resources Division has primary responsibilities for litigation as well as policy work on 

behalf of United States regarding: 

— Prevention and Cleanup of Pollution 

— Environmental Challenges to Federal Programs and Activities 

— Stewardship of Public Lands and Natural Resources 

— Property Acquisition for Federal Needs 

— Wildlife Protection 

— Indian Rights and Claims 

The Division has the largest environmental law practice in the country. 

agency in connection with cases arising in all fifty states and the United States territories. 

One of the Division’s primary responsibilities is to enforce federal civil and criminal 

environmental laws, such as the Clean Air Act, the Clean Water Act, the Oil Pollution Act, 

the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, 

Compensation, and Liability Act, and the Safe Drinking Water Act. The main federal agencies 

that the Division represents in these areas are the U.S. Environmental Protection Agency (EPA) 

and the U.S. Army Corps of Engineers. The Division’s sections that carry out this work are the 

Environmental Enforcement Section, the Environmental Defense Section, and the 

Environmental Crimes Section. The Chiefs of these sections are W. Benjamin Fisherow, 

Letitia Grishaw, and Deborah L. Harris, respectively. 

A substantial portion of the Division’s work includes litigation under a wide array of statutes 

related to the management of public lands and associated natural and cultural resources. 

All varieties of public lands are affected by ENRD’s litigation docket, ranging from entire 

ecosystems, such as the nation’s largest sub-tropical wetlands (the Everglades) and rain 

forest (the Tongass), to individual rangelands or wildlife refuges, to historic battlefi elds and 

monuments. Examples of ENRD’s land and natural resources litigation include original actions 

before the U.S. Supreme Court to address interstate boundary and water allocation issues, and 

suits challenging federal agency decisions that affect economic, recreational, and religious uses 

of the national parks, national forests, and other public lands; challenges brought by individual 

Native Americans and Indian tribes relating to the United States’ trust responsibility; and 

actions to recover royalties and revenues from development of natural resources, including 

subsurface minerals. The Division primarily represents the land management agencies of the 

United States in these cases, including the U.S. Department of Agriculture’s Forest Service 

and the U.S. Department of the Interior’s (Interior) National Park Service, Bureau of Land 

Management (BLM), and U.S. Fish and Wildlife Service (FWS). The Natural Resources 

Section is primarily responsible for these cases. The Chief of the Natural Resources Section is 

Lisa L. Russell. 

The Division’s Wildlife and Marine Resources Section handles civil cases arising under 

the fish and wildlife conservation laws, including suits defending agency actions under the 

Endangered Species Act (ESA), which protects endangered and threatened animal and plant 

14 | enrd
 
species; the Marine Mammal Protection Act, which protects marine mammals, such as whales, seals, and 

dolphins; and the Magnuson-Stevens Fishery Conservation and Management Act, which regulates fishery 

resources. The Chief of the Wildlife and Marine Resources Section is Seth Barsky. The Environmental 

Crimes Section brings criminal prosecutions under these laws and under the Lacey Act against people 

who are found smuggling wildlife and plants into or out of the United States or across state boundaries. 

The main federal agencies that ENRD represents in this area are FWS and the National Oceanic and 

Atmospheric Administration’s National Marine Fisheries Service (NMFS). 

Division cases frequently involve allegations that a federal program or action violates constitutional 

provisions or environmental statutes. Examples include Fifth Amendment takings claims, in which 

landowners seek compensation based on the allegation that a government action has precluded 

development of their property, and suits alleging that a federal agency has failed to comply with the National 

Environmental Policy Act (NEPA). Both takings and NEPA cases can affect vital federal programs, such 

as those governing the nation’s defense capabilities (including military preparedness, weapons programs, 

nuclear materials management, and military research), renewable energy development, and food supply. 

In other cases, plaintiffs challenge regulations promulgated to implement the nation’s pollution control 

statutes, such as the Clean Air Act and Clean Water Act, or activities at federal facilities that are claimed 

to violate such statutes. The Division’s main clients in these areas include the Department of Defense, 

EPA, the U.S. Army Corps of Engineers, the U.S. Department of Transportation, and Interior’s various 

components. The Natural Resources Section and the Environmental Defense Section handle 

these cases. 

Another portion of the Division’s caseload consists of eminent domain litigation. This important work, 

undertaken with Congressional direction or authority, involves the acquisition of land for the federal 

government, including for national parks, the construction of federal buildings, and national securityrelated purposes. The Land Acquisition Section is responsible for this litigation. The Chief of the 

Land Acquisition Section is Andrew Goldfrank. 

The Division’s Indian Resources Section litigates on behalf of federal agencies to protect the rights 

and resources of federally recognized Indian tribes and their members. This includes defending against 

challenges to statutes and agency actions that protect tribal interests, and bringing suits on behalf 

of federal agencies to protect tribal rights and natural resources. The Chief of the Indian Resources 

Section is Craig Alexander. The rights and resources at issue include water rights, the ability to acquire 

reservation land, and hunting and fishing rights, among others. In addition, the Natural Resources 

Section defends claims asserted by Indian tribes and tribal members against the United States. The 

main federal agency that the Division represents in connection with this work is Interior’s Bureau of 

Indian Affairs. 

The Appellate Section handles the appeals of all cases litigated by Division attorneys in the trial 

courts, and works closely with the Department of Justice’s Office of the Solicitor General on ENRD 

cases that reach the U.S. Supreme Court. The Chief of the Appellate Section is James Kilbourne. 

The Law and Policy Section 

advises and assists the Assistant 

Attorney General on environmental 

and natural resources legal and 

policy questions, particularly 

those that affect multiple 

sections in the Division. It 

reviews and analyzes legislative 

proposals on environmental and 

natural resources issues of importance to the Division, handles the Division’s response 

Source: DOJ Website 

enrd | 15 
to congressional requests, provides comments on behalf of ENRD on federal agency rulemakings, 

and handles, with the Appellate Section, amicus curiae participation in cases of importance to the 

United States. The Law and Policy Section leads the Division’s efforts on international issues, often in 

collaboration with the Environmental Crimes Section, and handles various special projects on behalf 

of Division leadership. Attorneys in the Law and Policy Section also serve as the Division’s ethics and 

professional responsibility officer and counselor, its alternative dispute resolution counselor, and 

coordinate the Division’s Freedom of Information Act and correspondence work. The Chief of the Law 

and Policy Section is Karen Wardzinski. 

The Executive Office is the operational management and administrative support section for ENRD. 

It provides financial management, human resources, information technology, procurement, facilities, 

security, litigation support, and other important services to the Division’s workforce. The Executive 

Office takes advantage of cutting-edge technology to provide sophisticated automation facilities to ENRD 

employees. By utilizing new technologies and innovative business processes—and by in-sourcing services 

traditionally provided by contractors and equipping employees to better serve themselves—the Executive 

Office is able to achieve significant cost savings for the American public on an annual basis. The Executive 

Officer of the Division is Andrew Collier. 

The Front Office is a cadre of extraordinary attorneys who ensure the Division’s work is accomplished 

in a timely and professional manner each day. The Principal Deputy Assistant Attorney General is Sam 

Hirsch, who supervises the Appellate Section and Indian Resources Section. Lisa Jones supervises the 

Law and Policy Section and Environmental Defense Section. Career Deputy Jean Williams supervises 

the Natural Resources Section, the Environmental Crimes Section, and Wildlife and Marine Resources 

Section. Career Deputy Bruce Gelber supervises the Environmental Enforcement Section and the Land 

and Acquisition Section. In addition, Cynthia Ferguson is the Counselor for Environmental Justice, 

Andrea Berlowe is the Counselor for State and Local Matters, and Sarah Himmelhoch is the Senior 

Litigation Counsel for E-Discovery. The Chief of Staff is Varu Chilakamarri. Finally, the Division special 

assistant is Paulo Palugod. 

16 | enrd
 
ENRD CLIENT AGENCIES
 

To learn more about the client agencies referenced in this report, visit their websites:
 

United States Department of Agriculture www.usda.gov 

United States Forest Service www.fs.fed.us 

Animal and Plant Health Inspection Service www.aphis.usda.gov 

United States Department of Commerce 

National Marine Fisheries Service www.nmfs.noaa.gov 

National Oceanic and Atmospheric Administration www.noaa.gov 

United States Department of Defense 

United States Air Force www.af.mil 

United States Army www.army.mil 

United States Army Corps of Engineers www.usace.army.mil 

United States Marine Corps www.marines.mil 

United States Navy www.navy.mil 

United States Department of Energy www.energy.gov 

Environmental Protection Agency www.epa.gov 

General Services Administration www.gsa.gov 

United States Department of Homeland Security www.dhs.gov 

United States Customs and Border Protection www.cbp.gov 

Federal Emergency Management Agency www.fema.gov 

United States Coast Guard www.uscg.mil 

United States Department of the Interior www.doi.gov 

Bureau of Indian Aff airs www.bia.gov 

Bureau of Land Management www.blm.gov 

Bureau of Ocean Energy Management www.boem.gov 

Bureau of Reclamation www.usbr.gov 

Bureau of Safety and Environmental Enforcement www.bsee.gov 

National Park Service www.nps.gov 

Offi ce of Surface Mining Reclamation and Enforcement www.osmre.gov 

United States Fish and Wildlife Service www.fws.gov 

United States Geological Survey www.usgs.gov 

United States Department of Transportation www.dot.gov 

Federal Aviation Administration www.faa.gov 

Federal Highway Administration www.fhwa.dot.gov 

Federal Transit Administration www.fta.dot.gov 

Pipeline Safety and Hazardous Materials Administration www.phmsa.dot.gov 

United States Maritime Administration www.marad.dot.gov 

United States Department of Veterans Aff airs www.va.gov 

enrd | 17
 
PROTECTING 


OUR NATION’S
 

AIR, LAND, AND WATER
 

The Division remains committed to civil and criminal enforcement of the nation’s environmental laws to address air pollution from the largest and most harmful sources; improve 

municipal wastewater and stormwater treatment and collection to keep raw sewage, contaminated stormwater, and other pollutants out of our nation’s rivers, streams, and lakes; compel 

polluters to clean up hazardous waste or repay the government for the costs it incurs conducting 

cleanups; and prosecute criminal violations of environmental and other federal laws. The 

Division continues to enforce applicable laws and regulations to ensure that we protect human 

health and the environment. 

Obtaining Company-Wide Relief for Environmental Violations 

Company-wide case settlements benefit everyone. Communities located near the facilities 

covered by these settlements benefit from lower levels of pollution and, where appropriate, 

environmentally beneficial projects. The government benefits through expedited resolution 

on an efficient scale of historic and ongoing violations. Industry benefits because it gains the 

certainty of knowing that it is bringing its operations into compliance with the nation’s laws, 

avoids the cost and risk of additional litigation, and can obtain a negotiated schedule for 

important technological upgrades that is efficient and consistent with company operations. 

• Permits issued under the CWA can allow for the discharge of certain pollutants in limited 

amounts to rivers, streams, and other water bodies. Permit holders are required to monitor 

discharges regularly and report results to the state agency that issued the permit. In United 

States v. Alpha Natural Resources, Inc. (S.D. W.Va.), the government complaint alleged that, 

between 2006 and 2013, Alpha and its subsidiaries routinely violated limits in 336 of its state-issued CWA permits, resulting in the discharge of excess amounts of pollutants into hundreds 

of rivers and streams in Kentucky, Pennsylvania, Tennessee, Virginia, and West Virginia. The 

violations also included discharge of pollutants without a permit. Alpha Natural Resources is 

one of the nation’s largest coal companies. 

In the settlement, Alpha Natural Resources, Alpha Appalachian Holdings (formerly Massey 

Energy), and 66 subsidiaries agreed to spend an estimated $200 million to install and operate 

18 | air, land, and water
 
USGS photo 

BLM photo 

air, land, and water | 19 

wastewater treatment systems and to implement comprehensive, system-wide upgrades to reduce 

discharges of pollution from coal mines in Kentucky, Pennsylvania, Tennessee, Virginia, and West 

Virginia. The settlement covers approximately 79 active mines and 25 processing plants in the five 

states. 

In total, EPA documented at least 6,289 violations of permit limits for pollutants that include iron, 

pH, total suspended solids, aluminum, manganese, selenium, and salinity. The violations occurred at 

794 different discharge points, or outfalls. Monitoring records also showed that on many occasions 

multiple pollutants were discharged in amounts of more than twice the permitted limit. Most 

violations stemmed from the companies’ failure to properly operate existing treatment systems, install 

adequate treatment systems, and implement appropriate water handling and management plans. 

EPA estimated that the upgrades and advanced treatment required by the settlement will reduce 

discharges of total dissolved solids by over 36 million pounds each year, and will cut metals and other 

pollutants by approximately nine million pounds per year. The companies also paid a civil penalty of 

$27.5 million for thousands of permit violations, the largest penalty in history under Section 402 of 

the CWA. 

In addition, the companies must build and operate treatment systems to eliminate violations of 

selenium and salinity limits, and implement comprehensive, system-wide improvements to ensure 

future compliance with the CWA. These improvements, which apply to all of Alpha’s operations 

in Appalachia, include developing and implementing an environmental management system and 

periodic internal and third-party environmental compliance audits. 

The settlement also resolved violations of a prior 2008 settlement with Massey Energy, and applies 

to the facilities and sites formerly owned by the company. Under the 2008 settlement, Massey paid a 

$20 million penalty to the federal government for similar CWA violations, in addition to over a million 

dollars in stipulated penalties over the course of the next two years. Alpha purchased Massey in June 

2011 and, after taking over the company, worked cooperatively with the government in developing the 

terms of the settlement. Alpha’s Wyoming operations are not included in the settlement. 

The State of West Virginia and the Commonwealths of Pennsylvania and Kentucky were co-plaintiffs 

with the United States and received portions of the penalty based on the number of violations in each 

state. West Virginia received $8,937,500, Pennsylvania $4,125,000, and Kentucky $687,500. 

• Hydrochlorofluorocarbons (HCFCs) deplete the stratospheric ozone layer, allowing dangerous 

amounts of cancer-causing ultraviolet rays from the sun to reach the earth, which leads to adverse 

health effects including skin cancers, cataracts, and suppressed immune systems. Pursuant to the 

Montreal Protocol, the United States is implementing strict reductions of ozone-depleting refrigerants, 

including a production and importation ban by 2020 of HCFC-22, also known as R-22, a common 

refrigerant used by supermarkets. Moreover, as a greenhouse gas, HCFC-22 is up to 1,800 times more 

potent than carbon dioxide. 

In United States v. Costco Wholesale Corp. (N.D. Cal.), Costco, one of the nation’s largest retailers, 

agreed to cut its emissions of ozone-depleting and greenhouse gases from leaking refrigeration 

equipment at more than half of its stores nationwide. Specifically, Costco will fix refrigerant leaks and 

make other improvements at 278 of its stores, which EPA estimates will cost about $2 million over 

three years. Costco also will pay $335,000 in civil penalties. 

20 | air, land, and water
 
 

Costco violated the Clean Air Act by failing to promptly repair refrigeration equipment leaking 

HCFC-22 between 2004 and 2007. Costco also failed to keep adequate records of the servicing 

carried out on its refrigeration equipment to prevent harmful leaks. 

The settlement requires Costco to retrofit or replace commercial refrigeration equipment at 30 of 

its stores to reduce ozone-depleting and greenhouse gas emissions. Costco must also implement a 

refrigerant management system to prevent and repair coolant leaks and reduce its corporate-wide 

average leak rate at least 20 percent by 2017. In addition, Costco will install and operate environmentally-friendly glycol refrigeration systems and centrally monitored refrigerant-leak detection systems 

at all new stores. 

DEFENDING THE CLEAN POWER 

PLAN 

Pursuant to the President’s Climate Action Plan, EPA 

has developed regulations under the Clean Air Act 

to set carbon dioxide emission standards for new 

and existing coal and natural gas-fired power plants. 

When fully implemented in 2030, the rules will reduce 

carbon dioxide emissions from coal and natural 

gas-fired power plants by over 30% from 2005 levels. 

Those CO2 emission reductions make up a primary 

part of the United States’ commitment in the 2015 

Paris Climate Change Agreement to reduce domestic 

greenhouse gas emissions. The Clean Power Plan 

was published in the Federal Register on October 23, 

2015, and formally consists of two separate but related 

rules–one for existing power plants and one for new 

and modified power plants. 

Opponents of the rules brought multiple rounds of 

litigation even before the rules were finalized. In 

Murray Energy Corp. v. EPA (D.C. Cir.) and West 

Virginia v. EPA (D.C. Cir.), petitioners challenged 

EPA’s proposed Clean Air Act rule to limit carbon 

dioxide emissions from fossil fuel-fi red power 

plants and sought an extraordinary writ prohibiting 

conclusion of the rulemaking. ENRD briefed the cases 

and presented oral argument. In orders issued on 

June 9, 2015, the D.C. Circuit dismissed the petitions, 

holding that the court lacked jurisdiction because EPA 

had not taken final agency action. With respect to the 

request for an extraordinary writ of prohibition, the 

court explained that the All Writs Act provides no 

authority for the court to “circumvent bedrock finality 

principles in order to review proposed agency rules.” 

Opponents of the rules tried again after the rules 

were signed by EPA’s Administrator in August 

2015, but before they were published in the federal 

Register. In In re West Virginia (D.C. Cir.) and In 

re Peabody Energy (D.C. Cir.), West Virginia and 14 

other states, and a group of coal industry interests, 

filed “Emergency Petitions for Extraordinary Writ” 

asking the D.C. Circuit to stay all of the deadlines 

in the Clean Power Plan pursuant to the All Writs 

Act. On September 9, 2015, the D.C. Circuit denied 

the petitions. In a short order, the court held that 

“petitioners have not satisfied the stringent standards 

that apply to petitions for extraordinary writs that 

seek to stay agency action.” 

Since the rules were published in October 2015, 39 

petitions for review of the existing source rule were 

filed on behalf of over 100 state and industry parties, 

and 16 petitions for review of the new and modified 

source rule were filed. On February 9, the Supreme 

Court stayed the Clean Power Plan’s implementation 

while the litigation is pending. ENRD is confi dent that 

the rule will be upheld when the courts consider it on 

the merits. ENRD will continue its vigorous defense 

of the Clean Power Plan in FY16 as the litigation 

continues in the D.C. Circuit. 

Reducing Air Pollution from Power Plants 

The Coal-Fired Power Plant Enforcement Initiative 

The Division has continued to litigate civil claims under the Clean Air Act against operators of 

coal-fired electric power generating plants. Through fiscal year 2015, these matters have settled on 

terms that will reduce emissions of SO2 and NOx by approximately 2.5 million tons each year once 

the more than $17.3 billion in required pollution controls are fully functioning. The violations at 

issue in these cases arose when companies engaged in major life-extension projects on aging facilities 

air, land, and water | 21 

 

without installing required state-of-the-art pollution controls. The result was excess air pollution that 

degraded forests, damaged waterways, contaminated reservoirs, and otherwise adversely affected the 

health of our citizens, especially the elderly, the young, and asthma sufferers. 

Coal-fired power plants emit, among other things, SO2, NOx, and particulate matter. SO2 and NOx 

contribute to acid rain and ground-level ozone, or smog. SO2 and NOx can irritate the lungs and aggravate 

preexisting heart or lung conditions. NOx and particulate matter can cause serious respiratory illnesses 

and aggravate asthma. Particulate matter, for example, contains microscopic particles that can travel deep 

into the lungs and cause difficulty breathing and decreased lung function. 

In fiscal year 2015, the Division concluded two settlements under the Coal-Fired Power 

Plant Enforcement Initiative, bringing the total to 30. 

• In United States v. Consumers Energy (E.D. Mich.), the United States alleged that Consumers Energy, 

a subsidiary of CMS Energy Corporation that provides electric service in the Lower Peninsula of Michigan, 

violated the Clean Air Act by modifying its facilities in a way that caused the release of excess SO2 and 

NOx. To settle the United States’ claims, Consumers Energy agreed to install pollution control technology, 

continue operating existing pollution controls, and comply with emission rates to reduce harmful air 

pollution from the company’s fi ve coal-fired power plants located in West Olive, Essexville, Muskegon, 

and Luna Pier, Michigan. EPA expects that the actions required by the settlement will reduce harmful 

emissions by 46,500 tons per year, which includes approximately 38,400 tons per year of SO2 and 8,100 

tons per year of NOx. The company estimates that it will spend approximately $1 billion to implement the 

required measures. 

The settlement requires that the company install 

pollution control technology and implement other 

measures to reduce SO2 and particulate matter 

emissions from its fi ve coal-fired power plants, which 

comprise 12 operating units. Among other requirements, the company must comply with declining 

system-wide limits for SO2 and NOx, meet emission 

rates, retire five operating units, and retire two other 

units or convert them to run on natural gas. 

The settlement requires Consumers Energy to pay a 

civil penalty of $2.75 million and spend at least $7.7 

million on projects that will benefit the environment 

and local communities. Five hundred thousand dollars 

of the $7.7 million will to go to the National Park 

Service to restore land, watersheds, or forests in, or 

to combat invasive species in, the Cuyahoga Valley 

National Park and the Sleeping Bear Dunes National 

Lakeshore Park. The remaining $7.2 million will be 

spent on a series of mitigation projects. Potential 

projects include efforts to reduce vehicle emissions, 

install renewable-energy and energy-effi ciency projects, 

replace or retrofit wood-burning appliances, and 

protect and restore ecologically-significant lands in 

Michigan. Consumers Energy has five years to complete 

its selected projects. 

Cuyahoga Valley National Park, NPS photo 

22 | air, land, and water 
 

• The State of Iowa; Linn County, Iowa; and the Sierra Club joined the United States as co-plaintiffs in 

United States v. Interstate Power and Light Co. (N.D. Iowa). To resolve alleged violations of the Clean 

Air Act, Interstate Power and Light, a subsidiary of Alliant Energy, agreed to install pollution control 

technology and meet stringent emission rates to reduce harmful air pollution from the company’s seven 

coal-fired power plants in Iowa. The settlement also requires Interstate Power and Light to spend a total of 

$6 million on environmental mitigation projects and pay a civil penalty of $1.1 million. 

Under the settlement, Interstate Power and Light will install and continuously operate new and existing 

pollution control technology at its two largest plants in Lansing and Ottumwa, Iowa and will retire or 

convert to cleaner-burning natural gas its remaining five plants in Burlington, Cedar Rapids, Clinton, 

Dubuque, and Marshalltown, Iowa. The new, state-of-the-art pollution controls required by the settlement 

are expected to cost approximately $620 million. EPA estimates that the settlement will reduce SO2 

emissions by 32,500 tons per year and NOx emissions by 3,800 tons per year once the settlement is fully 

implemented. 

Interstate Power and Light will also be required to spend $6 million on environmental mitigation projects. 

The company will choose from five potential projects, including solar-energy and anaerobic-digester 

installations, replacing coal-fired boilers at schools, an alternative-fuel vehicle-replacement program, and 

a residential program to change out wood-burning stoves and fireplaces. 

Defending EPA’s First-Ever Hazardous Air Pollutant Standards for Power Plants 

In April 2014, the D.C. Circuit issued a sweeping decision rejecting all challenges to EPA’s hazardous 

air pollutant standards for power plants in White Stallion Energy Center, LLC v. EPA (D.C. Cir.), 

upholding the standards in their entirety and rejecting numerous arguments advanced by power plants, 

states and environmental groups. The court endorsed EPA’s threshold finding that such regulation was 

“appropriate and necessary” to protect the public from identified health hazards, and rejected various 

additional challenges to the threshold finding, as well as a multitude of separate attacks on EPA’s decisions 

concerning standard levels and subcategories. In June 2015, the Supreme Court reversed on a narrow 

issue in a decision captioned Michigan v. EPA. The Supreme Court found only that EPA was required to 

consider costs in some fashion in making the “appropriate and necessary” finding. On remand of the case 

to the D.C. Circuit to consider the appropriate remedy, ENRD argued that the standards should stay in 

place, and should not be vacated, while EPA concluded further administrative proceedings to consider the 

single issue remanded by the Supreme Court. On December 15, 2015, the D.C. Circuit issued a favorable 

order remanding the rule to EPA while leaving the standards in effect. 

Defending EPA Stationary Source Rulemakings 

Preserving EPA’s Greenhouse Gas Permitting Authority for Stationary Sources 

In its June 2014 decision in Utility Air Regulatory Group v. EPA, the Supreme Court held that greenhouse 

gas emissions, by themselves, cannot trigger CAA stationary source permit requirements, but that EPA 

can regulate greenhouse gas emissions from sources already subject to such permit requirements due to 

their emissions of other pollutants (so-called “anyway” sources). While this was a mixed decision, the 

result gave the agency a win on the most important issues, since the overwhelming majority of greenhouse 

gas emissions come from “anyway” sources. However, on remand of the case to the D.C. Circuit, certain 

industry parties argued that EPA would need to complete additional rulemaking before even this 

requirement could continue to be implemented. ENRD opposed those arguments, and on April 10, 2015, 

the D.C. Circuit issued a favorable remedy order confirming that Prevention of Signifi cant Deterioration 

permitting for greenhouse gas emissions from “anyway” sources could continue. The D.C. Circuit denied 

air, land, and water | 23 

 

rehearing on these issues in August 2015, and the Supreme Court denied a petition for 

certiorari on January 19, 2016. 

Successfully Defending the Cross-State Air Pollution Rule 

In EME Homer City Generation v. EPA, numerous 

petitioners sought review of EPA’s Cross-State Air 

Pollution Rule under the Clean Air Act. The Supreme 

Court issued a favorable decision on two major legal 

issues in April 2014, and the case returned to the D.C. 

Circuit for resolution of the remaining issues. On July 

28, 2015, ENRD obtained a mostly-favorable decision 

from the D.C. Circuit, remanding the rule to EPA for 

further administrative proceedings consistent with 

the court’s opinion, but leaving the rule in effect in the 

interim. On the issues we lost, the court identifi ed a 

number of specific pollution “linkages” between emissions 

in upwind states and air quality in downwind states 

that the court believed presented examples of potential 

“overcontrol,” and remanded those aspects of the rule to 

EPA for further consideration. The court then rejected 

petitioners’ remaining claims, holding, for example, that 

EPA had ample authority to issue federal implementation 

plans under the circumstances, used air quality modeling 

that was reasonable even if it did not perfectly predict 

real-world results, and properly evaluated whether upwind contributions of pollutants 

“interfere with maintenance” in downwind areas. 

Addressing Air Pollution from Oil Refineries and Chemical Plants 

Improperly operated industrial flares, which are used to burn waste gases, can send 

hundreds of tons of hazardous air pollutants into the air. As a result, the Division is 

making a national effort to reduce air pollution from refinery and chemical plant flares. 

The goals of the effort are to have companies send less waste gas to flares and, when gas 

must be sent to a flare, to have the flare completely combust harmful chemicals. Flares 

and leaking equipment can emit volatile organic compounds, including benzene. Volatile 

organic compounds are a key component in the formation of smog (ground-level ozone), 

a pollutant that irritates the lungs, exacerbates diseases such as asthma, and can increase 

susceptibility to respiratory illnesses, such as pneumonia and bronchitis. Chronic exposure 

to benzene, which EPA classifies as a carcinogen, can cause numerous health impacts, 

including leukemia and adverse reproductive effects in women. While addressing flares, 

the Division is also addressing emissions of toxic air pollutants from leaks from industrial 

equipment such as valves and pumps. 

• In United States v. Flint Hills Resources Port Arthur, LLC (E.D. Tex.), Flint Hills 

Resources agreed to implement innovative technologies to control harmful air pollution 

from industrial flares and leaking equipment at the company’s chemical plant in Port 

Arthur, Texas. The company paid a $350,000 penalty for Clean Air Act violations. Once 

24 | air, land, and water 

Homer City Power Plant, Wikipedia photo 
 

fully implemented, EPA estimates that 

the settlement will reduce emissions of 

volatile organic compounds, including 

benzene and other hazardous air 

pollutants, by an estimated 1,880 tons 

per year. The settlement will reduce 

emissions of greenhouse gases by 

approximately 69,000 tons per year. 

The settlement is part of EPA’s national effort to advance environmental justice by protecting 

communities such as Port Arthur that have been disproportionately affected by pollution. The 

settlement requires Flint Hills to operate state of the art equipment to recover and recycle waste 

gases and to ensure that gases sent to flares are burned with 98 percent efficiency. At the time that 

the settlement was announced, the company had spent approximately $16 million implementing 

the required controls. When the agreement is fully implemented, the company estimates it will 

have spent an additional $28 million to reduce what are called “fugitive” pollutant emissions that 

may leak from valves, pumps, and other equipment. Under the settlement, the company must 

monitor leaks more frequently, implement more aggressive repair practices, adopt innovative new 

practices designed to prevent leaks, and replace valves with new “low emissions” valves or use 

packing material to reduce leaks. 

To further mitigate pollution impacting the community, the company will spend $2 million on 

a diesel retrofit-or-replacement project that is estimated to reduce carbon monoxide by 39 tons, 

and NOx and particulate matter by a combined 85 tons, over the next 15 years. The company will 

also spend $350,000 to purchase and install technologies to reduce energy demand in low-income 

homes. 

For the past several years, Flint Hills has operated a system to monitor the ambient levels of the 

hazardous air pollutants benzene and 1,3-butadiene at the boundaries of the facility, also known as 

the “fence line.” The company has used the information to identify and reduce potential pollutant 

sources for communities living near the facility. In this settlement, Flint Hills has agreed to make 

its fence line monitoring data available online to the public. 

The complaint, filed by the Department on behalf of EPA at the same time as the settlement, 

alleged that the company improperly operated its steam-assisted flaring devices in a way that 

emitted excess amounts of VOCs, including benzene and other hazardous air pollutants. It also 

alleged violations of EPA regulations designed to limit emissions from leaking equipment. 

Reducing Air Pollution at Other Facilities 

In United States et al v. Gateway Energy & Coke Co, LLC, et al. (S.D. Ill.), SunCoke Energy Inc. 

and two of its subsidiaries agreed to pay $1.995 million in civil penalties to resolve alleged Clean 

Air Act violations of emission limits at the Gateway Energy and Coke plant in Granite City, Illinois, 

and the Haverhill Coke plant in Franklin Furnace, Ohio. The companies will pay $1.27 million in 

penalties to the United States, $575,000 to the State of Illinois, and $150,000 to the State of Ohio. 

The two states were co-plaintiffs with the United States. 

The companies will spend approximately $100 million at the two heat-recovery coking facilities 

to install equipment known as heat-recovery steam generators to ensure that hot coking gases 

are routed to pollution control equipment and not vented directly into the atmosphere. If future 

Flint Hills Facility, Port Arthur EPA photo 

air, land, and water | 25 

 

emissions exceed a threshold at a third facility in Middletown, Ohio, then SunCoke will have to install 

an additional heat-recovery steam generator at that facility to prevent uncontrolled venting of coking 

gases. The defendants will also spend as much as $700,000 on equipment to continuously monitor 

SO2 emissions at the Gateway and Haverhill facilities. 

The companies also agreed to accept more stringent emission limits than required in their current 

permits for SO2 and particulate matter. SO2 contributes to acid rain and exacerbates respiratory 

illness, particularly in children and the elderly. Exposure to particulate pollution has been linked 

to health impacts that include decreased lung function, aggravated asthma and premature death in 

people with heart or lung disease. 

The companies will also spend $255,000 on a lead abatement project in southern Illinois to reduce 

lead hazards in owner-occupied low-income residences with priority given to families with young 

children or pregnant women. 

The primary violations alleged relate to excessive bypass venting of hot coking gases directly to the 

atmosphere, resulting in excess SO2 and particulate matter emissions from the facilities’ waste-heat 

and main stacks, in violation of applicable permit limits. Coke oven emissions are a known human 

carcinogen. Chronic (long-term) exposure in humans can result in conjunctivitis, severe dermatitis, 

and lesions of the respiratory system and digestive system. The additional equipment installed at the 

facilities will result in estimated emissions reductions of over 1,200 tons per year of SO2, over 130 tons 

per year of particulate matter, 252 tons per year of hydrochloric and sulfuric acid gases, and over 1800 

pounds per year of lead. 

Both facilities are located in areas that do not meet federal health-based standards for soot. The 

Illinois facility is located in an area that also does not meet the federal air pollution standard for lead. 

Coke is used as a carbon source and as a fuel to heat and melt iron ore at steel making facilities. 

Carbon Black Plant Investigation 

As part of its National Enforcement Initiative to control harmful emissions from large sources of 

pollution, EPA investigated all 15 of the carbon black plants in the United States, focusing on possible 

violations of the Clean Air Act’s Prevention of Significant Deterioration requirements. Carbon black 

is a fine carbonaceous powder used in tires, plastics, rubber, inkjet toner, and cosmetics. Because 

the oil used to make carbon black is high in sulfur, carbon-black production creates large amounts of 

NOx, SO2, and particulate matter. SO2 and NOx have numerous adverse effects on human health and 

are significant contributors to acid rain, smog, and haze. These pollutants are converted in the air to 

particulate matter that can cause severe respiratory and cardiovascular impacts and premature death. 

• In United States, et al. v. Continental Carbon Co. (W.D. Ok.), the United States and the States 

of Alabama and Oklahoma alleged that Houston-based Continental violated the Clean Air Act by 

modifying its facilities in a way that caused the release of excess SO2 and nitrogen oxides. To resolve 

the allegations, Continental agreed to install pollution control technology that will signifi cantly cut 

emissions of harmful air pollutants at manufacturing facilities in Alabama, Oklahoma, and Texas. 

The settlement requires Continental to pay a civil penalty of $650,000, which was shared with 

co-plaintiffs Alabama and Oklahoma. Continental must also spend $550,000 on environmental 

projects to help mitigate the harmful effects of air pollution on the environment and to benefi t local 

26 | air, land, and water
 
 

communities, including at 

least $25,000 on energy 

efficiency projects in the 

communities near each of 

the three facilities. 

EPA expects that the 

actions required by the 

settlement will reduce 

harmful emissions by 

approximately 6,278 tons 

per year of SO2 and 1,590 

tons per year of nitrogen 

oxides. Continental 

estimates that it will 

spend about $98 million 

to implement the required 

measures. The pollution 

reductions will be achieved 

through the installation, 

upgrade, and operation of state-of-the-art pollution control devices designed to reduce emissions 

and protect public health. 

Continental manufactures carbon black at facilities in Phenix City, Alabama; Ponca City, 

Oklahoma; and Sunray, Texas. This settlement supports EPA’s and the Justice Department’s 

national efforts to advance environmental justice by working to protect communities such as 

Phenix City and Ponca City, which have been disproportionately affected by pollution. With this 

settlement, six of the 15 facilities in the United States will be covered by consent decrees with EPA. 

A Systematic Approach to Emissions 

The first-of-its-kind settlement in United States and the State of Colorado v. Noble Energy, Inc. 

(D. Col.), took a basin-wide, systematic approach to address emissions from oil and gas exploration 

and production activities. The settlement resolved alleged Clean Air Act violations against 

Houston-based Noble Energy stemming from the company’s activities in the Denver-Julesburg 

Basin, north of Denver, Colorado. Specifically, the settlement resolved claims that Noble failed 

to adequately design, size, operate, and maintain vapor-control systems on certain condensate 

storage tanks, resulting in emissions of volatile organic compounds. Volatile organic compounds 

are a key component in the formation of smog or ground-level ozone, a pollutant that irritates the 

lungs, exacerbates diseases such as asthma, and can increase susceptibility to respiratory illnesses, 

such as pneumonia and bronchitis. 

As part of the settlement, Noble will spend an estimated $60 million on system upgrades, 

monitoring, and inspections to reduce emissions; $4.5 million on environmental mitigation 

projects; $4 million on supplemental environmental projects; and $4.95 million on a civil penalty. 

Co-plaintiff the State of Colorado will receive $1.475 million of the civil penalty. 

Mitigation projects include offloading condensate from storage tanks into tanker trucks in a closed 

system to prevent vapors from being emitted to the atmosphere, and retrofitting diesel engines 

John Coffee Memorial Bridge, Alabama, NPS photo 

air, land, and water | 27 

and pumps to lower emissions of nitrogen oxides and ozone precursors. One of the supplemental 

environmental projects will provide financial incentives to residents in the ozone non-attainment 

area to replace or retrofi t inefficient, higher-polluting wood-burning or coal appliances with cleaner 

burning, more efficient heating appliances and technologies. Noble will spend $2 million on additional 

State-approved supplemental environmental projects, proposed by Noble for State approval. 

The case arose from a joint investigation by EPA and Colorado that found significant volatile organic 

compound emissions coming from storage tanks, primarily due to undersized vapor-control systems. 

Noble will perform engineering evaluations and make modifications to ensure that its vapor-control 

systems are properly designed and sized to capture and control volatile organic compound emissions. 

Noble has agreed to provide its evaluations of vapor-control-system designs to the public. These 

reports will give other companies the opportunity to apply this information to emissions estimates and 

vapor-control-system designs. 

EPA estimates that modifications to the vapor-control systems will reduce volatile organic compound 

emissions by at least 2,400 tons per year and that significant additional reductions will be achieved 

with operational and maintenance improvements. The settlement covers more than 3,400 tank 

batteries. This settlement is part of EPA’s national enforcement initiative to reduce public health and 

environmental impacts from energy extraction activities. 

The National Acid Manufacturing Plant Initiative 

In United States and the Louisiana Department of Environmental Quality v. PCS Nitrogen Fertilizer, 

L.P., et al. (M.D. La.), three subsidiaries of the Potash Corporation of Saskatchewan (PCS), the 

world’s largest fertilizer 

producer, agreed to take 

steps to reduce harmful 

air emissions at eight 

U.S. production plants. 

The settlement resolves 

claims that these PCS 

subsidiaries violated the 

Clean Air Act when they 

modified facilities in 

ways that released excess 

SO2 into surrounding 

communities. 

The settlement requires 

PCS Nitrogen Fertilizer, 

AA Sulfuric Inc., and 

White Springs Agricultural Chemicals Inc. 

to install emissions 

monitors at, and to 

install, upgrade, and operate state-of-the-art pollution reduction measures at, any of eight sulfuric 

acid plants the defendants choose to continue operating: one plant in in Geismar, Louisiana; four in 

White Springs, Florida; and three in Aurora, North Carolina. Upgrading all eight plants would cost an 

estimated $50 million. The three companies also paid a $1.3 million civil penalty. 

PCS Nitric Acid Plant, Geismar, Louisiana Google Maps photo 

28 | air, land, and water
 
 

The settlement also includes a supplemental environmental project, estimated to cost between $2.5 

and $4 million, to protect the community around the PCS Nitrogen nitric acid plant in Geismar, 

Louisiana, and requires PCS Nitrogen to install and operate equipment to reduce emissions of 

nitrogen oxides and ammonia. This project is part of EPA’s commitment to advancing environmental 

justice by reducing the disproportionate environmental impacts on communities near industrial 

facilities—in this instance, by reducing fine particulates that can aggravate respiratory disease. 

SO2, the predominant pollutant emitted from sulfuric acid plants, has numerous adverse effects on 

human health and is a significant contributor to acid rain, smog and haze. SO2-along with nitrogen 

oxides—is converted in the air into particulate matter that can cause severe respiratory and cardiovascular impacts, and premature death. 

This settlement is part of EPA’s national enforcement initiative to control harmful emissions from 

large sources of pollution, which includes acid production plants, under the Clean Air Act’s Prevention 

of Significant Deterioration requirements. It is the tenth settlement reached under EPA’s National 

Acid Manufacturing Plant Initiative and the seventh settlement addressing pollution from sulfuric 

acid plants. Today’s settlement covers more sulfuric acid production capacity—roughly 24,000 tons 

per day or approximately 14 percent of total U.S. capacity—than all previous sulfuric acid settlements 

under this initiative combined. 

The settlement also resolves alleged violations based on Louisiana state law at the Geismar, Louisiana, 

facility, and the Louisiana Department of Environmental Quality will receive $350,000 of the $1.3 

million penalty. 

Landfill Air Pollutants 

Decomposing refuse in a large landfill generates hazardous air pollutants such as benzene, carbon 

tetrachloride, chloroform, ethylene dichloride, perchloroethylene, trichloroethylene, vinyl chloride, 

and vinylidene chloride. Many air pollutants identified in landfill gas are either known or suspected 

carcinogens. The federal Clean Air Act requires landfills to have a system to collect and control the 

gases. Air emissions of methane from landfills can also contribute to global methane emissions, a 

greenhouse gas with about 25 times the global warming potential of carbon dioxide. 

• In United States v. City and County of Honolulu (D. Haw.), Honolulu resolved air violations at its 

closed Kapaa Landfill in Kailua, Oahu, by agreeing to pay a civil penalty of $875,000 and build a $16.1 

million solar power system as a supplemental environmental project. The Kappa landfill fi rst received 

solid waste in 1969 and closed in May 1997. The city failed to have an operating gas collection and 

control system by a 2002 deadline. The required gas collection and control system at the landfi ll was 

not in place until April 2013. 

The supplemental environmental project involves the installation of photovoltaic arrays on more than 

250,000 square feet of buildings and open space at the city’s waste-to-energy facility in the Campbell 

Industrial Park by 2020. The new solar panels will have a capacity of 3.1 megawatts and will generate 

over five million kilowatt-hours of electricity per year, enough to power 800 Oahu households. 

air, land, and water | 29 

Enforcing EPA’s Significant New Alternatives Policy Program 

As part of the United States’ transition away from ozone-depleting substances, the EPA’s Significant 

New Alternatives Policy Program evaluates and approves substitute refrigerants so that they can 

safely and legally replace ozone-depleting substances. EPA evaluates potential substitute refrigerants according to health, safety, and environmental criteria. The Clean Air Act addresses ozone-depleting substances and establishes standards and requirements that must be met before a substitute 

for an ozone-depleting substances can be introduced into the marketplace. 

• In United States v. Enviro-Safe Refrigerants (C.D. Ill.), Enviro-Safe Refrigerants Inc. of Pekin, 

Illinois, agreed to pay a $300,000 civil penalty and cease the marketing and sale of two unapproved 

flammable refrigerants as substitutes for ozone-depleting refrigerants. According to the complaint 

filed simultaneously with the settlement, Enviro-Safe violated Clean Air Act requirements by 

marketing and selling two flammable hydrocarbon-refrigerant products, ES 22a and ES 502a, as 

substitutes for ozone-depleting substances without providing the requisite information to EPA 

for review and approval. EPA has not approved any flammable hydrocarbon as a replacement for 

ozone-depleting substances in systems not specifically designed for flammable refrigerants and has 

warned that use of flammable refrigerants in those systems presents a risk of fire or explosion. 

Ensuring the Integrity of Municipal Wastewater Treatment Systems 

Through enforcement of the CWA, the Division addresses one of the most pressing infrastructure 

issues in the nation’s cities—discharges of untreated sewage from aging collection systems. Raw 

sewage contains organic matter, toxics, metals, and pathogens that threaten public health, deter 

recreational use of beaches and waterways, and contaminate fish in downstream water bodies. 

Untreated or poorly treated sewage can also contain total suspended solids, biologically degradable 

material that consumes oxygen (“biological oxygen demand”), nitrogen, and phosphorus. High 

levels of these pollutants can reduce oxygen levels in water bodies, threatening the health of aquatic 

plants and animals. Too much nitrogen and phosphorus in the water cause algae to grow faster than 

ecosystems can handle. Large growths of algae, known as algal blooms, contribute to the creation of 

hypoxia or “dead zones” in water bodies where oxygen levels are so low that most aquatic life cannot 

survive. 

Our work helps to protect some of our most vulnerable communities, including low-income and 

minority communities who often live in older urban areas with the worst infrastructure problems. 

We also preserve national treasures like the Chesapeake Bay and the Great Lakes. 

The Division has made it a priority to bring cases nationwide to improve municipal wastewater and 

stormwater treatment and collection. From January 2009 through September 2014, courts entered 

81 such settlements, requiring, in total, an estimated $28.7 billion in long-term control measures 

and other relief to bring municipalities into compliance with the CWA. 

In fiscal year 2015, courts approved five settlements or partial settlements negotiated by the 

Division. Collectively, the settlements required more than an estimated $1.0 billion in improvements, $410,000 in civil penalties, and $618,000 in supplemental environmental projects. 

• The most important case was United States and the State of Arkansas v. City of Fort Smith, 

Arkansas (W.D. Ark.). To reduce discharges of raw sewage and other pollutants into local 

waterways, the city of Fort Smith agreed to spend what it estimates will be more than $480 million 

over 12 years on upgrades to its sewer collection and treatment system. 

30 | air, land, and water
 
 Fort Smith Wastewater Treatment Facility Google Maps photo 

Fort Smith will also 

pay a $300,000 civil 

penalty and spend 

$400,000 on a program 

to help qualified 

low-income residential 

property owners to 

repair or replace 

defective private sewer 

lines that connect to the 

city collection system. 

The settlement 

agreement resolves 

alleged CWA violations 

related to Fort Smith’s 

failure to properly 

operate and maintain 

its sewer collection 

and treatment system. 

Since 2004, Fort Smith had reported more than 2,000 releases of untreated sewage, resulting in 

more than 119 million gallons of raw sewage flowing into local waterways, including the Arkansas 

River. These types of releases, known as sanitary sewer overflows, cause serious water quality 

and public health problems. Fort Smith also violated limits on the discharge of various pollutants 

from its Massard and P Street wastewater treatment plants numerous times over the last decade. 

Many of the manholes and pump stations from which Fort Smith’s sanitary sewer overfl ows occur 

are located in low-income and minority communities. 

To reduce sanitary sewer overflows, Fort Smith will conduct a comprehensive assessment of its 

sewer system to identify defects and places where stormwater may be entering the system. The 

city will repair all sewer pipe segments and manholes that are likely to fail within the next 10 

years. It will also implement a program to reduce the introduction of fats, oil, and grease into 

its system; reduce root intrusion; and clean the system of debris that can cause sanitary sewer 

overflows. Fort Smith will also implement a program to determine whether human waste is 

entering into and being released from the city’s stormwater system. 

The implementation of the consent decree will reduce releases of approximately 3,492 pounds of 

total suspended solids, 3,343 pounds of biological oxygen demand, 543 pounds of nitrogen, and 

78 pounds of phosphorus from the Fort Smith sewage system each year. 

• The Metropolitan Water Reclamation District of Greater Chicago (“District”) is the water 

service provider for the City of Chicago and 125 suburban communities located within Cook 

County, Illinois. On July 9, 2015, in United States v. Metro. Water Reclamation Dist. of Greater 

Chicago (7th Cir.), the Seventh Circuit upheld a consent decree entered into by the District to 

resolve claims asserted by the United States and the State of Illinois that it was not addressing 

long-standing discharges from its combined sewer overflow outfalls that were violating the CWA. 

Environmental groups had intervened as plaintiffs and objected to the decree, maintaining 

that it did not require the District to do enough, fast enough. The district court disagreed and 

entered the decree. The district court also concluded that the environmental intervenors could 

not continue to prosecute their own CWA claims against the District regarding the same matters 

air, land, and water | 31 

Pollution along the Coast; Chicago, IL USGS photo 

addressed by the 

decree entered into by 

the United States and 

Illinois. The Seventh 

Circuit affirmed. 

The court concluded 

that although the 

intervenors could 

appeal from the entry 

of the consent decree, 

the CWA citizen-suit 

provision did not 

allow them to continue 

with their separate 

claims once the United 

States resolved its 

case. On the merits, 

the panel rejected the 

environmental groups’ 

arguments that the 

decree was unreasonable. The panel found that it was reasonable to give the District a chance to see if 

its remedial scheme would work, in contrast to imposing the vastly more expensive alternative being 

proposed by the intervenors. 

Otherwise Protecting the Nation’s Water and Wetlands 

The Division also obtained notable results enforcing and defending other CWA 

programs that protect the nation’s navigable waters and wetlands. 

Addressing Stormwater-Related Pollution 

Stormwater often carries pollution and sediment from construction sites into local waterways 

damaging water quality. Under the federal CWA, developers and contractors responsible for 

operations at construction sites one acre or larger are required to implement stormwater pollution 

prevention plans to keep soil and contaminants from running into nearby waterways. These plans can 

include measures such as sediment barriers and means of reducing the flow of stormwater onto the 

construction site. Stormwater typically carries soil and contaminants off of construction sites at a rate 

10 to 20 times greater than the rate at which they are carried off of agricultural lands, and 1,000 to 

2,000 times greater than the rate from forested lands. 

• In United States v. Garden Homes, Inc. (D.N.J.), the United States reached an agreement with 

residential-builder Garden Homes and its affiliated companies to settle alleged failures to control 

stormwater discharges. These failures potentially resulted in pollutant discharges to the Passaic, 

Hackensack, Rahway, Raritan, Saddle, and Delaware River watersheds. The agreement requires 

Garden Homes to pay a $225,000 penalty and implement measures to improve the company’s 

stormwater practices. In addition, the company agreed to provide 108 acres of land for preservation 

within the Highlands Preservation Area in Morris County, New Jersey, including approximately 23 

acres of wetlands adjacent to the Berkshire Valley Wildlife Management Area—a critical drinking-water-protection area for the State of New Jersey. 

32 | air, land, and water 
 

Under the settlement, Garden Homes will 

undertake a corporate-wide evaluation 

of its existing stormwater practices and 

develop a corporate-wide stormwater 

management program. In addition, 

Garden Homes will designate one of its 

employees as its company stormwater 

manager, who will be responsible for 

preparing all stormwater pollution 

prevention plans, developing and 

overseeing stormwater-compliance 

training and conducting unannounced 

site inspections, among other responsibilities. The company will also designate 

individual site stormwater managers. EPA 

estimates the value of these measures to 

be $539,000 for the first year and approximately $380,057 annually thereafter. 

The complaint alleged that Garden Homes 

violated numerous stormwater requirements at ten of the company’s sites in New 

Jersey by failing to conduct and document 

weekly inspections; failing to install 

perimeter silt fencing along the perimeter 

of construction sites; failing to maintain 

a spill kit on-site; and allowing fuel to spill 

on the ground uphill from an unprotected catch basin, among other allegations. The violations 

at issue in this case were found at multiple construction sites owned and/or operated by Garden 

Homes through their affiliates. These repetitive violations continued to persist despite two administrative penalty actions taken by EPA Region 2 against affiliates of Garden Homes. 

Under the terms of the settlement, Garden Homes will donate land within the Highlands Preservation Area as a supplemental environmental project. This donation of land will further aid in the 

recovery of threatened and endangered species, particularly the Indiana Bat and bog turtle, which 

have a known presence in the vicinity. 

Maintaining Effluent Standards for the Chesapeake Bay 

On July 6, 2015, in American Farm Bureau Federation v. EPA (3d Cir.), the Third Circuit rejected 

the American Farm Bureau’s challenges to EPA’s development of effluent standards for protection 

of the Chesapeake Bay and its tributaries. EPA’s development of total maximum daily loads 

(“TMDL”) for nitrogen, phosphorus, and sediment was the product of years of multi-jurisdictional 

coordination between six states and the District of Columbia. Plaintiffs challenged three aspects 

of the TMDL: (1) allocation of pollution loads to sources and sectors within states; (2) EPA’s 

requirement that states provide “reasonable assurances” that their pollution controls will achieve 

Bay water quality standards; and (3) interim and final deadlines for implementation of the TMDL. 

The appellate court rejected these claims, holding that the CWA authorizes EPA to promulgate a 

TMDL that contains each of the challenged features. 

Highlands Preservation Area NJDEP photo 

air, land, and water | 33 

REDUCING AUTOMOBILE AIR 

POLLUTION 

The Clean Air Act requires automakers to certif

the amount of greenhouse gases their cars 

will emit. In addition, automakers earn greenhouse-gas emissions credits for building vehicle

with lower emissions than required by law. 

These credits can be used to offset emissions 

from less fuel efficient vehicle models or be 

sold or traded to other automakers for the same

purpose. 

In United States and California Air Resources 

Board v. Hyundai Motor Co., et al. (D.D.C.) 

the complaint filed jointly by the United States 

and the California Air Resources Board alleged 

that the car companies sold close to 1.2 million 

cars and SUVs from model years 2012 and 

2013 that will emit approximately 4.75 million 

metric tons of greenhouse gases in excess of 

what the automakers certified to EPA. This case

involves five related entities: Hyundai Motor 

Company, Hyundai Motor America, Kia Motors

Corporation, Kia Motors America, and Hyundai

America Technical Center Inc. The allegations 

concerned the Hyundai Accent, Elantra, 

Veloster, and Santa Fe models and the Kia Rio 

and Soul models. 

Additionally, Hyundai and Kia allegedly gave 

consumers inaccurate information about the 

real-world fuel economy of many of these 

vehicles. Hyundai and Kia overstated the 

fuel economy by one to six miles per gallon 

depending on the vehicle. 

Under a historic settlement, the automakers 

paid a $100 million civil penalty, the largest 

under the Clean Air Act, to resolve the alleged 

violations and will spend approximately

$50 million on measures to prevent future 

violations. Hyundai and Kia will also forfeit

4.75 million greenhouse-gas emission credits

that the companies previously claimed, which

are estimated to be worth over $200 million.

The greenhouse-gas emissions that the forfeited

credits would have allowed are equal to the

emissions from powering more than 433,000

homes for a year. The California Air Resources

Board joined the United States as a co-plaintiff

in the settlement, and received $6,343,400 of 

the $100 million civil penalty.

In order to reduce the likelihood of future

vehicle greenhouse-gas-emission miscalculations, Hyundai and Kia have agreed to

reorganize their emissions certifi cation group, 

revise test protocols, improve management of

test data, and enhance employee training before

they conduct emissions testing to certify their

model year 2017 vehicles. Hyundai and Kia

also had to audit their fleets for model years

2015 and 2016 to ensure that vehicles sold to

the public conform to the description and data

provided to EPA.

EPA discovered these violations in 2012 during

audit testing. Subsequent investigation revealed 

that Hyundai’s and Kia’s testing protocol

included numerous elements that led to inaccurately high fuel economy ratings. In November

2012, Hyundai and Kia responded to the EPA’s

findings by lowering the fuel economy ratings

for many of their 2011, 2012, and 2013 model

year vehicles and establishing a reimbursement 

program to compensate owners for increased

fuel costs due to the overstated fuel economy

ratings. 

y 

s 

34 | air, land, and water
 
oil & superfund waste | 35 

ENSURING CLEANUP OF OIL AND 


HAZARDOUS WASTE
 

Recovering Penalties and Damages from Oil Spills 

The CWA makes it unlawful to discharge oil or hazardous substances into or upon the navigable 

waters of the United States or adjoining shorelines in quantities that may be harmful to the 

environment or public health. Penalties paid for oil spills under Section 311 of the CWA are 

deposited in the federal Oil Spill 

Liability Trust Fund, which is used 

to pay for federal response activities 

and to compensate for damages when 

there is a discharge or substantial 

threat of discharge of oil or hazardous 

substances to waters of the United 

States or adjoining shorelines. 

• On March 29, 2013, ExxonMobil’s 

Pegasus Pipeline, carrying Canadian 

heavy crude oil from Illinois to Texas, 

ruptured in the Northwoods neighborhood of Mayflower, Arkansas. Oil 

flowed through the neighborhood, 

contaminating homes and yards, and 

entered a nearby creek, wetlands, 

and a cove of Lake Conway. Some 

residents were ordered to evacuate 

their homes after the spill and remained displaced for an extended period of time. The spill 

volume was estimated at approximately 3,190 barrels (134,000 gallons). 

The United States and the State of Arkansas filed their joint complaint in 2013 in United States 

and State of Arkansas v. ExxonMobil Pipeline Co. and Mobil Pipe Line Co. (E.D. Ark.). To 

settle the alleged violations of the CWA and state environmental laws, ExxonMobil agreed to 

pay approximately $5 million and take steps to address pipeline safety and oil-spill-response 

capability. Specifically, ExxonMobil Pipeline Company and Mobil Pipe Line Company agreed to 

Deepwater Horizon offshore drilling unit on fire, Wikimedia Photo 
Louisiana Wetlands area USGS photo 

Coast Guard Cutter Decisive, Department of Ecology, WA photo 

36 | oil & superfund waste
 
 

oil & superfund waste | 37 

pay $3.19 million in federal civil penalties, $1 million in state civil penalties, $600,000 for a project to 

improve water quality at Lake Conway, and $280,000 for the state’s litigation costs. 

The penalties imposed under the consent decree are in addition to the money that the company had 

already paid to reimburse federal and state response efforts and comply with orders and directives 

issued by the United States Department of Transportation, Pipeline and Hazardous Materials Safety 

Administration (PHMSA). The segment of the Pegasus Pipeline that includes the rupture site has not 

been used since the March 2013 spill, and under the terms of the settlement agreement, ExxonMobil 

must comply with all PHMSA corrective action requirements before returning the pipeline to operation. 

The consent decree also requires ExxonMobil to provide additional training to its oil spill first 

responders and to establish caches of spill response equipment and supplies at three sites along the 

pipeline, including one location near Mayfl ower, Arkansas. 

• On April 28, 2012, ExxonMobil’s “North Line” pipeline ruptured near Torbert, Louisiana, about 20 

miles west of Baton Rouge, and crude oil spilled into the surrounding area and flowed into an unnamed 

tributary connected to Bayou Cholpe. The United States’ complaint in United States v. ExxonMobil 

Pipeline Co. (M.D. La.), alleged that ExxonMobil discharged at least 2,800 barrels (117,000 gallons) 

of crude oil in violation of Section 311 of the CWA. To settle the action, ExxonMobil agreed to pay a 

$1,437,120 civil penalty. Outside of the district court matter, ExxonMobil received an administrative 

clean-up order from the Louisiana Department of Environmental Quality and a corrective action order 

from the PHMSA. 

• In United States v. Superior Crude Gathering, Inc. (S.D. Tex.), Superior Crude agreed to pay a $1.61 

million civil penalty for alleged violations of the CWA stemming from a 2010 crude oil spill from two 

tanks at Superior’s oil storage facility in Ingleside, Texas. The United States’ complaint alleged that 

Superior discharged at least 2,200 barrels (92,400 gallons) of crude oil in violation of Section 311 of the 

CWA. The complaint also included related violations of the CWA’s spill prevention, control, and countermeasure regulations and spill response plan regulations. Superior ceased operations at the facility, which 

is located within the former Falcon Refinery. 

Conserving the Superfund by Compelling Parties to Clean Up Hazardous Waste and 

Recovering Superfund Monies 

The Division brings actions under CERCLA to require responsible parties to clean up hazardous waste 

and to recover the costs of cleanups conducted by EPA. In fiscal year 2015, ENRD concluded a number 

of settlements requiring responsible parties to reimburse the United States for EPA’s clean-up costs, to 

undertake the clean-up work 

themselves, or both. 

In United States v. Pechiney 

Plastic Packaging, Inc. 

(D.N.J.) (and the related 

case, United States v. 

Bristol-Myers Squibb 

Company, et al.), the United 

States reached a settlement 

with fi ve companies— 

Pechiney Plastic Packaging 

Inc., Albéa Americas Inc., 

Bristol-Myers Squibb 

Company, Citigroup Inc., 

and Rexam Beverage Can 

Company—regarding the Exxon Mobil Pipeline Cleanup, Mayflower, AR Arkansas AG photo 
cleanup of the Pohatcong Valley Groundwater Contamination Superfund Site in Warren County, New 

Jersey. The Pohatcong site is contaminated with trichloroethylene (TCE) and perchloroethylene (PCE). 

RESTORING THE GULF: Affirmative 

Litigation Responding to the Deepwater 

Horizon Explosion and Oil Spill in the Gulf 

of Mexico 

After five years of fast-paced litigation, including a 

three-phase trial of the United States’ civil penalty 

claim, and intense work on the claim for natural 

resource damages, the Division led many interested 

federal agencies and the five Gulf States in negotiating 

a settlement that resolves the governments’ civil claims 

against BP arising from the April 20, 2010, blowout of 

the Macondo well and the massive oil spill in the Gulf 

of Mexico. 

BP will pay the U.S. and the States more than $20 

billion—almost $15 billion of which will be paid under a 

federal consent decree to which the five Gulf States are 

parties. Under the consent decree, BP will pay a civil 

penalty of $5.5 billion, $8.1 billion in natural resource 

damages, $600 million in further reimbursement of 

clean-up costs and some royalty payments, and up to 

another $700 million that will be used for adaptive 

management of natural resources and to address any 

later-discovered natural resource conditions that were 

unknown at the time of the agreement. 

In addition to the federal consent decree, the five 

Gulf States also settled their own economic-damages 

claims against BP (including those asserted by local 

governments within those States) for an additional $6 

billion. 

The United States received numerous comments on 

both the proposed federal consent decree and the 

1,700-page draft damage assessment and restoration

plan published by the Deepwater Horizon Trustees

Council, a council comprised of representatives of 

the five Gulf States and four federal agencies. The

plan includes a comprehensive assessment of natural

resource injuries resulting from the oil spill and a

detailed framework for how the trustees will use the

natural resource damage recoveries from BP to restore

the Gulf environment.

Penalties recovered in connection with the litigation

will be distributed under the framework established

in the Resources and Ecosystems Sustainability, 

Tourist Opportunities, and Revived Economies of the

Gulf Coast States Act of 2012 (RESTORE Act). The

RESTORE Act will direct about eighty percent of civil

penalties to environmental and economic projects that

will benefit the Gulf of Mexico region in the fi ve Gulf 

States.

Previously, BP entered into a plea agreement with

the Department that resolved certain criminal claims

against the company for this same disaster. Under that

agreement, BP is liable for fines and other sums in

excess of $4 billion. 

Under the settlement, Pechiney will have primary responsibility for cleaning up contaminated soil and 

groundwater at the site, connecting some residents to public water, and operating systems to capture 

vapors that are entering into a manufacturing facility. As a precaution, Pechiney is continuing to monitor 

for vapor intrusion into homes at the site. Pechiney will perform current and future cleanup work 

estimated to cost $62.5 million and will pay EPA’s future oversight costs. In addition, EPA will receive 

approximately $29.5 million for certain past costs. 

As part of the settlement, Pechiney will pay a civil penalty of approximately $282,000 to resolve 

allegations that Pechiney violated a previous EPA order by failing to make satisfactory progress on a 

portion of the cleanup at the site. Pechiney will also restore and preserve approximately 60 acres of land, 

valued at $1.1 million, in Warren County, through a supplemental environmental project. The land will 

be converted to native grassland and will become part of the Morris Canal Greenway. 

EPA added the Pohatcong site to the Superfund list in 1989 because of elevated levels of volatile organic 

contaminants, including TCE and PCE, in the groundwater. These contaminants were detected in public 

38 | oil & superfund waste
 
oil & superfund waste | 39 

supply wells, which are now treated to meet drinking water standards before the water is distributed. The 

site includes a contaminated groundwater plume that is approximately 10 miles long and approximately 

1.5 miles wide, encompassing nearly 9,800 acres. 

The Superfund program operates on the principle that polluters should pay for the cleanups, rather than 

passing the costs on to taxpayers. EPA searches for parties legally responsible for the contamination at 

sites, and it seeks to hold those parties accountable for the costs of investigations and cleanups. Under 

this settlement, the parties responsible for the site are paying for or performing the cleanup work. 

Securing Natural Resource Damages 

In addition to authorizing lawsuits to compel cleanup and recoup cleanup costs, CERCLA allows separate 

claims for money damages when natural resources have been injured by releases of hazardous substances. 

These actions can only be brought by the United States, states, and Native American Tribes, because 

claims for natural resource damages (NRD) seek compensation for public losses due to natural resource 

injuries. To ensure that the public benefits from any compensation that the government obtains, CERCLA 

specifies that litigation or settlement recoveries on NRD claims must be used to restore, replace, or 

acquire the equivalent of the resources that were injured by the hazardous substances. 

In 2015, the Division’s lawyers took a leading role in resolving NRD claims for the Lower Fox River and 

Green Bay Superfund Site through a set of settlements that brought the total value of the NRD recoveries 

to $105 million. 

The Lower Fox River and the bay of Green Bay in northeastern Wisconsin have been contaminated with 

chemicals—known as polychlorinated biphenyls (PCBs)—that were released to the river in the production 

and recycling of a particular 

type of “carbonless” copy 

paper from the 1950s 

until the 1970s. PCBs 

break down very slowly 

in the environment, and 

have accumulated in the 

sediments of the Fox River 

and Green Bay as well as in 

the tissue of fish, fish-eating 

birds, and other waterfowl in 

the area. As a result, public 

health agencies have issued 

formal advisories recommending severe limitations 

on the consumption of fish 

and waterfowl taken from 

the Fox River and Green 

Bay. 

In 2010, the United States 

and the State of Wisconsin 

filed suit against 14 parties that caused the PCB contamination at the Fox River Site, seeking cleanup 

actions, cleanup-cost reimbursement, and NRD in United States and the State of Wisconsin v. NCR 

Corporation, et al. (E.D. Wisc.). Under court orders obtained in that litigation, the defendants are now 

funding and performing a large-scale dredging effort to remove PCB contaminated sediments from the 

river. That will continue through at least 2017. Even after the dredging work is finished, it will take years 

Lower Fox River and Green Bay Superfund Site, EPA photo 
for the PCB levels in fish and waterfowl to subside, and the public will continue to suffer lost fishing 

and hunting opportunities. The governments’ NRD claim in the lawsuit sought appropriate compensation for those public losses. 

Three settlements providing nearly $46 million for NRD were finalized and approved by the U.S. 

District Court for the Eastern District of Wisconsin in 2015. That recovery added to $59 million in 

earlier settlement recoveries, bringing the total recovery on the NRD claim to $105 million. The 

PCB contamination has harmed natural resources managed by United States government, the 

State of Wisconsin, the Oneida Tribe of Indians of Wisconsin, and the Menominee Indian Tribe 

of Wisconsin, so all of the settlements were jointly approved by the United States, the state, and 

the two tribes. Like the prior NRD recoveries for the Fox River Site, the $46 million collected in 

2015 will be used to fund natural resource restoration projects selected by the Fox River/Green 

Bay Natural Resource Trustee Council, which includes representatives from FWS, the Wisconsin 

Department of Natural Resources, the Oneida Tribe, and the Menominee Tribe. The Trustee 

Council’s restoration efforts to date have focused on wetland and stream restoration, wildlife habitat 

protection and acquisition, and fishery enhancement projects in the Fox River-Green Bay watershed. 

Enforcing Clean-up Obligations in Bankruptcy Cases 

The Division takes actions in bankruptcy cases to protect environmental obligations owed to the 

United States when a responsible party goes into bankruptcy. During fiscal year 2015, the Division 

obtained three agreements in bankruptcy proceedings under which debtors or parties in interest in 

bankruptcy cases were obligated to pay over $4.5 billion. In addition, debtors paid over $9.9 million 

during fiscal year 2015 under bankruptcy agreements concluded by the Division in prior fi scal years. 

Altogether, debtors or parties in interest in bankruptcy cases reimbursed the Superfund for over 

$2.0 billion, were obligated to pay over $2.4 billion to clean up hazardous waste sites, and paid more 

than $83 million in natural resource damages. 

In fiscal year 2015, the historic settlement with Anadarko Petroleum Corp. and Kerr McGee went 

into effect, allowing funds to be disbursed for cleanups across the country. The settlement resolved 

fraudulent conveyance claims brought by the United States and the Anadarko Litigation Trust 

against Anadarko Petroleum Corporation and its affiliates in the bankruptcy of Tronox Inc. and its 

subsidiaries. Pursuant to the settlement agreement, on January 23, 2015, the defendants paid $5.15 

billion, plus interest, to the Anadarko Litigation Trust. The Trust paid more than $4.4 billion to 

the United States, state governments, the Navajo nation, and four environmental response trusts 

created in the bankruptcy to fund environmental cleanups and pay environmental claims. 

As noted by the U.S. District Court Judge who approved the settlement in November, 2014, this 

case arose from a “series of transactions by the Kerr-McGee Corp. that resulted in the spin-off 

of Tronox, which Kerr-McGee left saddled with the massive environmental and tort liabilities it 

had accumulated over the course of decades of operating in the chemical, mining, and oil and gas 

industries, but without sufficient assets with which to address these liabilities.” For this reason, as 

the district court explained, both the United States and the Tronox estate, now represented by the 

trust, brought fraudulent conveyance claims against the defendants. 

The United States announced this settlement on April 3, 2014, and on Nov. 10, 2014, the district 

court approved the settlement as “fair and reasonable.” The settlement agreement went into effect 

on Jan. 21, 2015. 

40 | oil & superfund waste
 
Protecting the Public Fisc from Excessive or Unwarranted Claims for Reimbursement of Cleanup Costs 

• In 2015, ENRD finally received a favorable judgment in TDY Holdings v. United States (S.D. 

Cal.), following a 12-day bench trial in 2012 on a suit under CERCLA to recover from the United 

States for response costs incurred to remediate contamination at a former aircraft and aircraft 

parts manufacturing facility. On July 29, 2015, the district court issued a detailed decision that 

allocated 100 percent of the response costs to the plaintiff. The court concluded: “[A]lthough the 

Government was the past owner of [some of] the facilities at the site, it was not the responsible 

party for the introduction of the contaminants of concern into the Site’s soil, sediment and water 

that necessitated the remediation efforts. Considering the totality of the circumstances, the court 

allocates 100% of the past and future response costs for the remediation of chromium, chlorinated 

solvents and PCBs at the Site to TDY.” 

• ENRD won a favorable ruling on summary judgment in Chevron Mining Inc. v. United States 

(D.N.M.), a CERCLA suit regarding cleanup costs at the Questa Mine Superfund Site in New 

Mexico. Plaintiff and its predecessors conducted mining and disposed of the associated waste at 

the Site for most of the last century, using land held by plaintiff via unpatented mining claims. 

Faced with cleanup costs ranging from approximately $600 to $900 million, the plaintiff alleged 

that the United States was liable under CERCLA as both an owner of the site and a party who 

arranged for disposal of hazardous substances there. On September 30, 2015, the district court 

entered summary judgment for the United States. The court concluded that the United States’ 

retention of “bare legal title” in lands subject to an unpatented mining claim does not render the 

United States an owner for purposes of CERCLA. As to plaintiff’s “arranger” claim, the court found 

that plaintiff had failed to establish that the United States took intentional steps to arrange for 

disposal of a hazardous waste. The court therefore found that the United States was entitled to 

judgment as a matter of law, and entered a fi nal judgment finding the United States not liable. 

• Emhart Industries, Inc. v. Air Force (D.R.I.), involves responsibility for the cleanup of a former 

chemical manufacturing and drum recycling facility in North Providence, Rhode Island, which is 

now the location of residential housing. After years of litigation between the former operators of 

the site, EPA brought claims to compel the performance of cleanup actions at the site. In turn, 

the private companies that contributed to the 

contamination countersued against the United 

States, arguing that the United States military 

disposed of Agent Orange and other tactical 

herbicides (and other hazardous substances) at 

the site, and therefore the Army and Air Force 

bore responsibility for the cleanup costs at the 

site. After months of intensive discovery, case 

development, and trial preparation, the case 

proceeded to a bench trial in May and June 

of 2015. The trial addressed Emhart’s liability 

on EPA’s affirmative enforcement claim, as 

well as the company’s defenses to liability, 

including arguments regarding divisibility 

of the harm, and arguments blaming the Air 

Force and the Navy for contamination at the 

site. On September 17, 2015, the court issued 

favorable findings of fact and conclusions of 

law. The court held that Emhart Industries and 

its successor Black & Decker are jointly and severally liable for the United States’ response costs 

Emhart Industries, Inc. v. Air Force, USAF logo 

oil & superfund waste | 41 

incurred in connection with the site. The court also held that Emhart/Black & Decker failed to show 

that the harm at the site is reasonably capable of apportionment. Finally, the court held that Emhart/ 

Black & Decker failed to carry their burden of proving that the Department of Defense disposed of any 

hazardous substances at the site, much less tactical herbicides. 

The Division settles claims under CERCLA seeking to impose liability for cleanup on federal agencies 

where a fair apportionment of costs can be reached. In fiscal year 2015, these included several multimillion-dollar settlements: 

• On December 11, 2014, the court approved a settlement agreement as a good faith settlement in City 

of San Diego v. U.S. Navy (S.D. Cal.), concerning the remediation of contaminated shipyard sediment 

in San Diego Bay. Under the settlement agreement the United States, on behalf of the Navy, agreed 

to accept a 28% share of costs in the “North Yard” at the site and a 33% share of costs in the “South 

Yard.” Specifically, the United States agreed to pay a total settlement amount of $21,189,454.33 for its 

fair share of the remedial costs. 

• In In re Former Explo Systems, Inc. site at Camp Minden, Louisiana, the Louisiana Military 

Department (“LMD”) asserted potential contribution claims against the United States under CERCLA, 

relating to the removal of M6 propellant and clean burning igniter powder at the former Explo 

Systems, Inc. site at Camp Minden, Louisiana. In October 2014, ENRD completed negotiation of an 

Administrative Settlement Agreement and Order on Consent, under which the United States agreed 

to make an initial payment of $19,312,648.13 and then periodic payments totaling 100% of future 

response costs that LMD incurs to complete the removal action. In exchange, LMD will pay for the 

oversight costs of the EPA. 

• The court entered a consent decree on October 24, 2014 in Minerals Technologies Inc. v. United 

States (D. Conn.). Minerals Technologies had asserted claims under CERCLA against the General 

Services Administration (GSA) and Department of Energy regarding response actions in connection 

with PCB and mercury contamination at the Canaan Site located in Canaan, Connecticut. ENRD 

negotiated a consent decree under which the United States will pay $2,300,000 to resolve the 

company’s claims against the federal agencies for past response costs. 

• The court approved a consent decree on November 21, 2014, in State of Maryland v. United States 

(In re Kurt Iron & Metals Site) (D. Md.). The consent decree resolves claims against the United States 

under CERCLA for response costs incurred by the Maryland Port Administration at the former Kurt 

Iron & Metals site in Baltimore, Maryland. Under the consent decree, the United States will pay the 

Maryland Port Administration $6.5 million. 

• In City of New Brighton v. United States (D. Minn.), the City of New Brighton, Minnesota, brought 

a motion to enforce a 1988 settlement agreement under CERCLA, under which the Army was funding 

the operation of a treatment facility addressing groundwater allegedly contaminated by releases of 

hazardous substances at the Twin Cities Army Ammunition Plant in Ramsey County, Minnesota. 

To resolve that motion, the parties negotiated a supplemental settlement agreement, under which 

the United States will pay the City of New Brighton $59,400,000 to resolve the City’s claim for the 

advance payment of water treatment costs. The supplemental settlement agreement was approved by 

the court on January 30, 2015. 

42 | oil & superfund waste
 
PARTNERING WITH STATES	 

During 2015, ENRD partnered with many states to 

enforce our nation’s pollution laws and prosecute 

traffickers in protected wildlife and illegally 

harvested timber, as well as to defend challenges to 

critical infrastructure projects. 

For example, 14 states received a combined total 

of nearly $8.4 million in civil penalties from joint 

environmental enforcement cases with the federal 

government. In addition, many of the communities 

surrounding the facilities responsible for violations 

will benefit from environmental mitigation or 

supplemental environmental projects funded by 

the defendants. In 2015, such projects directed $1 

million to the State of New York in a joint case. And 

joint enforcement of claims for natural resources 

damages resulted in an overall recovery to states of 

over $45 million. ENRD also partnered with federal 

agencies and the five Gulf States in negotiations 

that resulted in the recent agreements with BP 

concerning the Deepwater Horizon disaster. Those 

two agreements provide more than $20 billion in 

payments to the federal government and states, with 

as much as $6 billion of those funds going directly 

to the states or their local governments. 

The cases described represent but a few examples 

of cooperative federalism in environmental 

enforcement, which is a top priority for ENRD. 

ENRD’s Assistant Attorney General also named 

a senior ENRD lawyer as his Counselor for State 

and Local Matters, a position designed to facilitate 

joint efforts by the division and its environmental 

partners in state and local governments. The 

partnerships we have forged with state and local 

governments in a variety of contexts are critical 

to achieving ENRD’s mission on behalf of the 

American people. 

Specifically, we partnered with the State of Colorado 

to address Clean Air Act violations by Noble Energy 

Inc. at its natural gas production operation in the 

Denver-Julesburg Basin north of Denver, an area 

that fails to attain the National Ambient Air Quality 

Standards for ground level ozone. At issue were 

emissions of vapors from hydrocarbon liquids, 

which contain volatile organic compounds, methane 

and hazardous air pollutants such as benzene. 

EPA and Colorado inspectors observed emissions 

from storage tanks using state-of-the-art optical 

imaging and thermal infrared cameras. Under the 

terms of the agreement, Noble will pay penalties, 

conduct an engineering evaluation of vapor systems, 

undertake corrective actions as needed and verify 

the adequacy of the actions at over 3,400 tank 

batteries. Noble also will retain a third party to audit

the performance of this work and install next-generation pressure monitoring on tank batteries. 

The total value of the civil penalty split between 

the United States and the State of Colorado, plus 

mitigation and Supplemental Environmental 

Projects, was nearly $9 million. 

On the defensive side, the division worked closely 

with state partners in defending numerous 

important infrastructure projects. Those efforts 

were successful in facilitating the replacement of 

the aging Bonner Bridge on the North Carolina 

coast, the upgrading and maintenance of the 

Virginia Avenue Tunnel for rail transportation in 

Washington, D.C., the expansion of U.S. Route 431 

in Eufala, Alabama, and the Monroe Bypass near 

Charlotte, North Carolina. 

The past year also marked continuing cooperation 

with states in the division’s criminal prosecutions. This ranged from providing training to state 

partners to close coordination in wildlife and 

pollution investigations. Prosecutors from ENRD’s 

Environmental Crimes Section (ECS) presented at 

several events where state investigators learned of 

opportunities and methods for developing wildlife 

and environmental crimes cases, either in concert 

with federal counterparts or independently. 

Our state connections also were vital to achieving 

successful outcomes in several criminal prosecutions. For example, United States v. Baravik (W.D. 

Mo.), involved illegal trafficking in paddlefi sh eggs, 

a highly valuable caviar substitute poached on a 

large scale from Missouri waterways. Baravik was 

convicted at trial for his role in the illegal trade of 

$30,000-$50,000 worth of paddlefish eggs. His 

case was a joint effort of FWS and conservation 

officers from both the Missouri Department of 

Conservation and the Oklahoma Department of 

Conservation. 

In addition to working directly with our state 

partners, the criminal penalties sought by ENRD 

prosecutors can directly mitigate damage when 

pollution or wildlife crimes lead to harm to state 

lands, resources or waterways. As in the civil 

context, such cases may include restitution or 

mitigation to states, in addition to other penalties. 

oil & superfund waste | 43 

 

For instance, the outcome of United States v. Harbor House Seafood (D.N.J.), a case involving the illegal 

harvest of oysters from the Delaware Bay, led to $140,000 in restitution to the State of New Jersey for loss 

of that state’s seafood resources. Likewise, in United States v. Michael Hayden (D. Md.), the court ordered 

a trafficker in illegally harvested striped bass to pay nearly $500,000 in restitution to the State of Maryland 

for the damage he did to Maryland’s seafood resources. 

Finally, through a criminal plea agreement in United States v. Duke Energy Business Services, LLC, et al. 

(E.D.N.C., M.D.N.C., W.D.N.C.), the long-term damage caused by criminally negligent maintenance of coal 

ash basins was addressed through $10 million 

paid to an authorized wetlands mitigation bank 

for the purchase of wetlands or riparian lands to 

offset the long-term environmental impacts to the 

states where those basins are located. 

Duke Energy Coal Ash Spill, EPA photo 

44 | oil & superfund waste
 
 

PROMOTING RESPONSIBLE 


STEWARDSHIP OF AMERICA’S 


WILDLIFE AND NATURAL 


RESOURCES


A critical part of the Division’s mission is to protect and promote responsible stewardship of America’s 

wildlife and natural resources. For example, the Division defends decisions by the U.S. Departments 

of Agriculture and the Interior with respect to water use and federal land management, actions by the 

National Oceanic and Atmospheric Administration and FWS to protect threatened and endangered 

species, and regulations and permits that provide essential oversight for energy and mineral 

extraction activities. 

Defending Agency 

Management of Sensitive 

Resources 

 US Forest Service Logo 

Successful Defense of the Forest Service Planning Rule and Important Forest Projects 

In Federal Forest Resource Coalition v. Vilsack (D.D.C.), NRS defeated challenges to the 2012 

National Forest Management Act Planning Rule, which governs the development of land use plans on 

National Forests and National Grasslands nationwide. Plaintiffs claimed the rule violated the Forest 

Service’s statutory mandates under the Organic Act, the Multiple Use-Sustained Yield Act, and the 

National Forest Management Act, by promoting “ecological sustainability” over provision of timber 

and other multiple uses. ENRD succeeded in moving the court to dismiss the challenges for lack of 

standing. 

Protection of Sensitive Resources in Alaska 

In Agdaagux Tribe of King Cove v. Jewell (D. Alaska), ENRD successfully defended the Secretary of 

Interior’s 2013 decision to reject a land exchange that would have permitted construction of a road 

across the Izembek National Wildlife Refuge. The court rejected plaintiff’s claims that the Secretary’s 

decision violated the Omnibus Public Land Management Act of 2009, the Administrative Procedure 

Act (APA), NEPA, the Alaska National Interest Lands Conservation Act (ANILCA), and the United 

States’ trust responsibility to Alaska Natives. In Alaska v. Jewell (D. Alaska), ENRD successfully 

wildlife and natural resources | 45
 
Izembek National Wildlife Refuge FWS photo 

Stanislaus National Forest USDA photo 

46 | wildlife and natural resources
 
 

 

 

derailed an attempt by the State of Alaska to require the Secretary of the Interior to review and approve the 

State’s plan for exploration of oil and gas resources within the coastal plain of the Arctic National Wildlife 

Refuge. The Division defeated the State’s claims that Interior had an ongoing duty under Section 1002 of 

ANILCA to evaluate and approve such plans by establishing that the statutory duty expired in 1987. 

Successes in Federal Courts of Appeals 

• On November 4, 2014, in American Whitewater v. Tidwell (4th Cir.), the Fourth Circuit upheld a decision 

by the U.S. Forest Service allowing limited rafting on the Chattooga River. Plaintiffs were recreational 

user groups who claimed that the Forest Service violated the Wild and Scenic Rivers Act (WSRA), the 

Forest Service Manual, and the APA when it amended the Forest Plans of three National Forests in 2012 

to allow limited rafting on the Upper Chattooga. In 1974, the Forest Service designated the forests as “wild 

and scenic” under the WSRA and prohibited floating on the Upper Chattooga, but in 2012 modifi ed the 

prohibition to allow floating during some months of the year. Plaintiffs challenged the remaining restrictions. The court rejected Plaintiffs’ arguments, and held that the Forest Service’s methodology for assessing 

potential user conflict was entitled to deference under the APA. 

• On May 26, 2015, in Center for Biological Diversity v. Higgins (9th Cir.), the Ninth Circuit upheld the 

district court’s denial of a preliminary injunction to halt the Forest Service’s implementation of the Rim Fire 

Recovery Project in the Stanislaus National Forest in eastern California. The 2013 Rim Fire was the third 

largest wildfire in California history, burning over 250,000 acres of land in the Sierra Nevada Mountain 

Range. The Recovery Project was developed to reduce hazardous trees and fuel load in the drought areas, 

and reconstruct damaged roads. Although the Project was supported by many organizations, plaintiffs 

challenged it, arguing that the Forest Service’s adoption of the project violated NEPA. The court of appeals 

held that the Forest Service had taken a “hard look” at the project’s impact on the California spotted owl, 

and that it had not ignored or minimized scientific studies suggesting that the salvage harvest of timber 

harmed the spotted owl’s foraging habitat. 

• On August 31, 2015, in Freedom from Religion Foundation v. Weber (9th Cir.), the Ninth Circuit affirmed 

the district court’s grant of summary judgment for the Forest Service. Plaintiffs challenged the Forest 

Service’s decision to reissue a special use permit for the Knights of Columbus to maintain a statue of Jesus 

they had erected in 1954 on Forest Service lands that are part of a ski resort in northwestern Montana. The 

court’s opinion applied the traditional analysis of Lemon v. Kurtzman, 403 U.S. 602 (1971) and held that 

the Forest Service’s action had the secular purpose of preserving a local historical landmark, and that the 

permit reissuance did not constitute an endorsement of religion. A concurring opinion argued that the 

privately-owned statue is not government speech and should therefore be analyzed under “public forum” 

rather than Establishment Clause jurisprudence. He concluded that Forest Service lands are a public forum 

and that the Forest Service’s rules and its conduct were both neutral with respect to religion, and thus 

permissible. A dissenting judge argued that a reasonable observer would perceive the statue as projecting a 

message of government endorsement of religion. 

Facilitating Land Management Decisions Designed to Protect Federal 

Lands From and Respond to Catastrophic Fire and Insects 

ENRD has continued to successfully defend the Forest Service’s efforts to use active forest 

management to move forest lands toward a more resilient and healthy condition. 

• For example, in Conservation Congress v. U.S. Forest Serv. (E.D. Cal.), the Division successfully defended 

the Porcupine Project on the Shasta-Trinity National Forest, which authorizes timber harvest and other 

wildlife and natural resources | 47
 
 

vegetation management treatments designed to reduce fire risk and facilitate the creation of additional 

habitat for the California spotted owl. 

• In Conservation Congress v. George (N.D. Cal.), ENRD successfully defended the Kelsey Peak Timber 

Sale and Fuelbreak Project on the Six Rivers National Forest. The project was designed to improve habitat 

for the northern spotted owl, reduce fire hazards, and provide forest products to the local economy. The 

court upheld the Forest Service’s compliance with NEPA, the ESA, and the National Forest Management 

Act, noting that the government met all of its environmental obligations by developing a project that 

protects and improves owl habitat. 

• In Center for Biological Diversity v. Hays (E.D. Cal.), the Division successfully defended a NEPA 

challenge to the immediate implementation of the Bald Fire Restoration Project. The Bald Fire burned over 

39,000 acres, mostly on the Lassen National Forest in northern California. ENRD succeeded in defending 

the preliminary injunction challenge to the Project, allowing salvage and restoration operations—which are 

key to public safety and the ability to recovery commercially valuable timber—to begin on schedule. 

Defending the Bureau of Land 

Management’s and the Forest 

Service’s Land Management 

Discretion 

• Plaintiffs in three consolidated cases, 

In re Big Thorne Project and 2008 

Tongass Forest Plan (D. Alaska), 

challenged green timber sales on the 

Tongass National Forest under NEPA 

and the National Forest Management 

Act, as well as challenging aspects of the 

2008 Tongass Forest Plan. The sales 

were part of the U.S. Department of 

Agriculture’s effort to provide a supply 

of bridge timber to allow the timber 

Northern Spotted Owls FWS photo industry in Southeast Alaska to make 

the transition from the harvest of old 

growth timber to the harvest of second growth timber. On summary judgment, the district court ruled in 

the government’s favor on all issues. The decision allows the Agency to proceed with its efforts to facilitate 

this important shift in management while still providing a steady stream of timber. 

• This year the Division also favorably resolved series of lawsuits challenging BLM’s timber sale program 

in western Oregon. In Swanson Group Mfg. v. Jewell (D.C. Cir.), the D.C. Circuit held that the plaintiff 

timber industry associations and members had failed to demonstrate Article III standing to sue the 

Departments of Agriculture and the Interior for alleged violations of the California Railroad and Coos Bay 

Wagon Road Grant Lands Act of 1937 (“O&C Act”). Plaintiffs alleged that Interior violated the Act by failing 

to offer for sale each year a minimum quantity of timber from lands managed under that statute, and that 

both agencies violated the APA by failing to conduct notice and comment rulemaking before preparing 

and using a methodology for estimating the effects of federal actions on the northern spotted owl. The 

district court granted summary judgment to the plaintiffs on both counts and directed BLM to sell or offer 

for sale each year the declared allowable sale quantity of timber in two BLM districts in Oregon. The D.C. 

Circuit reversed and remanded for the district court to dismiss the complaint because the plaintiffs had not 

48 | wildlife and natural resources
 
 

 

demonstrated that they had standing. Specifically, the court of appeals held that it could not consider 

declarations submitted after the district court’s judgment and that none of the remaining declarations 

were suffi ciently specific to prove standing. 

This favorable decision prompted the district court to dismiss for lack of standing three follow-on 

lawsuits brought by the same or similar plaintiffs. First, the district court dismissed plaintiffs’ claim 

in Swanson Group Mfg. v. BLM (D.D.C.) that the BLM failed to fulfill its alleged mandatory duty to 

offer for sale a specific quantity of timber from all six of its western Oregon districts (encompassing 

approximately 2.5 million acres). Second, the district court dismissed plaintiffs’ claim in American 

Forest Resource Council v. Jewell (D.D.C.) that BLM lacked the authority to set aside reserves where 

no sustained yield timber harvest is permitted on lands subject to the O&C Act. Third, in Carpenters 

Industrial Council v. Jewell (D.D.C), the district court dismissed plaintiffs’ challenge to FWS’s decision 

to designate 9.3 million acres of critical habitat for the northern spotted owl. 

• Separately, in Jarita Mesa Livestock Grazing Association v. U.S. Forest Service (D.N.M.), the Division 

secured dismissal of the majority of claims alleging that a Forest Service district ranger violated livestock 

grazing permittees’ First Amendment and statutory rights by reducing grazing on the Jarita Mesa and 

Alamosa Allotments on the Carson National Forest. Plaintiffs, who are local livestock associations and 

Spanish-American/Hispanic permittees, accused the district ranger of reducing permitted livestock 

numbers on the allotments in retaliation for their speaking out against the ranger’s management 

practices. Having dismissed plaintiffs’ First Amendment claim last Fiscal Year, the district court 

dismissed most of plaintiffs’ claims under NEPA and land management statutes, finding that plaintiffs’ 

administrative appeals had failed to raise these claims. The court also found that many of these claims 

were not cognizable as presented by plaintiffs. 

• In April 2015, the district 

court upheld the Forest Service’s 

decision to allow the 17.4-acre, 

uranium-ore Canyon Mine to 

proceed. In Grand Canyon 

Trust v. Williams (D. Ariz.), 

plaintiffs sued to stop the mine 

because it was six miles south of 

the Grand Canyon—although the 

Forest Service had completed an 

environmental impact statement 

and tribal consultation in 1986. 

Earlier litigation resulted in a 

1991 favorable decision in the 

Ninth Circuit, but operations 

were subsequently halted due 

to the low price of uranium. 

Recently, the mining company 

stated its intent to restart operations. Plaintiffs alleged violations of NEPA, the National Historic Preservation Act, the National Forest Management Act and the Organic Act of 1897. The district court upheld 

the Forest Service’s analysis and conclusions in all respects. This decision has allowed the Forest Service 

to advance its multiple-use mission while ensuring that the mining company complies with all legal 

requirements. 

Grand Canyon National Park, NPS photo 

wildlife and natural resources | 49
 
 

• In a separate case, a non-profit citizens group asserted NEPA and Federal Land Policy and 

Management Act (FLPMA) claims challenging BLM’s issuance of a land-use authorization to Over the 

River Corporation, formed by the artist Christo, to construct an art project that would intermittently 

cover six miles of the Arkansas River with fabric panels. On January 2, 2015 the court affi rmed BLM’s 

decision in Rags Over the Arkansas River v. BLM (D. Colo.). With respect to NEPA, the court held 

that the record demonstrated the agency’s hard look at potential impacts to bighorn sheep and traffic, 

and that removal of a visitor center and parking lot from the project’s original design did not require 

supplementation of the NEPA analysis. With respect to FLPMA, the court determined that BLM had not 

acted arbitrarily in determining the project was in conformance with the resource management plan for 

the area. The court repeatedly stated that determining plan conformance was a decision within BLM’s 

specific expertise and therefore entitled to deference. The court also deferred to BLM’s interpretation of 

the phrase “clearly consistent” in the applicable regulations. 

Protecting United States’ Property Interests 

• In United States v. Board of Commissioners for Otero County & State of New Mexico (D.N.M.), 

the Division obtained a favorable decision in an affirmative case to stop Otero County, New Mexico 

from removing trees on more than 65,000 acres of the Lincoln National Forest without approval from 

the Forest Service. Otero County had passed a resolution stating it had no obligation to comply with 

federal law, and could use the County’s police powers to address an alleged fire hazard pursuant to a 

New Mexico statute purporting to give counties the authority to do so. The district court held that the 

Otero County resolution and New Mexico statute were in “direct conflict” with federal law governing 

management of National Forest System lands, and therefore declared the resolution and statute unconstitutional and invalid under the Property Clause and Supremacy Clause of the Constitution. 

ENRD also achieved a significant settlement in litigation over claims to highway rightsof-way on federal land under a repealed federal statute known as “R.S. 2477.” 

• For example, in Hallauer v. United States (E.D. Wash.), plaintiffs who were seeking to quiet title 

to several roads over BLM land in Okanogan County, Washington agreed to voluntarily dismiss their 

claims with prejudice and instead submit administrative applications for rights-of-way – which BLM 

subsequently granted. 

• In City of Tombstone v. United States (D. Ariz.), ENRD defeated attempts by the City of Tombstone, 

Arizona to claim control over an easement for a water pipeline in the Coronado National Forest. The 

court dismissed the City’s Quite Title Act claims after finding that the City was not the proper party to 

assert claims under R.S. 2477 and that the City’s claims for rights-of-way under R.S. 2339 and R.S. 2340 

were barred by the 12-year statute of limitations. The court also rejected the City’s claims under the APA 

and the Tenth Amendment to the U.S. Constitution. 

• On December 2, 2014, the Tenth Circuit issued a largely favorable decision for the Kane County v. 

United States (10th Cir.), a suit by Kane County, Utah, seeking to quite title in itself to several purported 

R.S. 2477 rights-of-way (“ROWs”) that traverse land managed by BLM. R.S. 2477 is an 1866 federal 

statute that grants rights-of-way for the construction of highways across unreserved public lands. The 

Tenth Circuit held that in order to establish jurisdiction under the Quiet Title Act, (“QTA”), “a plaintiff 

must show that the United States has either expressly disputed title or taken action that implicitly 

disputes it.” Actions that might merely present a “cloud on title,” as the district court had required, 

are not sufficient. The appellate court found that the Quiet Title Act’s requirement of a “disputed title 

50 | wildlife and natural resources
 
 

to real property in which the United States claims an interest,” 28 U.S.C. § 2409a, was part of the 

waiver of sovereign immunity and the district court’s formulation was incompatible with the rule that 

conditions on waivers of sovereign immunity must be specifically observed. The appellate court then 

held that the plaintiffs had not carried their burden to establish jurisdiction over several of the roads 

(as to some roads, plaintiffs had pointed to Management Plan maps that were merely ambiguous as to 

the status of some roads; as to other roads, they pointed only to ROWs granted under the FLPMA to a 

private party but that did not conflict with potential ROWs under R.S. 2477). 

• County of Shoshone, Idaho 

v. United States (9th Cir.). On 

October 31, 2014, the Ninth 

Circuit affirmed a district court 

judgment that Eagle Creek 

Road, located within the Idaho 

Panhandle National Forest, is 

not an R.S. 2477 public rightof-way. The road was established 

in the early 1880s to serve a 

small mining community (Eagle 

Creek), but that community faded 

away within two years and the 

road received only sporadic use 

thereafter. In 1997, the Forest 

Service closed four miles of the Gallatin National Park, NPS p road due to damage caused by 

flooding. Shoshone County sued the United States under the Quiet Title Act, claiming that it held a 

right-of-way under R.S. 2477. In its decision, the Ninth Circuit held that the county had sued within 

the applicable statute of limitations period, but that it had not met the standards established under 

Idaho law for creation of a highway right-of-way, specifically “regular public use” for a period of five 

years. After the Eagle Creek mining camp was essentially abandoned, the “road” reverted to nothing 

more than a trail and its use, rather than being usual was more appropriately characterized as “casual 

or desultory.” 

Successful Implementation of the Endangered Species Act 

Congress enacted the ESA “to provide a means whereby the ecosystems upon which endangered and 

threatened species depend may be conserved, [and] to provide a program for the conservation of such 

endangered species and threatened species.” Congress authorized the Departments of the Interior 

and Commerce, acting through FWS and NMFS respectively, to achieve this objective by listing 

imperiled species, designating critical habitat for such species, and then applying the protections of the 

ESA. Such decisions are often challenged. 

In FY 2015, ENRD attorneys achieved favorable results in several such cases, thereby allowing full and 

effective implementation of the ESA and its protections. 

• For example, in Friends of Animals v. FWS (D. Or.), Division attorneys successfully turned back a 

challenge to actions being undertaken in Oregon national forests to implement an ESA recovery plan 

intended to conserve endangered Northern spotted owls. Accordingly, this important recovery plan 

action was able to move forward. 

hoto 

wildlife and natural resources | 51
 
• On February 27, 2015, in American Forest Resource Council v. Ashe (D.C. Cir.), the D.C. Circuit upheld 

FWS’s “12-month finding” that denied a petition by a timber harvesters’ trade association to remove from 

the list of endangered and threatened species the “distinct population segment” (DPS) of the marbled 

murrelet that exists in California, Oregon and Washington. This tri-state population of the murrelet 

(a seabird that nests in coastal, old growth forest in the U.S and Canada) was listed as threatened in 

1992 under the DPS provision of the ESA. In the 12-month finding, FWS determined that the tri-state 

population met the criteria for a DPS–namely that the population be both “discrete” and “signifi cant” to 

the taxon as a whole. The court concluded that FWS’s interpretation of those criteria was reasonable and 

that the agency had a sufficient factual basis to conclude that the tri-state population was both significant 

and discrete. 

• On May 26, 2015, in National Association of Home Builders v. United States Fish & Wildlife Service 

(D.C. Cir.), the D.C. Circuit affirmed the district court’s judgment in favor of FWS. Home Builders 

sought to overturn two settlement agreements that were designed to allow FWS to evaluate in an orderly 

fashion whether a backlog of 251 species should be listed under the ESA. The D.C. Circuit held that Home 

Builders lacked standing to assert their claims. Home Builders identified no “plausible statutory basis” 

for the procedural harms they asserted, nor did they show that the alleged procedures were “designed 

to protect” their interest in delaying listing decisions. The court of appeals noted that the designed-toprotect prong of the procedural injury analysis applied even though Home Builders had sued under the 

ESA’s citizen suit provision, which negates the zone-of-interests test. The court of appeals further held 

that because Home Builders’ expenditures to conserve several species were not “dictated” by FWS, those 

expenditures were voluntary and therefore did not support standing. 

• Bear Valley Mutual Water Co. v. Jewell (9th Cir.). On June 25, 2015, the Ninth Circuit rejected a 

challenge to FWS’s final rule designating critical habitat for the Santa Ana Sucker, a species listed as 

threatened under the ESA. A number of California water districts and municipalities sued FWS alleging 

that the final rule violated the ESA and NEPA. The district court entered judgment in favor of the federal 

defendants concluding that the final rule complied with the ESA. The court held that the decision not to 

exclude certain lands from the critical habitat designation was not subject to judicial review and that the 

inclusion of other lands was not arbitrary and capricious. The appellate court also held that FWS did not 

need to comply with NEPA, as the Ninth Circuit had previously held in Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), that NEPA did not apply to the critical habitat designation process. 

Defending National Marine 

Fisheries Service’s Management 

of Ocean Fisheries 

The Magnuson Stevens Fishery 

Conservation and Management Act 

(MSA) and other related statutes 

charge the National Marine Fisheries 

Service (NMFS) with the difficult 

task of managing ocean commercial 

fishing to provide for conservation and 

sustainable fishing while, at the same 

time, optimizing fishing yield. In FY 

2015, ENRD successfully defended 

various fishery management actions 

necessary to meet these objectives. Bering Sea, USGS photo 

52 | wildlife and natural resources
 
 

 

 

 

This year, attorneys in the Wildlife and Marine Resources Section obtained favorable decisions 

upholding regulations implementing South Atlantic Snapper-Grouper Fishery Management Plan 

in NRDC v. NMFS (D.D.C.), the Pacific whiting Fishery Management Plan in Glacier Fish Co. v. 

Pritzker (W.D. Wash.), and the plan for groundfish fisheries (including pollock, Pacific cod, Atka 

mackerel) in the Bering Sea and Aleutian Islands in Oceana, Inc. v. Pritzker (D. Alaska). In so 

doing, Section attorneys ensured that the balance developed by NMFS between providing necessary 

protections for the fishery without causing undue economic hardship was implemented. 

Fair enforcement of fishery regulations is also critical to NMFS’ fi shery program. 

• In Black v. Pritzker (D.D.C.), ENRD attorneys successfully defended a NMFS-penalty assessment 

of $1.5 million for 19 violations of regulations intended to protect bigeye and yellowfin tuna stocks 

consistent with international agreements and for five violations of the Marine Mammal Protection 

Act (MMPA) for knowingly setting purse seine fishing gear on whales in an effort to harvest tuna. 

In upholding NMFS’ enforcement decision, ENRD ensured that all participants in the fishery 

operate on a level playing field and that the fishery remains sustainable into the future. 

Protecting Marine Mammals 

Under the MMPA, any entity wishing to import marine mammals caught in the wild for public 

display purposes must obtain a permit from NMFS. The permit applicant must meet the stringent 

standards of the MMPA, which include requirements, among others, that the proposed import by 

itself or in combination with other activities, will not likely have a significant adverse impact on 

the species or stock and that the proposed import would not likely result in the taking of marine 

mammals by driving up overall demand for species. 

• In Georgia Aquarium, Inc. v. Pritzker (N.D. Ga.), the 

Division defended a suit filed by the Georgia Aquarium 

challenging a permit denial. The Georgia Aquarium had filed 

a permit application seeking authority to import for display 

purposes 18 beluga whales from Russia. These whales were 

captured in the wild between 2006 and 2011 in the Sea of 

Okhotsk. After a lengthy administrative process, NMFS 

denied the permit application, finding that the Aquarium had 

not made the requisite showings. 

After extensive summary judgment proceedings, on 

September 28, 2015, the court upheld NMFS’ decision in its 

entirety in a 99-page opinion. The court agreed with NMFS 

that the Aquarium bore the burden under the MMPA of showing that the proposed imports met 

the statutory and regulatory requirements and were consistent with the protective purposes of the 

MMPA. The court agreed that the Aquarium failed to meet that burden. 

Successful Implementation of the Convention on International Trade in Endangered 

Species of Wild Fauna and Flora (“CITES”) 

The United States is a signatory to CITES, a multilateral treaty that aims to protect vulnerable 

wildlife by regulating trade in species that are threatened with extinction as well as species that 

are not necessarily threatened with extinction at present but may become so unless trade in such 

Beluga Whale, Wikipedia photo 

wildlife and natural resources | 53
 
 

 

 

 

species is subject to strict regulation. CITES ensures that trade in these species is regulated and sustainable 

through the use of standardized import and export 

permits and other mechanisms. 

• Of note this past year was Safari Club International 

v. Jewell (D.D.C.), in which the Division defended 

FWS’s decision, under the ESA and CITES, to suspend 

the importation of sport-hunted elephant trophies 

from Tanzania and other locations. Due to worsening 

circumstances related to the protection and conservation of elephants in Tanzania, FWS announced 

a prohibition on further importation of elephant 

trophies from the region until further review could be 

undertaken. Hunting interest groups challenged the 

moratorium. After briefing by ENRD attorneys, the 

court granted the United States’ motion to dismiss 

plaintiffs’ claims related to Tanzania, thereby allowing 

the prohibition to remain in effect and providing Af needed protections to Tanzanian elephants. 

Co-Chairing the Presidential Task Force on Wildlife Trafficking 

Illegal trafficking in wildlife, plants and timber, and marine creatures has reached epidemic proportions. 

It is both a critical conservation concern—threatening the survival of many species throughout the world— 

and a growing threat to regional stability and global security that requires increased attention. United 

States efforts to tackle this crisis are coordinated through the Presidential Task Force to Combat Wildlife 

Trafficking, established by President Obama through Executive Order on July 1, 2013. The Division 

represents the Department of Justice on this Task Force, which is co-chaired by the Attorney General and 

the Secretaries of State and the Interior or their designees. The Task Force also includes senior-level representatives from 14 additional federal departments and agencies, including the Departments of Commerce, 

Defense, Treasury, Agriculture, and Homeland Security, as well as the United States Agency for International Development (USAID) and the Office of the Director of National Intelligence. 

The Task Force developed the first-ever National Strategy for Combating Wildlife Trafficking, which was 

issued by the President on February 12, 2014. The Strategy reflects a “whole-of-government” approach 

that will both strengthen anti-trafficking efforts already underway in ENRD and other federal agencies 

and elevate illegal wildlife trafficking as a priority for additional agencies whose missions include law 

enforcement, trade regulation, national security, international relations, and global development. The 

Strategy identified three strategic priorities that the Task Force deemed critical to combating wildlife 

trafficking: strengthening domestic and global enforcement, reducing demand for illegally traded wildlife, 

and building international cooperation and public-private partnerships. 

In fiscal year 2015, ENRD worked in close coordination with the other Task Force agencies to draft an 

implementation plan for the Strategy, which the Task Force issued in February 2015. The Implemenrican Elephant, FWS photo 

54 | wildlife and natural resources
 
 

 

 

 

tation Plan recognized that achieving the Strategy’s goals would require a significant and sustained 

commitment over the long term and identified both short- and long-term next steps toward each of the 

objectives set out in the Strategy. The Division continues to work in concert with the other Task Force 

agencies to carry out its responsibilities under the Strategy and Implementation Plan. 

The Division’s primary role in stopping wildlife trafficking is direct enforcement of the wildlife 

trafficking laws. We work closely with investigative agencies throughout the government to prosecute 

high-level traffickers in an effort to take the profit out of wildlife trafficking. ENRD also works closely 

with other Task Force agencies to increase capacity to combat wildlife trafficking, both at home and 

abroad. For example, to increase domestic prosecutorial capacity, ENRD spearheaded DOJ’s devotion 

of two of the six issues of the U.S. Attorneys’ Bulletin published in 2015 to a wide range of issues 

involving wildlife trafficking and related crime. The articles in these issues reflected the contributions 

of multiple Task Force agencies and provide critical guidance and encouragement for investigators and 

prosecutors on increasing their participation in the fight against wildlife trafficking. The Division also 

began work in fiscal year 2015 on a new capacity building initiative in Africa. 

With funding from the Department of State and assistance from USAID, ENRD is implementing a series 

of regional capacity building workshops on wildlife trafficking for judges and prosecutors in Africa. The 

first of the series was conducted in Livingstone, Zambia, in October 2015 for 32 judges and prosecutors 

from six southern African nations (Angola, Botswana, Malawi, Mozambique, Namibia, and Zambia). 

The training, assisted by subject matter experts from the U.N. Office on Drugs and Crime and anti-trafficking NGOs, included sessions on evidentiary and prosecutorial issues unique to wildlife trafficking 

cases, as well as sessions on money laundering, asset tracing, and corruption issues. Additional sessions 

are planned for 2016 and will extend to certain central and west African states. 

The high priority given by the Division to combating wildlife trafficking is also reflected in our efforts, 

often taken in conjunction with other Task Force agencies, to build international commitment and 

cooperation in this area. 

• Assistant Attorney General John C. Cruden led the U.S. delegation to the Kasane, Botswana 

Conference on Combatting Illegal Wildlife Trade in March, 2015. The United States joined participating 

countries from throughout Africa, the European Union, and various Asia countries, including China and 

Viet Nam, in committing to increased international cooperation to stop the illegal slaughter of elephants 

for their ivory. AAG Cruden also attended the second African Elephant Summit during this trip to 

Botswana in March 2015. 

• The Division also joined the State Department and other agencies from the President’s Wildlife 

Trafficking Task Force in discussing strategies for combating wildlife trafficking at the U.S.-China 

Strategic & Economic Dialogue held in Washington, D.C. in June 2015. 

wildlife and natural resources | 55
 
 

MAKING PROGRESS TOWARD 

ACHIEVING THE GOAL OF 

ENVIRONMENTAL JUSTICE 

All Americans deserve to live, work, play, and 

learn in places that have clean air, water, and land. 

Environmental justice means that all Americans are 

afforded fair treatment and full protection under 

the nation’s laws, including environmental, civil 

rights, and health and safety laws. In addition, every 

American should have the opportunity to participate 

meaningfully in the decision-making processes that 

affect their environment. However, the burdens 

of pollution often still fall disproportionately on 

low-income and minority communities who do not 

have that meaningful opportunity to be heard. ENRD EPA phot remains deeply committed to ensuring that the goals 

and principles of environmental justice are part of our mission and appropriately integrated into 

our work. In 2015, ENRD continued to achieve meaningful environmental justice results and to 

work on many fronts to help make environmental justice a reality. 

o 

“Because we all deserve the chance to live, learn, and 

work in healthy communities, my Administration 

is fighting to restore environments in our country’s 

hardest-hit places. . . . . While the past two decades have seen 

great progress, much work remains. In the years to come, we 

will continue to work with States, tribes, and local leaders to 

identify, aid, and empower areas most strained by pollution. By 

effectively implementing environmental laws, we can improve 

quality of life and expand economic opportunity in overburdened 

communities.” 

—President Barack Obama, February 10, 2014 Presidential 

Proclamation: 20th Anniversary of Executive Order 12898 on 

Environmental Justice

As one of the 17 federal 

agencies and White House 

offices that signed a 

Memorandum of Understanding on Environmental 

Justice (MOU) in August 

2011, the Department 

of Justice helps lead the 

federal government’s efforts 

to make environmental 

justice a reality for all 

Americans. Building upon 

Executive Order 12898–the 

federal government’s first 

statement of an environ56 | environmental justice
 
Google Maps Photo 

Google Maps Photo 

environmental justice | 57
 
mental justice policy–the MOU represents the federal government’s renewed commitment to environmental justice. The MOU promotes interagency collaboration and public access to information about 

agency work on environmental justice, and specifically required each agency to publish an environmental justice strategy, provide an opportunity for public input on those strategies, and produce annual 

implementation progress reports. In 2015, the Division achieved significant results for the American 

people as it continued to implement its Environmental Justice Strategy, Executive Order 12898, and the 

MOU. 

The Department’s environmental justice 

public website (www.justice.gov/ej), 

launched in September 2011, provides 

information about DOJ policies, case 

resolutions, and contact information as 

well as access to view and comment on 

the Department’s Environmental Justice 

Strategy and Guidance. The Department

has also made its Annual Implementation 

Progress Reports available on the website. 

DOJ Website 

Collaborative Work with Other Federal Agencies and Department Components in Fiscal 

Year 2015 

Interagency Working Group on Environmental Justice (EJ IWG) 

The EJ IWG, established by Executive Order 12898, is chaired by the EPA and the White House Council 

on Environmental Quality (CEQ). The formation of the EJ IWG highlights the importance of federal 

agencies working collaboratively to address environmental justice concerns. The EJ IWG works to 

facilitate the active involvement of all federal agencies in implementing Executive Order 12898 by 

minimizing and mitigating disproportionate negative impacts on overburdened communities and 

fostering environmental, public health, and economic benefits for all Americans. The EJ IWG provides a 

forum for federal agencies collectively to advance environmental justice principles. It works as a federal 

family to assist communities in building capacity to promote and implement innovative and comprehensive solutions to address environmental justice concerns. 

Through its work with the EJ IWG, the Department has assumed a leadership role in ensuring a 

coordinated federal response to environmental justice issues. Representatives from ENRD and the Civil 

Rights Division (CRT) regularly participate in EJ IWG senior staff-level meetings and identify ways the 

Department can support and further the EJ IWG’s work. On May 27, 2015, EPA Administrator Gina 

McCarthy and former EPA Chief of Staff Gwendolyn Keyes Fleming hosted a Cabinet-level meeting of 

the EJ IWG. The Department’s Deputy Attorney General Sally Yates and senior leadership from ENRD 

and CRT attended the meeting. 

Implementing the Interagency Memorandum on Environmental Justice 

The Department played an important leadership role in the conception and development of the MOU 

and continues to play an important role in its implementation. The MOU identifies four focus areas 

for the EJ IWG as agencies implement their environmental justice strategies: (1) implementation 

of NEPA; (2) implementation of Title VI of the Civil Rights Act of 1964, as amended (Title VI); (3) 

addressing impacts from climate change; and (4) addressing impacts from commercial transportation and supporting infrastructure (often referred to as “goods movement”). The Charter to the MOU 

was updated in 2015 and now includes a governance structure and a requirement for agency senior 

58 | environmental justice
 
leadership to meet twice a year to discuss agency collaboration efforts and commitments that will help 

further efforts to achieve environmental justice. 

The EJ IWG governance structure identifies the following permanent EJ IWG committees: 

• Public Participation, 

• Regional Interagency Working Groups, 

• Strategy and Implementation Progress Reports, and 

• Title VI of the Civil Rights Act of 1964. 

Consistent with the Presidential Memorandum issued with Executive Order 12898, and based on 

public recommendations, every three years the EJ IWG also determines if there are additional focus 

areas for federal agencies to consider and address. During fiscal years 2016–2018, the EJ IWG will 

maintain the following additional committees to address five focus areas: 

• Native Americans/Indigenous Peoples, 

• Rural Communities, 

• Impacts from Climate Change, 

• Impacts from Commercial Transportation (Goods Movement), and 

• NEPA. 

ENRD was instrumental in establishing the newly formed Native Americans/Indigenous Peoples 

Committee in 2015, which it co-chairs. 

EJ IWG NEPA Committee 

During 2015, the Division, through its Natural Resources Section (NRS), continued its active participation on the NEPA Committee of the EJ IWG, which is dedicated to cross-agency education and 

coordination to foster the incorporation of environmental justice principles into decision-making 

through the NEPA process. NEPA is designed for federal agencies to carry out their programs to 

ensure that all communities and people across this nation are afforded an opportunity to live in a 

safe and healthy environment. NEPA requires federal agencies, before they act, to assess the environmental consequences of their proposed actions for the dual goals of informed agency decision-making 

and informed public participation. Additionally, NEPA gives communities the opportunity to access 

public information on and participate in the agency decision-making process for federal actions. 

The Presidential Memorandum accompanying Executive Order 12898 underscores the importance 

of procedures under NEPA to “focus federal attention on the environmental and human health 

conditions in minority communities and low-income communities with the goal of achieving environmental justice.” 

NRS has been particularly involved in the two NEPA Subcommittees: the Education and Community 

of Practice (COP) Subcommittees. The NEPA COP Subcommittee has completed the Draft Report on 

“Promising Practices on EJ Methodologies in NEPA Reviews.” It provides a framework for meaningful 

engagement, developing and selecting alternatives, and identifying minority and low-income 

populations. The NEPA Committee has also completed a training module as a companion to the 

Promising Practices document. 

environmental justice | 59
 
Increasing Communication and Awareness across Federal Agencies 

The Division continues to collaborate directly with other federal agencies to increase the dialogue on 

and awareness of environmental justice issues. In October 2015, ENRD Assistant Attorney General 

Cruden held a briefing for federal agency General Counsels to increase awareness of the breadth of 

the Division’s work, including its environmental justice efforts. In addition, the cross-agency group 

of career attorneys that ENRD, along with EPA’s Office of General Counsel, organized in fi scal year 

2011 to discuss legal issues regarding environmental justice, remained an important vehicle for 

increasing communication and awareness. During fiscal year 2015, the group (known as “Law Leaders 

on Environmental Justice”) continued to serve as an important forum for open dialogue, continuing 

education, and informal counseling among the federal agencies on issues such as environmental 

justice legal training. The group met at the Department of Justice in July 2015 to discuss NEPA and 

the draft “Promising Practices for EJ Methodologies in NEPA Reviews” document developed by the 

NEPA Committee of the EJ IWG. NRS and others from the NEPA Committee briefed the group on 

the draft document. Assistant Attorney General Cruden and several Division attorneys attended the 

meeting. 

NRS also provided training to the Chief Counsel’s Office of the Federal Highway Administration 

regarding environmental justice issues in NEPA litigation. ENRD’s Environmental Defense Section 

discussed the Division’s environmental justice efforts at a Department of Homeland Security’s 

Environmental Law Practice Meeting in November 2015. 

In 2015, ECS provided training on environmental justice issues to criminal environmental investigators. At training programs sponsored by the Southern Environmental Enforcement Network, 

environmental justice principles were taught to state and local environmental investigators and 

regulators from throughout the country. The training included identifying cases that raise environmental justice issues and appropriate steps during case investigation, prosecution, and resolution. 

ECS also continued to coordinate with EPA’s Office of Criminal Enforcement, Forensics and Training, 

working on priorities, case assessment, and interaction with EPA Regional EJ coordinators. The ECS 

EJ Coordinator held regular meetings with EPA personnel assigned to handle EJ matters. 

The Department’s Environmental Crimes Policy Committee–a group of senior attorneys from ECS, 

experienced Assistant United States Attorneys and representatives of federal investigative agencies– 

included environmental justice issues at its annual meeting in September 2015. Members of the 

Attorney General Advisory Committee’s Environmental Issues Working Group also attended this 

meeting. 

Participating in Community and Other Outreach 

The Division has continued to help the EJ IWG fulfill one of its critical responsibilities under EO 

12898–holding public meetings, as appropriate, for the purpose of fact-finding, receiving public 

comments, and conducting inquiries concerning environmental justice. The Division helped plan and 

participate in webinars the EJ IWG held to seek public comment on the draft EJ IWG Framework 

for Collaboration for FY 2016-2018. The Division also now co-chairs the EJ IWG Public Participation 

Committee along with EPA. ENRD will continue to work with the EJ IWG to conduct outreach to 

communities and facilitate public engagement with the EJ IWG. 

In addition to the community outreach conducted with the EJ IWG and in the context of specific 

cases, the Department utilizes other forums to hear from stakeholder communities. For example, an 

ENRD representative attended the September 2015 EPA National Environmental Justice Advisory 

60 | environmental justice
 
Council public meeting held in Arlington, Virginia. These meetings afford communities the 

opportunity to comment on environmental justice issues of concern to them. 

Conducting Outreach on Environmental Justice Issues 

The Department of Justice, including ENRD, the Office of Tribal Justice (OTJ), and U.S. Attorneys’ 

Offices, continues to engage in community outreach to ensure that the Department understands and 

is responding to community concerns. This has taken many forms, including community meetings 

and visits by senior Department officials, participation in EJ IWG community meetings and calls, 

participation in environmental justice conferences, and outreach in conjunction with cases. The 

Department has worked with other federal agency partners and community representatives to 

organize direct outreach. 

In addition to community outreach, Attorney General Lynch and other Department senior staff 

took the opportunity to highlight the importance of environmental justice to audiences inside and 

outside the Department. 

Training and Increasing Awareness 

During 2015, ENRD remained committed to increasing awareness and understanding of environmental justice issues among its attorneys and staff. For example, in September, ENRD included 

environmental justice in its training for new attorneys entering the Division. The Division also held 

brown-bag sessions for interns during the year to discuss the Department’s environmental justice 

efforts. 

ENRD also continued to help foster greater understanding of environmental justice principles 

within the Department of Justice. In June 2015, the Division’s Environmental Crimes and Environmental Enforcement Sections gave a presentation to the new chairs of the Environmental Issues 

Working Group of the U.S. Attorney General’s Advisory Committee. The presentation focused on 

the scope of and factors in assessing environmental justice implications, the role of the Department 

of Justice in achieving environmental justice, outreach and remedies in civil enforcement cases, and 

the intersection of environmental justice and the Crime Victims’ Rights Act. 

Integrating Environmental Justice Principles into ENRD Litigation and Outcomes 

The Division’s work at the local level reflects the Department’s commitment to environmental 

justice and enforcing environmental laws. Through the fair and even-handed enforcement of the 

nation’s environmental and natural resources laws, ENRD’s Environmental Enforcement and 

Environmental Crimes Sections and the U.S. Attorneys’ Offices seek to protect all communities from 

environmental harms. And we work to resolve our cases in the interest of affected communities by 

finding ways to make sure they have a voice in remedies that affect the places in which they live, 

work, play, and worship. 

The following cases concluded by ENRD and the U.S. Attorneys’ Offices, in coordination with our 

agency partners, provide a few examples of how the Department’s efforts furthered environmental 

justice in 2015: 

• On August 17, 2015, the court approved a settlement in United States, et al. v. Arizona Public 

Service Co., et al. (D.N.M.) that will reduce damaging pollution from the Four Corners Power Plant 

located on the Navajo Nation near Shiprock, New Mexico. This Clean Air Act settlement requires 

environmental justice | 61 
the Arizona and New Mexico-based utility companies to install pollution control technology to reduce 

harmful air pollution from the Four Corners Power Plant. The required upgrades to the plant’s sulfur 

dioxide (SO2) and nitrogen oxide (NOx) pollution controls are estimated to cost $160 million. 

EPA expects that the actions required by the settlement will reduce harmful emissions by approximately 5,540 tons per year. SO2 and NOx, two predominant pollutants emitted from power plants, 

have numerous adverse effects on human health and are significant contributors to acid rain, smog, 

and haze. These pollutants form particulates that can cause severe respiratory and cardiovascular 

impacts and premature death. 

The settlement also requires defendants to spend $6.7 million on three types of health and environmental mitigation projects to benefit tribal members: 

(1) $3.2 million to replace or retrofit local residents’ inefficient, higher-polluting wood-burning or 

coal-burning appliances with cleaner-burning, more energy-efficient heating systems; 

(2) $1.5 million for residential weatherization projects that will decrease energy use, such as the 

installation of floor, wall and attic insulation, sealing of windows and doors, duct sealing, passive solar 

retrofits, and testing and repair of combustion appliances; and 

(3) $2 million to establish a Health Care Project trust fund to pay for certain medical expenses for 

tribal residents living near the Four Corners Power Plant suffering from respiratory issues; the funds 

may be used to pay for complete medical examinations, tests, review of current medications, prescriptions, oxygen tanks and other medical equipment, and to pay for transportation to and from the 

hospital or doctors’ offices. 

Importantly, citizen groups, including Diné Citizens Against Ruining Our Environment, To’ Nizhoni 

Ani and National Parks Conservation Association, are co-plaintiffs. The Arizona Public Service 

Company is the operator and primary owner of the Four Corners Plant. El Paso Electric Company, 

Public Service Company of New Mexico, Salt River Project Agricultural Improvement and Power 

District and Tucson Electric Power Company are current co-owners of the plant and Southern 

California Edison Company is a former co-owner of the plant. The settlement resolves claims that the 

companies violated the New Source Review provisions of the Clean Air Act by unlawfully modifying 

the Four Corners Power Plant without obtaining required permits or installing and operating the 

best available air pollution control technology. This settlement is part of EPA’s national enforcement 

initiative to control harmful emissions from large sources of pollution, which includes coal-fi red power 

plants, under the Clean Air Act’s Prevention of Significant Deterioration requirements. 

• Harmful air pollution emissions at facilities in three states will be reduced as a result of the 

settlement reached in United States v. Marathon Petroleum Corporation, et al. (N.D. Ohio). The 

settlement, approved by the court on July 2, 2015, resolves various alleged Clean Air Act violations at 

ten Marathon facilities. The United States alleged that Marathon failed to comply with certain Clean 

Air Act fuel quality emissions standards and recordkeeping, sampling and testing requirements. These 

violations may have resulted in excess emissions of air pollutants from motor vehicles, which can pose 

threats to public health and the environment. Marathon self-reported many of these issues to EPA. 

The settlement requires Marathon to spend over $2.8 million on pollution controls to reduce 

emissions of volatile organic compounds on 14 fuel storage tanks at its distribution terminals that 

are primarily located in areas in Indiana, Kentucky and Ohio with environmental justice concerns. 

Marathon will install geodesic domes, fixed roofs, or secondary rim seals and deck fittings on the 

14 fuel storage tanks. Marathon is also required to use innovative pollutant detection technology 

during the implementation of the environmental mitigation projects. Marathon will use an infrared 

62 | environmental justice 
gas-imaging camera to inspect the fuel storage tanks in order to identify potential defects that may 

cause excessive emissions. If defects are found, Marathon will conduct up-close inspections and perform 

repairs where necessary. 

Marathon will also pay a $2.9 million civil penalty and retire 5.5 billion sulfur credits, which have a 

current market value of $200,000. Sulfur credits are generated when a refiner produces gasoline that 

contains less sulfur than the federal sulfur standard. These credits can be sold to other refiners that may 

be unable to meet the standard. 

• On August 21, 2015, the court approved a settlement in United States and Michigan Department of 

Environmental Quality v. AK Steel Corporation (E.D. Mich.), a Clean Air Act case addressing primarily 

particulate emissions from this large integrated steel mill. The case team met with a local community 

group, represented by experienced environmental counsel, and solicited their input prior to finalizing 

the settlement. The result was a settlement that required AK Steel to fund the installation of air filtration 

systems at nearby public elementary and middle schools as part of a supplemental environmental 

project (SEP), pay a civil penalty of $1,353,126 to the United States and the Michigan Department of 

Environmental Quality (MDEQ), and implement three procedures to insure improved compliance: (i) 

develop an Environmental Management System (EMS) for the facility, including a third-party audit 

every six months; (ii) take various measures to improve the performance of the Electrostatic Precipitator at the facility’s Basic Oxygen Furnace and to insure that it does not deteriorate again; and (iii) 

implement a fugitive dust control policy to prevent large particulate emissions into the adjacent neighborhoods. 

The United States conducted additional community outreach by hosting a community meeting at the 

public school across the street from the steel mill to explain the terms of the settlement and ways local 

residents could submit comments. In advance of the meeting, the United States prepared a one page 

summary description of the settlement and had it translated into Spanish and Arabic. A large percentage 

of the members of the community are Arab-Americans. 

• In United States and Alabama Department of Environmental Management v. McWane, Inc. (N.D. 

Ala.), the United States lodged a settlement with the court on September 1, 2015 requiring McWane to 

spend an estimated $2.5 million to implement an environmentally-beneficial project to reduce harmful 

air pollution in an overburdened community near Birmingham, Alabama. As part of the settlement, 

McWane, a national pipe manufacturer, will complete a paint conversion supplemental environmental 

project that will convert a solvent-based pipe coating system into a powder coatings system at a facility 

in Trussville, Alabama, which is located near an elementary and a secondary school. The wet spray 

system will be replaced with a powder coating system that will virtually eliminate emissions of volatile 

organic compounds and significantly reduce paint waste in the production process. The Trussville plant 

emitted approximately 9 tons of volatile organic compounds from its wet paint operations from 2011 

through 2013. 

The settlement resolved alleged historical violations under the Clean Air Act, CWA, and other environmental laws. McWane paid a civil penalty of $471,031, which was split between the United States and 

the State of Alabama. The settlement did not require prospective corrective actions, because McWane 

has already remedied the violations alleged in the complaint, and the Birmingham facility at issue in the 

case has since permanently shut down. 

• The environmental projects required by the settlement reached in United States v. Bayer CropScience 

(W.D. Va.) will benefit a community with environmental justice concerns in the community of Institute, 

West Virginia. The small community is located just outside the fence line of the Bayer CropScience 

facility. The United States’ complaint resolved by the settlement lodged with the court on September 21, 

environmental justice | 63
 
 

2015, alleged violations of Section 112(r) of the Clean Air Act in connection with a 2008 explosion that 

killed two workers at the facility and caused thousands of people to shelter in place for several hours. 

The settlement requires Bayer CropScience to 

perform the following supplemental environmental projects, which will benefit the fence 

line community, as well as other surrounding 

communities: 

- develop a system to distribute emergency 

alerts to mobile phones, which is expected to 

be particularly useful for homeowners who 

do not have a landline; 

- provide emergency response equipment 

to eight fire departments and two police 

departments to be used in response to 

emergencies such as chemical releases; all 

but two of these fire departments responded 

to the 2008 explosion, and so are expected 

to respond to any other major incident 

potentially impacting the community; 

- fund chemical cleanouts at local high schools and ensure that they have appropriate protective 

equipment; 

- provide shelter-in-place training for local public schools; and 

- build a $3 million sump expansion to prevent spills of industrial wastewater to the river adjacent to 

the facility (and the community). 

• ENRD’s Environmental Enforcement Section and the US Attorney’s Office for the District of New 

Jersey supported EPA in reaching administrative settlements in the Port Newark/Port Elizabeth 

Diesel-Truck Idling matter, as announced by EPA on July 23, 2015. This matter involved diesel-truck 

idling at three marine terminals located at Port Newark/Port Elizabeth in Newark and Elizabeth, New 

Jersey. Newark, New Jersey is the home of the Ironbound community, a large working-class multiethnic neighborhood. Alleged diesel-truck idling at the port, in excess of federally-approved state 

regulatory limits, resulted in excess emissions of harmful air pollutants from diesel exhaust, particularly smog forming pollutants such as NOx and volatile organic compounds. 

EPA reached administrative agreements with four parties, the Port Authority of New York and New 

Jersey (Port Authority), APM Terminals of North America (APM Terminal), Maher Terminals, and 

Port Newark Container Terminals (PNCT). Under its agreement, the Port Authority will provide 

funding for truck owner-operators to replace their old trucks serving the port with newer, less-polluting trucks, and placing anti-idling signs on port roadways. The Port Authority will also provide 

funding up to $1.5 million (if approved by its Board of Commissioners) for terminal operators who 

connect their cargo handling equipment to alternative sources of power such as electricity. In addition, 

the Port Authority will assist the truck operators to create a system to manage truck traffic to further 

reduce air pollution. 

Under their agreements, APM Terminal, Maher Terminals, and PNCT will provide anti-idling 

instructions at gate entrances, install anti-idling signs, and undertake a variety of additional driver 

education efforts to reduce idling. The terminal operators also will provide a total of $600,000 to the 

City of Newark, to be used to pay for green infrastructure projects in areas that are most impacted 

by air pollution from port operations. These projects may include vegetative barriers, plantings, and 

landscaping. The Newark metropolitan area has unhealthy air that does not meet air quality standards 

64 | environmental justice 

Elk River in WV, FWS photo 
for smog. Smog and diesel exhaust particles pose serious health risks, including aggravating the 

symptoms of asthma and other respiratory problems. 

• The agreement reached in In the Matter of: Reichhold, LLC (San Gabriel Valley Area 2 

Superfund Site) (C.D. Cal.) will benefit minority and low-income residents of Azusa, California. 

On March 26, 2015, the Department of Justice approved a Prospective Purchaser Agreement with 

Reichhold, LLC for the purchase of a chemical manufacturing business on 8.8 acres in Azusa, 

California. The property is part of the San Gabriel Valley Area 2 Superfund Site, Baldwin Park, 

California, Operable Unit and is located in a community with environmental justice concerns– 

where approximately 79 percent of the population is Latino, and 35 percent of the population lives 

two times below the federal poverty level. The property was part of the bankrupt estate of Reichhold 

Inc. The purchaser, Reichhold, LLC, is paying $800,000 to the EPA Site special account to fund 

future response actions. Additionally, the sale will retain 22 jobs, prevent blight in an industrial area 

and prevent the abandonment of a facility containing substantial amounts of hazardous substances, 

which could fall into disrepair. 

• Under the settlement lodged with the court on September 15, 2015 in United States v. Puerto 

Rico Aqueduct and Sewer Authority (“PRASA”) (D.P.R.), PRASA has agreed to make major 

upgrades, improve inspections and cleaning of existing facilities within the Puerto Nuevo Regional 

Wastewater Treatment Plant Sewer System and continue improvements to its systems islandwide. These upgrades are necessary to reduce the public’s exposure to serious health risks posed by 

untreated sewage. 

The Puerto Nuevo sewer system serves the municipalities of San Juan, Trujillo Alto, and portions 

of Bayamón, Guaynabo and Carolina. PRASA’s violations include releases of untreated sewage and 

other pollutants into waterways in the San Juan area, including the San Juan Bay, Condado Lagoon, 

Martín Peña Canal and the Atlantic Ocean. These releases have been in violation of PRASA’s 

National Pollutant Discharge Elimination System (NPDES) permits and the CWA. PRASA also 

violated its NPDES permit by failing to report discharges in the Puerto Nuevo sewer system and 

by failing to meet effluent limitations and operations and maintenance obligations at numerous 

facilities island-wide. 

Under the agreement, PRASA will spend approximately $1.5 billion to make necessary improvements. PRASA will undertake a comprehensive operation and maintenance program in the Puerto 

Nuevo sewer system, including conducting a comprehensive analysis of the system to determine 

whether subsequent investments must be made to ensure the system is brought into legal 

compliance and to conduct immediate repairs at specific areas of concern. 

In order to minimize the occurrence of combined sewer overflows and work toward the elimination 

of sanitary sewer overflows and unauthorized releases, EPA has identifi ed specific areas of concern 

within the Puerto Nuevo sewer system that require interim measures to be taken while the sewer 

system is being assessed and repaired. Four of the areas are areas with environmental justice 

concerns: PR-47 (José De Diego 

Street), Barrio Obrero Rexach 

Avenue, Hipódromo Residential 

Development, and Villa Kennedy 

Housing Development. 

PRASA has also agreed to invest 

$120 million to construct sanitary 

sewers that will serve communities Martín Peña Canal, EPA photo 

environmental justice | 65
 
surrounding the Martín Peña Canal, a project that will benefit approximately 20,000 people. For 

decades, the Martín Peña communities have struggled with poverty and environmental degradation. 

This project, which will begin after other infrastructure improvements near the canal are completed, will 

greatly reduce the amount of untreated sewage and other contaminants entering the canal. 

The settlement also requires PRASA to convene community meetings in areas affected by discharges 

that occur in two consecutive weeks, or “continuous overflows,” within two weeks of PRASA’s knowledge 

of the continuous overflows. At these community meetings, PRASA will inform the affected residents of 

conditions that are causing continuous overflows, actions PRASA is taking to address those overflows, 

and the expected date to eliminate the overflows. 

This settlement will update, replace and supersede three existing consent decrees between the United 

States and PRASA. In recognition of the financial conditions in Puerto Rico, the U.S. government waived 

the payment of civil penalties associated with violations alleged in the complaint filed. In recognition of 

PRASA’s financial challenges, many of the provisions of the agreement have been tailored to focus on the 

most critical problems first, giving more time to address the less critical problems over time. 

• The CWA combined sewer overflows (CSOs) settlement in United States, et al. v. Delaware County 

Regional Water Quality Control Authority (DELCORA) (E.D. Pa.), once fully implemented, will help 

reduce the direct exposure of low-income and minority populations in the Philadelphia service area to 

raw sewage and other contaminants. DELCORA’s wastewater facilities serve approximately 500,000 

people in the greater Philadelphia area, including many low-income communities. The violations 

involved DELCORA’s failure to develop a Long Term Control Plan to manage its CSOs. The citizens of 

Chester, Pennsylvania have historically borne a disproportionate share of the negative environmental 

consequences from DELCORA’s combined sewer overflows. 

The settlement, approved by the court on November 13, 2015, addresses longstanding problems with 

DELCORA’s combined sewer system, which when inundated with stormwater discharges raw sewage, 

industrial waste, nitrogen, phosphorus and polluted stormwater into Chester Creek, Ridley Creek, and 

the Delaware River. According to DELCORA, the volume of combined sewage that overflows from the 

system is approximately 739 million gallons annually. 

Exposure to raw sewage can cause illnesses ranging in severity from mild gastroenteritis, causing 

stomach cramps and diarrhea, to life-threatening ailments such as cholera, dysentery, infectious 

hepatitis and severe gastroenteritis. Exposure to untreated sewage, therefore, presents a serious health 

risk to those who may come into contact with it. Groups facing greater risks include children, the elderly, 

immune-compromised groups and pregnant women. 

The settlement requires DELCORA to develop and implement a Long Term Control Plan to control 

combined sewer overflows. To address the environmental justice concerns, DELCORA is required to 

submit to EPA a Public Participation Plan that describes how the Long Term Control Plan process 

will: (i) address the impact of DELCORA’s combined sewer overflows and Long Term Control Plan 

on populations with environmental justice concerns, (ii) seek input from communities that may have 

historically borne a disproportionate share of the negative environmental consequences resulting from 

DELCORA’s combined sewer overflows, and (iii) ensure that the Long Term Control Plan and selected 

combined sewer overflow control measures will not impose a disproportionate share of negative 

environmental consequences on such communities in the future. Therefore, an opportunity to address 

historical environmental justice issues is built into the Long Term Control Plan process. The Long Term 

Control Plan is subject to EPA oversight and approval. 

66 | environmental justice
 
 

Based on information submitted by DELCORA, EPA estimates that DELCORA could spend as much 

as $200 million to implement an overflow control plan that complies with the terms of the CWA. Once 

the specific pollution control measures are selected and approved, the settlement requires DELCORA 

to implement the plan as quickly as possible, with a 20-year deadline from when the settlement is filed 

in court to complete the necessary controls. DELCORA is also required to pay a $1.375 million penalty 

for prior violations, to be split between the United States and the Commonwealth of Pennsylvania, a 

co-plaintiff in this case. 

The settlement also requires DELCORA to notify the public of CSO discharges using a visual notification system, including warning lights and flags at CSO outfalls, where a sewer empties into local 

waterways. 

• On June 30, 2015, the court approved a CWA settlement in United States and the State of Mississippi 

v. Cal-Maine Foods, Inc. (S.D. Miss.) to bring Cal-Maine Foods, Inc. into compliance with state and 

federal laws and cut nutrient pollution discharges into area waterways. The United States, in coordination with our state partner Mississippi, negotiated 

the settlement, which resolves CWA violations at 

Cal-Maine’s Edwards, Mississippi concentrated animal 

feeding operation. That facility houses more than two 

million chickens. The company discharged pollutants 

into a creek without permit authorization and also 

illegally applied nitrogen-laden wastewater in violation 

of its permit. The facility is located in a community 

disproportionately affected by pollution. Nearly half 

of the households have an annual income of less than 

$25,000. 

Under the settlement, the facility will comply with 

its discharge permit, significantly reducing nutrient 

pollution from nitrogen and phosphorus, and improve 

environmental data collection and reporting practices. Once the pollution controls required by the 

settlement are implemented, EPA estimates Cal-Maine will cut discharges of nitrogen by 89,000 

pounds and phosphorous by 20,000 pounds per year. EPA estimates it will cost Cal-Maine approximately $418,000 to implement the settlement requirements and bring the Edwards, Mississippi, facility 

into compliance with state and federal clean water laws. 

Under the settlement, Cal-Maine is already developing and implementing procedures for its egg 

production and land application areas to achieve compliance with its permit, an employee training 

policy and improved recordkeeping and reporting practices. The procedures were submitted to and 

reviewed and approved by EPA and Mississippi officials over the course of settlement negotiations. 

Cal-Maine has begun implementing these procedures and must comply with all the terms of the 

settlement by April 30, 2016. Cal-Maine was also required to pay a $475,000 penalty to be divided 

evenly between the United States and Mississippi. 

Incorporating Environmental Justice in the Defense of Agency Action 

More than half of ENRD’s work consists of defending the environmental or natural resources actions 

of federal agencies. The Division has worked to incorporate the principles of environmental justice into 

our handling of these cases as well. ENRD works closely with agencies to identify defensive cases that 

present environmental justice concerns, even where the complaint may not clearly assert a specific 

claim that the agency failed to address environmental justice issues adequately. More broadly, in the 

Chicken House, Wikipedia photo 

environmental justice | 67
 
 

context of litigation, the Division actively 

evaluates the depth of the agency’s analysis 

and handling of environmental justice issues 

as well as the completeness of the decisionmaking effort in addressing environmental 

justice concerns. Indeed, rather than merely 

defending agency analysis of environmental 

justice issues and decision-making, ENRD 

implements the environmental justice 

Executive Order by proactively looking for 

ways to address concerns of environmental 

justice communities outside of the traditional 

litigation context. 

• On May 1, 2015, the Department of Justice 

announced that the United States will pay 

$13.2 million for cleanup evaluations of 16 

Navajo Nation, Wikipedia photo abandoned uranium mines across Navajo 

Nation lands. Abandoned uranium mines on 

Navajo lands is one of the most severe environmental justice problems in Indian Country. Land near 

Navajo homes, roads, grazing lands and cultural areas has been contaminated by abandoned mines. 

The Navajo Nation encompasses more than 27,000 square miles within Utah, New Mexico and Arizona 

in the Four Corners area. The unique geology of the region makes the Navajo Nation rich in uranium, 

a radioactive ore in high demand after the development of atomic power and weapons at the close of 

World War II. Approximately four million tons of uranium ore were extracted during mining operations 

within the Navajo Nation from 1944 to 1986. The federal government, through the Atomic Energy 

Commission, was the sole purchaser of uranium until 1966, when commercial sales of uranium began. 

The Atomic Energy Commission continued to purchase ore until 1970. The last uranium mine on the 

Navajo Nation shut down in 1986. Many Navajo people worked in and near the mines, often living and 

raising families in close proximity to the mines and mills. In November 2013, the Attorney General of 

the Navajo Nation sent a letter to the Assistant Attorney General of ENRD articulating alleged claims 

under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against 

the United States pertaining to hundreds of abandoned uranium mines on the Navajo Nation. 

Since 2008, a number of federal agencies have been collaborating to address uranium contamination 

on the Navajo Nation, investing more than $100 million to address such abandoned mines. As part of 

the Justice Department’s increased focus on environmental and health concerns in Indian country, a 

highly collaborative team of attorneys from the Environmental Defense Section and Environmental 

Environment Section, in partnership with the EPA, Interior, and the Department of Energy, worked 

diligently with their Navajo counterparts to reach the settlement announced on May 1. This settlement 

resolves the claims of the Navajo Nation pertaining to costs of evaluations at 16 priority mines for 

which no viable responsible private party has been identified. Priority mines are those that pose the 

most significant hazards. As such, the settlement agreement puts these mines, many near Navajo 

communities, on the path to cleanup. 

Furthermore, ENRD continues to work in collaboration with its sister federal agencies to address the 

legacy of uranium mining on Navajo lands. 

68 | environmental justice
 
 

ENFORCING THE NATION’S
 

CRIMINAL POLLUTION AND 


WILDLIFE LAWS
 

ECS, in partnership with U.S. 

Attorneys’ Offices and a host of 

federal investigative agencies, 

is responsible for prosecuting 

criminal violations that arise 

under a wide variety of environmental statutes. As described 

below, ECS’s work this year 

included several successful 

multi-district, as well as trans-national, prosecutions. ECS’s work 

can be broken into two broad 

categories: enforcement of the 

laws designed to protect the 

environment, public, and workers 

from unlawful pollution; and 

enforcement of laws designed 

to protect wild animals and 

plants from unlawful poaching, 

harvesting, profi teering, and 

other harms. In addition, ECS’s prosecutions may include general criminal violations such as 

conspiracy, false statements, obstruction of justice, smuggling, and wire fraud. 

Protecting the Environment, Public Health, and Worker Safety 

• On January 21, 2015, in the case of United States v. Mark Sawyer, et al. (E.D. Tenn.), five 

defendants, Mark Sawyer, Newell Lynn Smith, Eric Gruenberg, and Armida and Milto Di 

Santi, pleaded guilty to conspiracy to violate the Clean Air Act. Defendants were owners and 

managers of A&E Salvage, a company that had purchased the Liberty Fibers Plant in Hamblen 

County, Tennessee, in order to salvage metals which remained in the plant after it closed. The 

Liberty Fibers buildings contained extensive amounts of asbestos-containing materials in the 

form of pipe wrap and insulation. Between October 2006 and July 2008, the defendants, who 

owned the building and supervised the salvage and demolition work, conspired to violate the 

Oiled Kemps Ridley Turtle, NOAA photo 

enforcing criminal pollution and wildlife laws | 69
 
 

A river in North Carolina, FWS photo 

L.V. Sutton Steam Station, Google Maps photo 

70 | enforcing criminal pollution and wildlife laws
 
“work practice standards” mandated by the Clean Air Act for the safe removal, containment, 

and disposal of asbestos. The violations included failing to provide the workers hired to remove 

materials from the building with adequate personal protective equipment. 

At sentencing, the court concluded that evidence presented by the government proved that the 

exposures of the A&E workers to asbestos resulted in a substantial likelihood they would suffer 

death or serious bodily injury. Sawyer will serve five years’ imprisonment; Smith, 37 months’ 

imprisonment; Gruenberg, 28 months’ imprisonment; and the Di Santis, six months’ imprisonment, followed by six months’ home confinement and 150 hours of community service. All 

defendants are jointly and severally responsible for $10.3 million in restitution to EPA for costs 

associated with cleaning up the asbestos. 

• In United States v. Jones (E.D. Wisc.), ECS obtained a guilty plea for violations of the 

Pipeline Safety Act and submitting a false statement. Defendant Randy Jones was a corrosion 

coordinator for a pipeline owned and operated by the Shell Pipeline Co., which delivered 

aviation jet fuel to Mitchell Airport in Milwaukee. From January through December 2011, Jones 

failed to conduct required bi-monthly and annual safety testing to ensure that the pipeline had 

adequate protection against corrosion. When advised of an upcoming audit by the PHMSA, 

Jones entered false data into a database used to submit compliance reports to PHMSA. 

In January 2012, the pipeline developed a leak. Jet fuel was found in a nearby creek and 

eventually reached the surface of airport property, melting asphalt and fi lling underground 

drainage pipes and culverts. On April 30, 2015, Jones pleaded guilty to violating the Pipeline 

Safety Act and submitting a false statement. Jones was sentenced to five years’ probation and 

ordered to pay $19,337,785 in restitution to Shell Pipeline Co. for emergency response and 

remediation costs. 

• In United States v. Spatig (D. Idaho), ECS obtained a conviction for violations of the storage 

and disposal provisions of the Resource Conservation and Recovery Act. Defendant Max Spatig 

operated a concrete finishing business known as M&S Enterprises. In June 2010, officials 

discovered approximately 3,400 containers of hazardous paint waste at his residence, some 

in heavily corroded and leaking containers. Investigators also found containers of corrosive 

wastes, including hydrochloric acid. The ensuing EPA cleanup cost nearly $500,000, and was 

the second cleanup Spatig had caused. The State of Idaho Department of Environmental Quality 

conducted a prior cleanup in 2005 at a different property owned by Spatig, in southeast Idaho. 

Spatig was held in custody for nearly nine months prior to trial due to repeated violations of his 

conditions of release. 

PROSECUTING ENVIRONMENTAL CRIMES 

In 2015, ENRD continued in the criminal context to ensure that all communities enjoy the benefit of a fair 

and even-handed application of the law and that affected communities have a meaningful opportunity for 

input in the consideration of appropriate remedies. 

For example, United States v. Duke Energy Business Services, LLC, et al. (E.D.N.C., M.D.N.C., W.D.N.C.) 

was a multi-district prosecution of three subsidiaries of North Carolina-based Duke Energy Corporation, 

the largest utility in the United States, for violations of the CWA. On May 14, 2015, the three responsible 

subsidiaries pleaded guilty to nine violations of the CWA at five North Carolina facilities and were 

sentenced to pay $68 million in criminal fines, spend $34 million on environmental projects, and serve a 

enforcing criminal pollution and wildlife laws | 71
 
five-year term of probation. Duke Energy Corporation, as the holding company, has guaranteed both the 

payment of the monetary penalties and the performance of the nationwide and statewide environmental 

compliance plans. 

The investigation stemmed from a massive coal ash spill from Duke’s Dan River Steam Station, a 

coal-fired power plant, into the Dan River near Eden, North Carolina, in February 2014. Additional 

violations were discovered as the scope of the investigation broadened to encompass the companies’ 

other facilities. These included unlawfully failing to maintain equipment at the Dan River and Cape Fear 

facilities and unlawfully discharging coal ash and/or coal ash wastewater from coal ash impoundments 

at the Dan River, Asheville, H.F. Lee, and Riverbend facilities. On May 14, 2015, the three responsible 

subsidiaries pleaded guilty to nine violations of the CWA at five North Carolina facilities and were 

sentenced to pay $68 million in criminal fines, spend $34 million on environmental projects, and serve 

a five-year term of probation. Duke Energy Corporation, as the holding company, has guaranteed both 

the payment of the monetary penalties and the performance of the nationwide and statewide environmental compliance plans. 

Under the plea agreements, the three subsidiaries–Duke Energy Business Services, LLC, Duke Energy 

Carolinas, LLC, and Duke Energy Progress, Inc.–must certify that they have reserved suffi cient assets 

to meet legal obligations with respect to their coal ash impoundments in North Carolina, estimated 

to be approximately $3.4 billion. The subsidiaries will make a combined $24 million community 

service payment to the National Fish and Wildlife Foundation to benefit the riparian environment and 

ecosystems of North Carolina and Virginia. They also will provide $10 million to an authorized wetlands 

mitigation bank for the purchase of wetlands or riparian lands to offset the long-term environmental 

impacts of the coal ash basins in North Carolina. In addition, they each will pay restitution to federal, 

state, and local governments that responded to the Dan River spill and are subject to a compensation 

claims process for local governments whose drinking water treatment systems may have been affected 

by bromide discharges from certain defendant-owned facilities. Approximately 108 million tons of 

coal ash are currently held in coal ash impoundments owned and operated by the defendants in North 

Carolina. The plea agreements require the defendants to excavate and close coal ash impoundments 

at the subsidiaries’ Asheville, Dan River, Riverbend and Sutton facilities, in compliance with state and 

federal law. 

All of Duke’s subsidiaries, which operate 18 facilities in five states, including 14 in North Carolina, 

are required to develop and implement environmental compliance programs to be monitored by an 

independent court-appointed monitor. These facilities will be regularly and independently audited to 

ensure compliance with environmental laws and programs, the results of which will be made available 

to the public. 

Key provisions of the plea agreement address the environmental justice effects of the violation. For 

example, one of Duke Energy’s North Carolina facilities, the L.V. Sutton Steam Station owned and 

operated by Duke Energy Progress, Inc., is located near the community of Flemington, just outside 

Wilmington, North Carolina. Flemington, a small low-income neighborhood, has had a history of waterquality problems with its drinking water supply, dating back to contamination from a landfill in 1978. 

New supply wells constructed after 1978 are located down-gradient from the Sutton facility’s coal ash 

impoundments. In 2013, the local public utility determined that contaminants, including boron, from 

the coal ash impoundments at Sutton were entering the drinking water supply. Duke Energy Progress 

had previously entered into an agreement with the public utility to share costs for extending a municipal 

water line to the Flemington community. While not included as one of the charges in the criminal 

information, as part of the plea agreement, Duke Energy Progress agreed to pay the public utility “for 

all costs, whenever incurred, associated with the extension of the Flemington water line, which was 

necessary to ensure that the community had clean drinking water.” 

72 | enforcing criminal pollution and wildlife laws
 
 

The plea agreements also contain provisions designed to address the impacts of the Defendants’ conduct 

on communities throughout North Carolina. Those provisions include: 

• A Claims Process, administered by the court-appointed monitor, for communities whose drinking 

water has been adversely affected by increased discharges of bromide from “scrubber” technologies 

installed at Duke Energy facilities, and 

• Community Service Payments, administered by the National Fish and Wildlife Foundation, for efforts 

to benefit, preserve, restore, and improve water resources in affected areas of North Carolina and 

Virginia through projects involving monitoring, study, restoration, and preservation of fish, wildlife, and 

plant resources; monitoring, study, clean-up, remediation, sampling, and analysis of pollution and other 

threats to the riparian environment and ecosystem; research, study, planning, repair, maintenance, 

education, and public outreach relating to the riparian environment and ecosystem; environmental 

education and training relating to the protection and preservation of riparian resources; and the 

protection and support of public drinking water systems. 

On June 8, 2015, a jury found Spatig guilty of a Resource Conservation and Recovery Act storage 

and disposal violation. On December 31, 2015, Spatig was sentenced to 46 months’ imprisonment and three years’ supervised release and ordered to pay $498,652 in restitution. 

Renewable Fuel Fraud 

Through the Energy Policy Act of 

2005 and the Energy Independence 

and Security Act of 2007, Congress 

obligated fuel producers and importers 

to produce specific annual volumes 

of renewable fuel. Accordingly, EPA 

created Renewable Fuel Standards, 

and established Renewable Identification Numbers (RINs) to track these 

volumes of fuel. EPA also developed 

an EPA-moderated transaction system 

(EMTS) to facilitate RIN trading. By 

buying and retiring RINs, petroleum 

producers and importers can meet 

their renewable fuel obligations. They 

usually purchase the RINs from other, specialized, renewable fuel businesses, often through 

brokers. There is a financial market for RINs and a single RIN is often worth a dollar or more. 

Typically, petroleum producers and importers buy batches of several thousand RINs at a time, 

for thousands of dollars per batch. 

Biodiesel is one of the most important renewable fuels covered by the RFS. Congress also 

established tax credits for people who blend biodiesel with petroleum diesel. The credit is 

designed to incentivize biodiesel production: blending (which can involve less than one percent 

petroleum diesel) is the event that triggers payment of the subsidy. 

Renewable Fuel, Nebraska.gov photo 

enforcing criminal pollution and wildlife laws | 73
 
Criminals recognized that it was possible to generate RINs without producing the volume of 

renewable fuel that a RIN represents. They also recognized that it was possible to obtain IRS’s 

blender’s tax credit for biodiesel that had already been blended and used to obtain the credit. 

ECS, in partnership with U.S. Attorneys’ Offices and criminal investigators from EPA, the 

Secret Service, IRS, DOT and FBI successfully prosecuted several individuals and corporations 

involved in such fraud in 2015. 

• In August of 2015, in United States v. William Bradley (S.D. Ohio), ECS obtained guilty pleas 

for conspiracy to commit wire fraud, fraud, and a violation of the Clean Air Act that resulted 

in prison sentences and a judgment for restitution in the amount of $23,347,561. Defendants 

Dean and Brenda Daniels, William Bradley and Ricky Smith were all employees and offi cers of 

New Energy Fuels, a business in Waller, Texas, that claimed to process animal fats and vegetable 

oils into biodiesel. The defendants subsequently relocated to Chieftain Biofuels LLC in Logan, 

Ohio. The defendants would purchase low-grade feedstock and perform minimal processing 

to produce a low-grade fuel. Defendants then falsely represented to the EPA that they had 

produced biodiesel, generated fraudulent biodiesel RINs, and sold them to various third parties. 

The defendants also made false claims to the IRS in order to obtain the biodiesel tax credit 

that they were not eligible to receive. In total, the defendants sold over $15 million worth of 

fraudulent RINs and falsely claimed over $7 million in tax credits. 

On August 27, 2015, each of the defendants pleaded guilty to conspiracy to commit wire fraud 

and to defraud the United States. Dean Daniels also pleaded guilty to transporting hazardous 

material without the required placards in violation of the Clean Air Act. Dean Daniels was 

sentenced to 63 months’ incarceration; William Bradley to 51 months’ incarceration; Richard 

Smith to 41 months’ incarceration; and Brenda Daniels to 366 days’ incarceration. Each 

defendant was also sentenced to three years’ supervised release and held jointly and severally 

liable for $23,347,561 in restitution. 

• In United States v. James Jariv (D. Nev.), ECS also obtained guilty pleas three defendants for 

charges related to fraudulent RIN trading that resulted in an order for restitution in the amount 

of $6,345,831. From 2009 until 2013, defendants James Jariv and Nathan Stoliar operated and 

controlled City Farm Biofuel, located in Vancouver, British Columbia, Canada. The company 

claimed to produce biodiesel made from feedstocks such as animal fat and vegetable oils. Jariv 

and Stoliar also formed a company called Canada Feedstock Supply that was supposed to supply 

City Farm with feedstocks for manufacturing biodiesel. Jariv also operated and controlled 

Global E Marketing (GEM), based in Las Vegas, Nevada. Alex Jariv, son of James, worked for 

and on behalf of these companies. The three defendants claimed to produce biodiesel at the 

City Farm facility and to import and sell biodiesel to GEM. In reality, no biodiesel produced at 

City Farm was ever imported and sold to GEM. Instead, Jariv and Stoliar used GEM to claim to 

blend the biodiesel with petroleum diesel, allowing them to fraudulently generate and sell RINs 

separately from any actual biodiesel. Using this scheme, defendants falsely claimed to import, 

purchase, and blend more than 4.2 million gallons of biodiesel. They then sold the RINs, fraudulently generating more than $7 million. 

Defendants also exported to Canada significant amounts of biodiesel bought in the United 

States, without acquiring and providing the RINs required for exporting the fuel. As a result, 

they failed to make mandatory payments worth $34 million to the RINs program, keeping 

74 | enforcing criminal pollution and wildlife laws 
 

the money for themselves. The defendants conspired to launder the proceeds of their crimes, 

utilizing banks in Canada, Nevada, and Australia, and complex fi nancial transactions. 

Stoliar pleaded guilty to conspiracy to defraud the government and to launder money, and wire 

fraud, and was sentenced on April 9, 2015, to two years’ imprisonment, three years’ supervised 

release, and ordered to pay more than $1.4 million in restitution and to forfeit $4 million in 

cash. James Jariv pleaded guilty to conspiracy to defraud the government and to launder money, 

and to making false statements. On August 5, 2015, he was sentenced to ten years’ imprisonment, three years’ supervised release, and was required to forfeit $4 million in cash and other 

assets. Alex Jariv pleaded guilty to conspiracy to defraud the government, and making false 

statements. He was sentenced on September 25, 2015, to 30 months’ imprisonment, three years’ 

supervised release and was ordered to forfeit $491,061 in previously seized cash, an SUV, real 

estate and the contents of several bank accounts in the United States and abroad that were some 

of his proceeds of the conspiracy. The court held all three defendants jointly and severally liable 

for $6,345,831 in restitution. 

Fighting Pollution from Ocean-Going Vessels 

Since the late 1990’s, the Division 

has worked to stem the tide of 

intentional discharges of pollutants 

from ocean-going vessels. At the 

end of fiscal year 2015, criminal 

penalties imposed in these cases 

totaled more than $359 million in 

fines and more than 30 years of 

confinement. 

• During 2012, the drill ship Noble 

Discoverer and the drilling unit 

Kulluk each made several U.S. port 

calls in Washington and Alaska. The 

Kulluk ran aground off the coast 

of Unalaska, Alaska, when it broke 

free from its tow in bad weather. 

The Discoverer was dead-ship towed 

from Dutch Harbor to Seward due to 

failures of its main engine and other equipment. In addition, bilge and wastewater accumulated 

in the engine room spaces of the Discoverer. To remove the wastewater, Noble devised a 

makeshift barrel and pump system to discharge accumulated wastewater directly overboard. 

To conceal this from the Coast Guard, Noble knowingly made false entries and failed to record 

its collection, transfer, storage, and disposal of waste oil and machinery space bilge water in the 

vessel’s oil record books in violation of the Act to Prevent Pollution from Ships. Noble also made 

modifications to the vessel’s new oily waste separator system after the system passed inspection 

by the Classification Society and the Coast Guard. The company did not inform authorities of 

Trident Navigator, DOJ photo 

enforcing criminal pollution and wildlife laws | 75
 
 

the modifications and did not receive an International Oil Pollution Prevention certifi cate that 

documented the unapproved modifications. 

Noble pumped oily skimmer tank fluids and deck water with a sheen into several ballast tanks 

on the Discoverer. The company then discharged those ballast tanks directly overboard. By 

design, water ballast tanks should only contain uncontaminated seawater. The Nonindigenous 

Aquatic Nuisance, Prevention and Control Act (NANPCA) requires vessels to maintain accurate 

records reflecting the source of ballast water in the ballast water tanks, discharges from the 

tanks, and the total volume of ballast water onboard. Noble failed to record the transfers to the 

ballast tanks and the subsequent discharges in the ballast log, in violation of NANPCA. 

During 2012, the Discoverer experienced numerous problems with its main propulsion system, 

including its main engine and its propeller shaft, resulting in engine shut-downs, equipment 

failures, and unsafe conditions. At times, problems with the ship’s main engine created high 

levels of exhaust in the engine room, multiple sources of fuel and oil leaks, and backfi res, none 

of which were reported to authorities. Noble failed to notify the Coast Guard of these hazardous 

conditions in violation of the Ports and Waterways Safety Act (PWSA). 

On December 19, 2014, in United 

States v. Noble Drilling (D. Ak.), upon 

pleading guilty to five APPS violations, 

one violation of the NANPCA, and 

one violation of the PWSA, Noble was 

sentenced to pay $12.2 million in fines 

and community service payments. The 

community service payments included 

$2.5 million to the International Arctic 

Research Center, $1 million to the 

National Fish and Wildlife Foundation 

Alaskan Arctic Fund, and $500,000 to 

the Arctic Research Consortium of the 

United States. 

Noble was also placed on probation for 

four years, during which time it must 

implement an environmental compliance plan. In addition, Noble’s parent company, Noble 

Corporation LLC, headquartered in London, England, agreed to implement an environmental 

management system for all mobile offshore drilling units it owns or operates worldwide. 

Protecting Wildlife through Enforcement 

Federal criminal enforcement of wildlife protection statutes is a critical factor in deterring the 

illegal killing and commercialization of wildlife, fish, and plants, and augments the wildlife 

protection efforts of states, tribes, and foreign governments. Criminal prosecutions for these 

violations focus on both individual and corporate perpetrators, and result in fi nes, imprisonment, community service, and restitution to help mitigate the harm caused by the violations, as 

well as forfeiture of the illicit profits and instrumentalities used to commit the crimes. 

Noble Drilling Unit, EPA photo 

76 | enforcing criminal pollution and wildlife laws
 
Rhino Horns, FWS photo 

Operation Crash 

“Operation Crash” is an ongoing nationwide effort led 

by FWS and ENRD in conjunction with U.S. Attorneys’ 

Offices to investigate and prosecute those involved in 

the black market trade of rhinoceros horns and other 

protected species. (A “crash” is a herd of rhinoceroses.) 

All rhinoceros species are protected under United States 

and international law, and the black rhinoceros is listed as 

endangered under the ESA. Several major dealers in the 

illegal rhino horn trade were successfully prosecuted in 

2015. 

• Between January 2011 and March 2013, a U.S. auction 

house, Elite Decorative Arts, and its proprietor, Christopher 

Hayes, participated in a far-reaching conspiracy in which 

they helped smugglers traffic in endangered and protected 

species in interstate and foreign commerce, and falsified 

records and shipping documents related to the wildlife 

purchases. Hayes and Elite Decorative Arts sold items made 

from rhinoceros horn, elephant ivory, and coral to an antiques dealer in Canada, who they then 

directed to a local shipper that agreed to mail the items in Canada without required permits. 

They also marketed raw rhinoceros horns, which they believed were from a black rhinoceros, 

to a person in Texas. Hayes and Elite Decorative Arts pleaded guilty to conspiracy to violate 

the Lacey Act and illegal wildlife trafficking. On May 20, 2015, in United States v. Elite Estate 

Buyers Inc. (S.D. Fla.), Hayes was sentenced to 36 months’ imprisonment, followed by two 

years’ supervised release. Elite Decorative Arts was ordered to pay a $1.5 million fine to the 

Lacey Act reward fund. The court also banned the corporation from engaging in wildlife trading 

during a five-year term of probation. 

• Of the six black rhino horns sold by Hayes and Elite Decorative Arts, two were sold for 

$80,500 to Ning Qiu, a Texas resident involved in smuggling the horns to China. In United 

States v. Ning Qiu (E.D. Tex.), Qiu pleaded guilty to being part of a broader conspiracy to 

smuggle rhinoceros horns and items made therefrom to Zhifei Li, the owner of an antique 

business in China and the ringleader of a criminal enterprise that smuggled $4.5 million in 

rhinoceros horns and objects made from horn from the United States to China. On May 19, 

2015, Qiu was sentenced to serve 25 months’ imprisonment and to pay a $150,000 fine. 

• Xiao Ju Guan (also known as Tony Guan) is a Canadian citizen and the owner of Bao Antiques, 

a company based in Canada and Hong Kong. In United States v. Xiao Ju Guan (S.D.N.Y), Guan 

and his co-conspirators smuggled into Canada more than $500,000 worth of black rhinoceros 

horns and sculptures made from elephant ivory and coral from various U.S. auction houses. The 

items were transported by driving them across the border or by having packages mailed directly 

to Canada with false paperwork and without the required declaration or permits. Guan was 

arrested in May 2014 after purchasing two black rhinoceros horns from undercover FWS agents 

for $45,000. During the search of Guan’s business, Canadian law enforcement also discovered 

illegal narcotics, including approximately 50,000 ecstasy pills. 

enforcing criminal pollution and wildlife laws | 77
 
 

Guan pleaded guilty to smuggling endangered black rhinoceros horns from the United States 

to Canada. He was sentenced on March 25, 2015, to 30 months’ imprisonment and forfeiture of 

wildlife items made from elephant ivory and coral seized during a search of his business. 

Protecting Fisheries 

• In United States v. Michael Hayden, 

et al. (D. Md.), Defendants Michael 

Hayden, William Lednum, Kent Sadler, 

and Lawrence “Daniel” Murphy poached 

hundreds of thousands of pounds of 

striped bass from the Chesapeake Bay, 

in violation of the Lacey Act. From 

2007 to 2011, the defendants engaged 

in a scheme during which they falsified 

paperwork related to their harvests and 

submitted the falsified documents to the 

State of Maryland. The State, in turn, 

unwittingly provided false information to 

numerous federal and interstate agencies 

responsible for setting harvest levels along 

the Eastern Seaboard. 

Sadler, Hayden, and Lednum pleaded guilty to conspiring to violate the Lacey Act and to defraud 

the United States through the illegal harvesting and interstate sale of striped bass. Hayden was 

sentenced to 18 months’ imprisonment, followed by six months’ home confinement, three years’ 

supervised release, and a $40,000 fine. Lednum was sentenced to serve 12 months and one 

day imprisonment, followed by six months’ home confinement, and a $40,000 fine. Sadler was 

sentenced to 30 days’ confinement in a county detention center, three years’ supervised release, 

$5,000 fine, and $20,000 restitution. The court held Hayden jointly and severally liable with 

Lednum for payment of $498,293 in restitution. Murphy pleaded guilty to attempted Lacey Act 

trafficking and was sentenced to three years’ probation, a $1,000 fine, and $30,000 restitution. 

• In 2012, in United States v. Harbor House Seafood Inc., et al. (D.N.J.), a jury found Thomas 

Reeves, Todd Reeves, Shellrock LLC, Mark Bryan, and Harbor House Seafood, Inc., guilty of 

Lacey Act, obstruction, and conspiracy violations. From 2006 until 2010, Todd and Thomas 

Reeves overharvested oysters from the Delaware Bay and created false dealer reports and 

harvest records to hide their activity from conservation officers. The Reeves also created false 

state and Food Drug Administration health records so that regulators would not detect their 

overharvest. The Reeves then sold their illegal oysters through their company, Shellrock LLC, to 

Mark Bryan of Harbor House Seafood, Inc., a wholesale and retail seafood operator in Delaware. 

Kenneth Bailey engaged in similar conduct in 2006 and 2007, overharvesting oysters from 

public oyster beds in the Bay. Bailey then created false dealer reports, harvest reports, and bills 

of lading to conceal his overharvesting from authorities. Bailey and defendant Renee Reeves, an 

employee of Shellrock, pleaded guilty to Lacey Act violations prior to trial. 

In January and February 2015, the five defendants convicted at trial were sentenced. Bryan 

was sentenced to 26 months’ imprisonment, three years’ supervised release, and a $62,500 

fine. Todd Reeves was sentenced to 26 months’ imprisonment, three years’ supervised release, 

Striped Bass, Chesapeake Bay, FWS photo 

78 | enforcing criminal pollution and wildlife laws
 
a $7000 fine, and forfeiture of $34,000 as substitute assets for vessels he used to overharvest 

the oysters. Thomas Reeves was sentenced to 16 months’ imprisonment, three years’ supervised 

release, a $7,000 fine, and forfeiture of $110,000 in substitute assets. Shellrock LLC, was 

sentenced to five years’ probation and a $70,000 fine. Harbor House Seafood, Inc. was 

sentenced to five years’ probation and a $250,000 fine. The court held the fi ve defendants 

jointly and severally liable for $140,000 in restitution to be paid to the State of New Jersey for 

the restoration of oyster beds in the Delaware Bay. Renee Reeves was sentenced to fi ve years’ 

probation and a $2,500 fine. These six defendants were ordered to pay $140,000 in restitution 

to the State of New Jersey (jointly and severally). Bailey was sentenced to six months’ imprisonment, followed by six months’ home confinement, three years’ supervised release, a $10,000 

fine, forfeiture of $54,500 in substitute assets for the vessels that he used to overharvest the 

oysters, and $54,400 in restitution to the State of New Jersey. 

• In United States v. Alan Dresner, et al. (E.D.N.Y.), defendant Alan Dresner was a federal fish 

dealer, and held a NMFS permit to purchase fish directly from commercial fishing vessels. By 

July 2009, Dresner was making regular purchases of fluke (also known as “summer flounder”) 

from Anthony Joseph, who owned and operated a federally-licensed trawler. Dresner learned 

that Joseph was consistently overharvesting fluke by abusing the Federal Research Set-Aside 

Program administered by NOAA, which sets aside a portion of the designated commercial catch 

quota for certain fish to benefi t scientific research related to fisheries. 

In an effort to conceal his overfishing, Joseph submitted logs and reports containing inaccurate 

data. Dresner coordinated with Joseph to submit false dealer reports that matched the false 

data on Joseph’s reports. NMFS relies on these documents to set quotas and implement other 

management measures designed to ensure sustainable fisheries. Between July 2009 and 

December 2011, the defendants falsified fisheries dealer reports with respect to 246,376 pounds 

of overharvested and underreported fluke valued at approximately $625,000. 

Dresner pleaded guilty to wire fraud and on October 22, 2014, was sentenced to four months’ 

imprisonment, three years’ supervised release, a $6,000 fine, and a $15,000 community service 

payment for the enhancement of fluke habitat in the waters of Long Island. He was also ordered 

to pay $510,000 in restitution to the New York State Conservation Fund. Dresner will surrender 

his federal dealer license and is banned from accessing the NMFS SAFIS computer system. 

Joseph pleaded guilty to mail fraud, wire fraud, and falsifi cation of fishing logs and dealer 

reports required to be submitted to NMFS and on November 13, 2015, was sentenced to five 

months’ imprisonment, three years’ supervised release, and $603,000 in restitution. 

enforcing criminal pollution and wildlife laws | 79
 
PROTECTING 


VITAL FEDERAL PROGRAMS 


AND INTERESTS
 

The Division defends client agencies’ regulations, rules, and decisions to allow these agencies 

to fulfill their missions under the nation’s environmental and natural resources laws, thereby 

preserving vital federal programs and interests and protecting the public fisc. The Division also 

responds to congressional and public inquiries, supports capacity building and engagement with 

law enforcement partners domestically and internationally to protect our interests, and participates in litigation as amicus curiae where the government has a stake in the outcome. 

Protecting and Promoting the Development of Transportation Infrastructure 

The Division successfully defended the Federal Highway Administration’s (“FHWA”) final 

environmental impact statement and record of decision to allow short term closure of ramps on 

I-695 in southeast Washington, D.C. relating to rehabilitation and modifications to the Virginia 

Avenue Tunnel—a major commercial freight corridor owned and operated by CSX Transportation, Inc. In Committee of 100 on the Federal City v. Foxx (D.D.C.), the plaintiff alleged 

claims under NEPA and the D.C. Environmental Policy Act statute and moved for a preliminary 

injunction to halt the project. The court denied the motion, finding that plaintiff had failed to 

demonstrate any likelihood of success on its claims, that the balance of harms did not weigh in 

the plaintiff’s favor and that the public interest favored allowing the project to move forward. 

The plaintiff appealed and the D.C. Circuit also rejected the appeal. In response to its failure to 

persuade either court as to the merits of its claims, the plaintiff voluntarily dismissed its lawsuit. 

The Division worked closely on the litigation with the District of Columbia. Project construction 

is well underway, and when completed, will eliminate a major choke point on CSX Transportation’s freight corridor on the east coast. 

In Clean Air Carolina v. North Carolina Department of Transportation (E.D.N.C.), the Division 

successfully defended the FHWA’s decision authorizing the North Carolina Department of 

Transportation to begin constructing the approximately twenty-mile-long Monroe Bypass/ 

Connector southeast of Charlotte, North Carolina. The North Carolina legislature has designated 

this project as a priority for the State of North Carolina. An earlier challenge to the project 

led to a remand of the project to the agencies for further analysis of the Bypass’s impacts on 

future land use and population distribution. Plaintiffs raised a new challenge to the additional 

analysis. The district court granted summary judgment in the agencies’ favor. The Bypass will 

80 | defending federal programs
 
 

 

I-695 in southeast Washington, D.C., Google Maps photo 

Monroe Bypass/Connector southeast of Charlotte, North Carolina, NCDOT photo 

defending federal programs | 81
 
mitigate current congestion and facilitate mobility southeast of Charlotte into the future. The Division 

worked closely with the State of North Carolina in defending this project. 

In September 2015, the Division successfully obtained dismissal of all but one of the plaintiffs’ claims 

in the long-running dispute, Detroit International Bridge Co. v. United States Coast Guard (D.D.C.). 

Plaintiffs own the existing international bridge crossing between Detroit and Windsor, Ontario, a key 

border crossing carrying nearly 25% of all commerce between Canada and the United States. Canada 

and the State of Michigan are seeking to build the New International Trade Crossing (“NITC”), a second 

international bridge, to increase border security and improve trade in the region. Plaintiffs are seeking to 

build a new span of their existing bridge and oppose the future competition from the NITC. The dismissed 

claims include constitutional claims and the challenge to the State Department’s issuance of a presidential 

permit for the new crossing. The Division is continuing to vigorously defend the remaining challenge to 

the State Department’s approval of the Crossing Agreement for the NITC. 

In the long-running litigation in Black Warrior Riverkeeper v. Alabama Department of Transportation (N.D. Ala.), Plaintiffs challenged the initial two mile segment of a decades-long plan to construct the 

Northern Beltline, a 52-mile interstate highway bypassing Birmingham, Alabama. We worked closely with 

the State of Alabama to defend the project, which the State has determined to be critical to area. In ruling 

for the federal agencies on all issues, the court cleared the way for this critical infrastructure project to 

continue, and validated the Agencies’ determination that a full re-analysis of the entire proposed project 

was not required before authorizing construction of each segment. 

In addition to its efforts to defend projects involving direct federal funding, the Division also was involved 

in a case of first impression challenging certain authority granted to the Secretary of the Department of 

Transportation to facilitate privately funded projects. In Indian River County v. Rogoff / Martin County, 

Florida v. U.S. Department of Transportation (D.D.C.), we successfully defeated motions for preliminary 

injunction in these related cases challenging the Under Secretary of Transportation’s December 2014 

decision to approve an application for the allocation of $1.75 billion in private activity bonds to fi nance the 

All Aboard Florida Project, an intercity passenger rail service between Orlando and Miami. The Florida 

Development Finance Corporation issued the bonds, which are being marketed to private investors. 

Plaintiffs allege that DOT was required to prepare a NEPA analysis for the bond allocation and analysis 

under Section 4(f) of the Department of Transportation Act, and engage in the National Historic Act 

Preservation consultation process prior to its decision. Plaintiffs also allege that the allocation of the 

private activity bonds for the project violated Section 142 of the Department of Transportation Act because 

the project is not a qualified transportation project under the statute. The Division is continuing to 

vigorously defend the case. 

Acquiring Property for Public Purposes 

To ensure justice under the Fifth Amendment, ENRD works to ensure that all landowners receive just 

compensation and taxpayers pay no more than market value when federal agencies acquire private 

property for public use. Whenever possible, ENRD works closely with federal agencies to resolve matters 

without having to resort to condemnation. The Division’s prior litigation success at trial and on appeal 

encourages landowners to avoid litigation expenses altogether by entering into direct land sales and leases 

with the client agency once they are informed a case will be sent to ENRD. 

This year, the Division worked closely with the GSA in its efforts to acquire the site of a duty-free store 

directly adjacent to the Land Port of Entry at San Ysidro, California–the busiest land border crossing in the 

Western Hemisphere–where I-5 enters Mexico at Tijuana. Since 2004, GSA has been working to complete 

a $735 million dollar project to re-configure and expand this border crossing to alleviate significant 

82 | defending federal programs 
congestion and delays for goods 

and people. 

To complete the reconfiguration 

and expansion project, GSA needed 

to acquire the site of a duty-free 

store. In this case, the corporate 

landowner initially claimed the 

value of the San Ysidro duty-free 

store to be well in excess of 

$70,000,000 including claims that 

the property could be redeveloped 

for a facility worth hundreds of 

millions of dollars. However, after 

ENRD worked closely with GSA 

on appraisal, title and valuation 

issues and after the landowner 

learned of ENRD’s involvement, 

GSA acquired the property for 

$42,000,000. 

Further, with Land Acquisition Section’s guidance, four potential complex, expensive office space cases 

were resolved by the client agency with valuations in dispute that were conservatively measured at $38 

million for GSA’s Leasehold Portfolio alone. These cases included the negotiation of leasehold extensions 

for the Millennium Challenge Corporation; the Institute of Museum and Library Services, and others 

across the country. 

The Division also resolved multiple condemnations on behalf of the Department of Energy, Bonneville 

Power Administration, for construction of the Big Eddy-Knight Transmission Line in rural Klickitat 

County, Washington. ENRD settled eight condemnation cases in fiscal year 2014, and settled the 

remaining cases in the 2015 fiscal year. These settlements provided closure to the affected landowners 

while saving hundreds of thousands of dollars for the public fisc. 

Additionally, ENRD exercises the Attorney General’s responsibility to oversee review of title for every 

voluntary acquisition of property by the federal government before public money is spent. The Division 

resolved 65 title matters this year, ensuring the federal government acquired good and marketable title 

from the rightful owners. 

Notably, in a complex matter for the United States Holocaust Museum, the Division reviewed title for land 

the Museum sought to acquire for the construction of a Collections and Conservation Center in Prince 

George’s County, Maryland. The Division also reviewed title for the acquisition of land near Waco Texas 

obtained by the National Park Service to establish Waco Mammoth National Monument. The Monument 

was created to preserve the nation’s first and only recorded discovery of a nursery herd of Pleistocene 

mammoths. 

Work with U.S. Attorney’s Offices 

Working jointly with the U.S. Attorney’s Office in San Francisco, ENRD successfully resolved United 

States v. 1.41 Acres and Two Easements Situated in the City of Alameda, et. al. (N.D. Cal.) a condemnation case involving the disposition of an unused portion of the Alameda Federal Center along the San 

Waco Mammoth National Park, NPS photo 

defending federal programs | 83
 
Francisco Bay. As part of the settlement, the GSA sold the unused portion of land to the East Bay Regional 

Park District for over $2 million, allowing the Park District to expand Crown Memorial State Beach. 

This settlement provided GSA the funds necessary to recover the costs it incurred when consolidating 

operations at the Alameda Federal Center and ensured that GSA retained the rights it required in the 

adjoining road serving the remaining federal land. Throughout this case, the Division worked closely and 

collaboratively with the U.S. Attorney’s office, forging a relationship that will serve ENRD well in future 

cases in the Northern District of California. 

The Fair Administration of Justice 

On June 29, 2015, the Ninth Circuit provided the United States with favorable guidance in ruling on two 

petition for writs of mandamus United States v. Walker River Irrigation District (9th Cir.) and United 

States v. Malikowski (9th Cir.) (one filed by the Environment Division; the other by the Tax Division) to 

correct the district court’s refusal to grant the government the ability to appear in these two cases through 

its counsel of choice (here, Justice Department attorneys from Washington, D.C.) except upon a showing 

that the U.S. Attorney’s Office is “incapable” of handling the cases. After the Ninth Circuit called for a 

response to the mandamus petitions, the district judge issued several orders granting motions he had 

either previously denied or delayed acting upon, including the motion by the government to permit its 

counsel of choice to practice before the district court. The government argued that a writ of mandamus 

was still appropriate because the district judge’s persistent practice of excluding out-of-state government 

attorneys from his courtroom was capable of repetition, yet evading review. The panel majority found it 

unnecessary to grant mandamus relief because Judge Jones had admitted the attorneys in these cases 

after the petitions had been filed. However, the majority stated that but for those admissions, mandamus 

would have been granted, and in a 28-page decision provided guidance for Judge Jones to follow, to avoid 

repetition of the same practice. 

Protecting the Public Fisc 

On April 2, 2015, in Hopi Tribe v. United States (Fed. Cir.), the Federal Circuit affirmed the Court of 

Federal Claims’ dismissal of the Hopi Tribe’s breach of trust claim against the United States. The Tribe 

had claimed it is owed money damages for the United States’ alleged breach of a fiduciary duty to build 

water system infrastructure or to deliver drinking water of certain quality to specific locations within 

the Hopi Reservation. The Tribe asserted that this fiduciary duty arose from the Executive Order of 

1882 establishing the Reservation and a 1958 Act, which states that reservation lands are held in trust. 

The Federal Circuit rejected the Tribe’s claim. The court explained that to establish jurisdiction under 

the Indian Tucker Act, the Tribe must first identify a substantive source of law that established specific 

fiduciary duties, but that the bare trust language of the 1958 Act is insufficient because it does not 

establish any particular fiduciary duty to manage water resources. The court rejected the Tribe’s argument 

that fiduciary duties regarding water quality on the reservation can be inferred from the combination 

of the 1958 Act, the Winters doctrine, and the United States’ holding reserved water rights in trust, as 

the Winters doctrine does not make the United States responsible for the quality of water within the 

reservation, independent of any third-party diversion or contamination. Accordingly, even when read 

in light of the Winters doctrine, the Executive Order and the 1958 Act do not create a fiduciary duty to 

construct water system infrastructure to treat water or to build a new system to deliver water from an 

alternative source that meets regulatory drinking water standards. 

Maintaining Operation of Vital Federal Facilities 

In Tennessee Clean Water Network v. Department of Defense and BAE Systems (E.D. Tenn.), ENRD 

successfully settled a CWA citizen suit alleging that the United States Army has violated a NPDES permit 

84 | defending federal programs 
 

by, among other things, discharging Research Department Explosive in excess of the permit limit at the 

Holston Army Ammunition Plant in Kingsport, Tennessee. The plant is owned by the Army and operated 

by BAE Systems, a private contractor. Consistent with an administrative compliance agreement that Army 

and BAE entered into with the Tennessee Department of Environment and Conservation to address the 

same alleged Research Department Explosive exceedances, the consent decree obligates the Army and 

its contractor to comply with the NPDES permit limit for Research Department Explosive by July 2020. 

Successful resolution of the case avoids an outcome that might otherwise have interfered continuing 

operation of the Defense Department’s sole source of Research Department Explosive. 

Enforcing Environmental Law through International Capacity Building and Other Activities 

The Division actively implements a diverse program 

of international activities, frequently in collaboration with partners from other federal agencies. The 

Division’s international activities advance the goal 

of protecting and promoting effective environmental 

enforcement domestically and in other countries and 

support important Administration and Department 

objectives: 

• We successfully prosecute transnational environmental and natural resources crimes that involve 

foreign evidence or foreign assistance, or that rely on 

the violation of underlying foreign statutes. 

• We provide critical training for law enforcement 

partners in other countries to ensure that they 

may work effectively with us in investigating and 

prosecuting transnational environmental crimes. 

• We participate in the development and implementation of trade and investment agreements, 

treaties, international environmental agreements, 

and domestic implementing legislation to ensure that 

they protect and promote effective environmental 

enforcement. 

• We also help to develop and facilitate international 

partnerships and networks that promote effective 

prosecution of transnational environmental crimes. 

In carrying out these objectives in fiscal year 2014, ENRD attorneys implemented capacity building 

workshops and spoke at conferences and meetings in Austria, Bangladesh, Botswana, Brazil, El Salvador, 

France, Germany, Guatemala, Honduras, Hungary, Indonesia, Italy, Japan, Peru, Philippines, Singapore, 

Spain, Thailand, Ukraine, Vietnam, and Zambia. ENRD also participated in trade negotiations, 

conferences, and meetings in Washington, D.C., with officials representing governments and non-governmental organizations from several other countries. 

Division attorneys spoke at and participated in a number of conferences and meetings to promote the 

Administration’s effort to combat wildlife trafficking. Assistant Attorney General John Cruden led the U.S. 

delegation to the Kasane Conference on the Illegal Wildlife Trade in Botswana, attended by representatives 

from more than 30 nations. Participants in the Kasane Conference pledged to establish and strengthen 

partnerships among source, transit, and destination countries to combat the illegal wildlife trade. An 

 Bengal Tiger, Wikipedia photo 

defending federal programs | 85

ENRD attorney served as a technical expert to a meeting of the Roma-Lyon G7 Group in Germany focused 

on internet wildlife trafficking. ENRD attorneys also addressed meetings of several international bodies 

such as the Association of South East Asian Nations Wildlife Enforcement Network in Singapore and the 

Central American Wildlife Enforcement Network in Guatemala. A Division attorney participated in a 

review of Vietnam’s laws on wildlife trafficking sponsored by the Asian Development Bank, and another 

spoke at a tiger poaching workshop for law enforcement personnel in Bangladesh. 

Division attorneys also implemented workshops for law enforcement personnel in Brazil, Peru, and 

Honduras on prosecuting illegal logging cases. One of the illegal logging workshops held in Peru included 

enforcement officials from both Peru and Brazil and focused on cross-border movements of illegal timber 

along the Amazon. Division attorneys participated in joint meetings with European Union counterparts 

to discuss efforts to enforce the Lacey Act and European Union laws to prohibit trade in illegally harvested 

timber and wood products. ENRD also participated in meetings of experts convened by the United 

Nations Office on Drugs and Crimes to develop forensic standards to combat illegal logging. An ENRD 

attorney led the U.S. delegation to two meetings of the Asia Pacific Economic Cooperation forum Experts 

Group on Illegal Logging and Associated Trade, and spoke at a workshop in the Japanese Diet to explain 

the U.S. Lacey Act’s provisions prohibiting trade in illegally-harvested timber. 

Division attorneys also participated as speakers at environmental enforcement training programs at International Law Enforcement Academies in Hungary and El Salvador on prosecuting environmental crimes, 

including pollution cases. And an ENRD attorney spoke at two law enforcement workshops in Indonesia 

on illegal, unreported, and unregulated fishing. 

ENRD participated in negotiations, led by the Office of the U.S. Trade Representative, of the environment 

chapter of the Trans-Pacific Partnership Trade Agreement with 11 countries in Asia and the Americas, and 

the Transatlantic Trade and Investment Partnership Agreement with the European Union. The United 

States has sought to incorporate conservation provisions into these trade agreements to deter trafficking 

in illegally taken flora and fauna. They also participated in meetings relating to implementation of existing 

U.S. trade agreements, such as implementation talks related to the U.S.-Singapore Trade Agreement and 

meetings of the Environmental Affairs Council and Environmental Cooperation Commission under the 

U.S.-Peru Trade Promotion Agreement. 

Division attorneys were also actively involved with the environmental enforcement efforts of INTERPOL. 

In FY 2016 Deborah Harris, ECS Section Chief, was elected to the Advisory Board of INTERPOL’s Environmental Security Sub-Directorate. Additionally, the Pollution Crimes Working Group is now chaired by 

ECS’s Deputy Chief, Joe Poux. 

Defending Agency Discretion 

On December 1, 2014, in WildEarth Guardians v. Jackson (9th Cir.) the Ninth Circuit affi rmed the 

district court’s dismissal of plaintiffs’ Clean Air Act citizen-suit claim against EPA. The plaintiffs in this 

case asserted that when EPA revised the National Ambient Air Quality Standard (NAAQS) for ozone, EPA 

triggered a mandatory duty under Clean Air Act Section 166(a) to promulgate regulations preventing 

the significant deterioration of air quality from ozone. The Division argued that Section 166(a) imposes 

a mandatory duty to promulgate a Prevention of Significant Deterioration regulation only when EPA 

promulgates a NAAQS for a new pollutant, not when EPA revises a standard. The court of appeals held 

that the statutory language in Section 166(a) is ambiguous as to when a mandatory duty arises. This in 

itself was sufficient, the court concluded, to take the claim against the Administrator of the EPA outside the 

scope of the citizen-suit provision. Thus, the district court lacked jurisdiction over plaintiff’s claim and the 

suit was dismissed. 

86 | defending federal programs
 
Klamath River, FWS photo 

On August 21, 2015, in ONRC 

Action v. Bureau of Reclamation 

(9th Cir.), the Ninth Circuit 

affirmed the district court’s grant of 

summary judgment to the Bureau of 

Reclamation. The court of appeals 

rejected ONRC’s claim that the 

CWA required the Bureau to obtain 

an NPDES permit for operation 

of the Klamath Straits Drain, an 

8.5-mile-long engineered channel 

that connects Lower Klamath Lake 

with the Klamath River and carries 

pollutants derived from a number 

of upstream sources. Because the 

Drain had simply restored the 

historic hydrological connection 

between Lower Klamath Lake and the Klamath River, and carried water the majority of which was diverted 

for agricultural use from the Klamath River itself, the court concluded that the waters flowing from the 

Drain are not “meaningfully distinct” from the River itself. The panel found that the Supreme Court’s 

decision in L.A. County Flood District v. Natural Resources Defense Council, 133 S. Ct. 710, 713 (2013), 

clarified that this situation did not involve the “addition” of pollutants to waters of the United States, and 

hence did not involve a “discharge” of pollutants requiring a permit under the terms of the CWA. 

Defending Challenges to EPA Oversight of Water Quality Planning 

In Center for Biological Diversity v. EPA, plaintiff challenged EPA’s 2012 approvals of CWA lists of 

impaired waters submitted by Oregon and Washington. Plaintiff claimed that EPA’s decisions were 

arbitrary and capricious because the states’ lists did not include coastal and estuarine waters impaired by 

low pH (acidification). On February 19, 2015, the court issued a decision granting our motion for summary 

judgment. In its decision, the court accepted that ocean acidification is “a threat to the broad marine 

environment,” but the court ruled that, at the time EPA made its decisions, the Agency was reasonable in 

concluding that there was insufficient record evidence of impairment as to the waters at issue. In reaching 

its findings, the court relied heavily upon the Agency’s decision documents, and granted a high degree of 

deference to EPA’s technical and scientific expertise. 

Defending the CWA Regulatory Program 

In our active CWA defensive practice, ENRD has committed substantial resources to the defense of EPA’s 

Clean Water Rule, defining “waters of the United States” for purposes of federal regulatory jurisdiction 

under the statute. Due to disputes relating to the Act’s jurisdictional provision, we have been defending 

challenges in both the courts of appeals and numerous district courts around the country. As of the end 

of FY 2015, fifteen petitions for review of the rule had been filed and consolidated in the 6th Circuit. We 

are defending fourteen district court complaints; one district court had enjoined application of the rule 

in the thirteen states that had joined as plaintiffs in that case; two district courts had denied preliminary 

injunction motions for lack of jurisdiction; and most others had stayed litigation pending a ruling from the 

Sixth Circuit. 

defending federal programs | 87
 
Responding to Congressional Proposals for Environmental and Natural Resources 

Legislation and Related Matters 

The Division responds to a variety 

of legislative proposals and 

congressional requests, prepares 

Division witnesses to testify 

before congressional committees, 

and drafts legislative proposals, 

including proposals implementing settlements of litigation 

handled by the Division. In fiscal 

year 2015, we continued our work 

in these areas. 

On May 19, 2015, Assistant 

Attorney General John C. Cruden 

appeared with other Department officials at an oversight hearing before the Subcommittee on Regulatory 

Reform, Commercial and Antitrust Law of the House Committee on the Judiciary to discuss the work of 

ENRD and the other Departmental components. 

On April 22, 2015, Assistant Attorney General Cruden appeared before the Subcommittee on Terrorism, 

Nonproliferation, and Trade of the House Committee on Foreign Affairs, to discuss the important topic of 

“Wildlife Poaching and Terrorism: A National Security Challenge,” along with Acting Assistant Secretary 

of State Judith G. Garber and Associate Director of FWS, Robert Dreher. 

The Division asserts water rights claims for the benefit of federally-recognized Indian tribes and their 

members. Settlements are often preferred as the best way to resolve these complex matters, and ENRD 

is actively involved in the settlement of such matters, as well as in the development of federal legislation 

authorizing such settlements once negotiated. One example of federal legislation enacted in fi scal year 

2015 with the assistance of ENRD is H.R. 4924 (enacted into law as Pub. L. No. 113-223), the Bill Williams 

River Water Rights Settlement Act of 2014. 

Responding to Freedom of Information Act Requests 

ENRD continues to be one of the Department’s highest-performing components in its Freedom of 

Information Act (FOIA) work. In fiscal year 2015, the Division completed the processing of over one 

hundred requests, and ended the year with only five backlogged requests and zero backlogged consultations. We increased the number of requests processed by 15% this fiscal year, and were also able to close 

all 6 of our oldest pending requests from 2014. 

The Division continues to explore the use of new technology to expedite processing, increase proactive 

disclosures, and reach out to requesters to ensure efficient processing of their requests. ENRD has also 

worked to expand FOIA training opportunities for ENRD, providing guidance about both legal and 

practical FOIA issues during new attorney orientation and section meetings. Our FOIA staff continues to 

engage with the wider FOIA community as well, serving on a Department-wide FOIA working group to 

develop interagency coordination guidelines and attending FOIA public forums to better understand how 

to serve the requester community. 

Leopard Poaching, DOI photo 

88 | defending federal programs
 
Protecting the Interests of the United States in Litigation Involving Third Parties 

Filing Amicus Briefs 

The Division participates as amicus curiae in cases in which the United States is not a party. Our amicus 

briefs primarily serve to provide information and viewpoints that may be helpful to the judges tasked 

with resolving cases, including by explaining how the resolution of particular legal questions could impact 

important federal programs. By providing such information and viewpoints, the amicus briefs also serve to 

protect the interests of the United States. 

The Division participated as amicus curiae in French v. Starr (9th Cir.), a case that concerns the jurisdiction of the Colorado River Indian Tribal Court over a holdover tenant on tribal land. The tenant argued 

that there is a dispute as to whether the property he leased from the Tribe is within the reservation, which 

was established by an 1865 Act of Congress and subsequently expanded by Executive Order. The tenant 

obtained a permit to occupy from the land from the Bureau of Indian Affairs in 1983, and a decade later 

decided to stop paying rent and challenge tribal jurisdiction over the land. The tenant brought a lawsuit in 

federal district court in Arizona challenging the tribal court’s authority to evict him. The Division fi led an 

amicus brief in support of the Tribe and the important principle that the trust status of tribal lands may 

not be collaterally attacked in this sort of proceeding. The district court ruled in favor of the Tribe, and the 

tenant appealed to the Ninth Circuit. This year, the Division filed an amicus brief in support of the Tribe in 

the Ninth Circuit. 

The Division also participated as amicus curiae in Rose Acre Farms, Inc. v. North Carolina Dep’t of Env’t. 

and Natural Res. (E.D. N.C.). In this case, Rose Acre Farms challenged the State of North Carolina’s 

authority under the CWA to require a NPDES permit for pollutants from concentrated animal feeding 

operations in the form of manure and manure-laden dust that are carried by precipitation to waters of the 

United States. At issue was whether Rose Acre Farms, which had already commenced a case challenging 

North Carolina’s authority in state court, could launch a collateral attack in federal district court. The State 

filed a motion to dismiss, and we filed a brief as amicus curiae in support of the State to emphasize the 

framework of cooperative federalism embodied in the CWA. Our brief argued that based on the language 

and structure of the CWA, permitting decisions made by states authorized to administer the NPDES 

program, which includes North Carolina, may only be challenged in state court. In July 2015, the District 

Court granted the State’s motion to dismiss, relying in large part on the cooperative federalism argument 

made in the U.S. brief. 

Reviewing Citizen Suit Complaints and Settlements 

The Division also conducts the Department’s review of citizen suit complaints and consent judgments 

under the Clean Air Act, the CWA, and the Resource Conservation and Recovery Act. These statutes 

authorize citizens to file suits to enforce many of the statutes’ key provisions, and require that citizen suit 

complaints and consent judgments be served on the Department and EPA. When served with complaints, 

ENRD offers assistance to counsel for the parties. The Division also reviews consent judgments to ensure 

that they comply with the requirements of the relevant statute and are consistent with the statute’s 

purposes. 

Southern Appalachian Mountain Stewards v. A & G Coal Corp. (4th Cir.), is a CWA citizen suit in which 

the Fourth Circuit requested an amicus brief from the United States in an appeal of a district court order 

finding that the defendant could not invoke the permit shield defense. The district court reached this 

conclusion because the defendant’s discharges of selenium were not within the scope of its individual 

CWA permit (issued by Virginia) and had not been disclosed to the permitting authority. ENRD filed 

defending federal programs | 89
 
a brief arguing that the permit shield defense did not apply. In July 2014, the Fourth 

Circuit agreed that the applicable permitting procedures required the applicant to test for 

selenium in its discharges and provide data on selenium discharges to Virginia, and that 

A&G Coal had not done so. Applying its previous Piney Run decision, the Fourth Circuit 

concluded that, as the permit shield defense only encompassed those pollutants disclosed 

to the regulator and A&G Coal disclosed no selenium-related information, the defense was 

inapplicable. The case returned to the trial court and, in December 2015, the district court 

approved the entry of a consent decree that provided that A&G Coal would: (1) apply for 

a permit modification that imposes effluent limits on selenium; (2) pay a civil penalty of 

$28,000; and (3) fund three supplemental environmental projects, for a total of $252,000, 

to help reduce pollution and/or provide public health benefits at sites of historic or recent 

coal mining within the Powell River watershed. Per our request, the recipient of funds for 

the supplemental environmental project agreed to report to us, the court, and the parties 

regarding how funds are spent. 

90 | defending federal programs
 
 

PROMOTING 


NATIONAL SECURITY AND 


MILITARY PREPAREDNESS
 

Supporting the Strategic Border Initiative and Securing the Nation’s Borders 

ENRD continued to litigate land acquisition cases to secure the nation’s borders on behalf of 

the Department of Homeland Security (DHS), and U.S. Customs and Border Protection, as part 

of the expansive southwest Border Fence project. The Division continued to support Assistant 

United States Attorneys in Texas, New Mexico, Arizona, and California on intricate legal and 

valuation issues. 

Notably, the Division assisted the Department of Homeland Security in acquiring land near 

Oñate’s Crossing in El Paso, Texas for construction of a portion of the Border Fence. The 

landowner initially claimed the land was worth 

over $10,000,000, but after extensive negotiations, DHS settled the case for $205,400– 

saving the federal fisc millions of dollars. 

ENRD also filed several cases to acquire the 

land required by the Department of Homeland 

Security to install and maintain surveillance 

towers, access roads, and associated structures 

along the Arizona/Mexico border. Five of 

these cases were resolved this year. 

Promoting National Security and 

Military Readiness 

ENRD also engaged in litigation to expand and 

modernize the military’s presence throughout 

the country. Notably, on behalf of the Navy, ENRD condemned land in San Diego to facilitate 

the redevelopment of the Navy Broadway Complex and land to support flight operations at 

the Navy’s Outlying Landing Field in Evergreen, Alabama. The Division resolved the case in 

Evergreen, Alabama for $475,000–an amount significantly below the landowner’s estimate of 

$3,025,000. 

Mexico Border Medallion, DOJ photo 

promoting national security and military preparedness | 91
 
Arizona Surveillance Tower, DOJ photo 

Tinker Air Force plane landing, DOJ photo 

92 | promoting national security and military preparedness
 
Also, on behalf of the Air Force, the Division assisted with several projects across the United States. 

In Nevada, ENRD condemned land within the existing boundaries of the Nevada Test and Training 

Range. The Division also provided guidance, including title review assistance, to the Air Force 

regarding the potential exercise of eminent domain near Oklahoma City to acquire over 150 acres of 

land adjacent to Tinker Air Force Base. The Air Force intended to use that land for the construction 

of a $400 million maintenance depot facility for aerial tanker aircraft. ENRD also effi ciently resolved 

several cases to acquire land north and south of a runway at Whiteman Air Force Base in Western 

Missouri to increase airplane safety, saving the taxpayers hundreds of thousands of dollars. 

In Okinawa Dugong v. Rumsfeld (N.D. Cal.), American and Japanese conservation groups fi led suit 

alleging that the Navy and Marine Corps failed to comply with the National Historic Preservation Act 

by properly analyzing impacts on a marine mammal population, the endangered Okinawa Dugong, 

from construction of facilities on the island of Okinawa in Japan, as part of the proposed relocation 

of the Futenma Marine Air Station to a coastal area on the island. On February 13, 2015, the court 

granted the government’s motion to dismiss. Plaintiffs’ request for injunctive relief was dismissed 

under the political question doctrine; plaintiffs’ request for declaratory relief was dismissed on grounds 

of standing/redressability. 

Citizens of the Ebey’s Reserve v. U.S. Dep’t of the Navy (W.D. Wash.). Plaintiff challenges, under 

NEPA, the Navy’s operation of its Growler Aircraft at Outlying Field Coupeville at Naval Air Station 

Whidbey Island, requesting preparation of a new EIS. The case has been stayed for almost two years 

while the Navy prepares a new EIS for ongoing and expanded operations. On August 11, 2015, the 

court issued an order denying plaintiff’s motion for a preliminary injunction on the basis that plaintiff 

had failed to meet its burden of showing that a preliminary injunction was warranted under any of 

the four prongs. First, the court found that plaintiff had failed to show a likelihood of success on the 

merits of its claim that “new” information about operations, noise levels, and health impacts required 

preparation of a new EIS. Second, the court found that plaintiff had failed to show irreparable harm 

because many of the declarants’ harms were self-inflicted, and plaintiff’s sixteen-month delay in 

seeking a preliminary injunction indicated a lack of irreparable harm. Third, the court found that the 

balance of the equities tipped in the Navy’s favor because of the Navy’s interest in realistic training. 

Fourth, the court found that the public interest favored denial because of the public’s interest in 

military preparedness and because an injunction would effectively move the flights to a more densely 

populated area. 

Defending the United States’ Energy Agenda 

The Division obtained several key victories in cases involving 

the intersection of energy security issues and natural resources 

issues. 

• In Defenders of Wildlife v. Jewell (C.D. Cal.), the Division 

defended against a challenge to BLM’s right-of-way grants to 

First Solar for the construction of two utility-scale solar projects 

located 40 miles south of Las Vegas along the California-Nevada 

border. After a summary judgment briefing and argument by 

Division attorneys, the court upheld the Project in all respects. 

• In Union Neighbors United v. Jewell (D.D.C.), the Division 

obtained a favorable outcome to ESA and NEPA challenges to 

FWS’s issuance of an Incidental Take Permit for a 100-turbine 

wind project in west-central Ohio for the incidental take of Indiana Bat, FWS photo 

promoting national security and military preparedness | 93
 
 

endangered Indiana bats. The applicant’s habitat conservation plan proposed an operational scheme 

that tailored turbine-blade speeds to various protective levels tied to the seasonal density of bats in 

the area as well as acquiring mitigation habitat for the protection of bats. After extensive summary 

judgment briefing by Division attorneys, the District Court granted summary judgment in favor of the 

United States on all claims. 

• Similarly, in Protect Our Lakes et al. v. U.S. Army Corps of Eng’rs (D. Me.), the Division secured 

an outcome allowing for clean energy project development. Plaintiffs challenged the U.S. Army Corps 

of Engineers’ issuance of a CWA Section 404 permit to Evergreen Wind II, LLC in connection with 

Evergreen’s Oakfield Wind Project Expansion in Aroostook County, Maine. Plaintiffs alleged that, in 

issuing the permit, the Corps violated the ESA and Bald & Golden Eagle Protection Act (“BGEPA”) 

because construction and operation of the project may cause take of ESA-listed Atlantic salmon and 

eagles. After briefing and argument by Division attorneys on cross-motions for summary judgment, 

the court granted United States’ motion in its entirety, thereby allowing the project to proceed. 

• In Vermonters for a Clean Environment v. Madrid (D. Vt.), ENRD successfully defended the 

Deerfield Wind Energy Project authorized on the Green Mountain National Forest. This is the first 

such project on National Forest System lands and is a part of the nation’s renewable energy strategy 

for federal lands. The plaintiffs raised claims under NEPA and the Wilderness Act. In December 2014, 

the court granted judgment to the Forest Service as to all claims, allowing this first of its kind project to 

proceed into the next stages of development. 

• In Colorado River Indian Tribes v. U.S. Department of Interior (C.D. Cal.), a Plaintiff Indian tribe 

brought claims under NEPA, the National Historic Preservation Act, and the FLPMA, challenging the 

BLM’s approval of a right-of-way for the Modified Blythe Solar Project in the California Desert Conservation Area in Southeastern California. The challenged project is one of several fl agship renewable 

energy projects in the California desert. The district court denied plaintiff’s motion for preliminary 

injunction, and on summary judgment ruled in the government’s favor on all claims. Plaintiff elected 

not to appeal. 

• Chesapeake Climate Action Network v. Export-Import Bank (D.D.C.). Plaintiffs, a coalition of 

environmental advocacy groups, challenged the Export-Import Bank’s (“the Bank”) approval of a $90 

million line-of-credit guarantee in support 

of a commercial loan between Xcoal Energy 

Resources (“Xcoal”) and PNC Bank, which 

is being used to fund Xcoal’s mining, transportation, and export of coal from mines in 

Appalachia to foreign end users in Pacific 

Rim nations. In granting summary judgment 

in favor of the Bank, the court concluding 

that plaintiffs lacked standing to challenge 

the guarantee. 

• WildEarth Guardians v. Forest Service; 

WildEarth Guardians v. BLM; Powder River 

Basin Resource Council v. BLM (Wright 

Leasing Challenge) (D. WY.). In these three 

consolidated cases, petitioners challenge 

BLM’s decision approving the competitive sale of four coal leases in Wyoming’s Powder River Basin 

(“PRB”), as well as the Forest Service’s decision consenting to the sale with respect to surface lands 

Powder River Basin, DOI photo 

94 | promoting national security and military preparedness
 
falling under its jurisdiction. The impacts of leasing were analyzed in the Wright Area Final EIS. 

Petitioners claim the Final EIS was deficient for failing to take a hard look at impacts on local air 

quality resulting from mining operations and impacts on the global climate resulting from the 

eventual combustion of mined coal. The court concluded that the agency’s climate change analysis 

and its consideration of local air quality impacts were sufficient, and rejected the mitigation and 

alternatives claims. 

Ivanpah Solar Electric Generating System 

The Ivanpah Solar Power Project, 

the world’s third largest solar power 

project, is located in the Mojave Desert 

in Southern California. The project, 

which went online in 2014, has been 

the subject of ongoing federal lawsuits 

challenging BLM’s grant of rightsof-way across federal lands for construction and operation of the project. 

• On May 5, 2015, in Western 

Watersheds Project v. Salazar (9th 

Cir.), the Ninth Circuit affirmed 

a federal district court’s grant of 

summary judgment in favor of the Ivanpah S

federal defendants, upholding BLM’s 

Environmental Impact Statement against claims that BLM had allegedly not taken a “hard look” 

at the project’s impacts on desert tortoise living in the nearby area nor adequately considered 

the impacts of other projects in the nearby area. The court reaffirmed that agencies need not 

“concentrate” their analysis of impacts “in a single subsection of the EIS,” when the discussion 

“allow[s] for informed decisionmaking and public participation.” The court also affi rmed that 

agencies are not required to “do the impractical” by gathering additional information or analyzing 

impacts of projects when information is not available. 

olar Power Project, DOE photo 

• On May 19, 2015, in La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. 

United States Department of the Interior (9th Cir.), the Ninth Circuit affirmed the district court’s 

grant of summary judgment rejecting plaintiffs’ claim that construction of the Ivanpah Solar Power 

Project on federal land violated their rights under the Religious Freedom Restoration Act (RFRA). 

The plaintiffs, individuals of Native American ancestry, claimed that the Ivanpah Projects’ 

construction denied them access to sacred areas and trails, called “Salt Song Trails.” Plaintiffs 

argued that the threat of criminal prosecution for trespass-should they seek to enter the plant to 

use the Trails-constituted coercion not to exercise their religious beliefs. The court of appeals 

disagreed. It noted that the declarations submitted by the plaintiffs were conclusory and did not 

actually assert that any sacred sites were located within the Ivanpah Project, so plaintiffs had not 

demonstrated a substantial burden on the exercise of their religious beliefs. 

Oil and Gas Development 

• On March 6, 2015, in Center for Sustainable Economy v. Jewell (D.C. Cir.), the D.C. Circuit, in 

a split decision, denied the petition for review in this case. Petitioner, a nonprofi t organization 

interested in achieving a sustainable economy, challenged Interior’s most recent Outer Continental 

promoting national security and military preparedness | 95
 
Chukchi Sea, USGS photo 

Shelf Five-Year Lease Plan for 2012-2017, in 

which it set out a schedule for leasing areas 

on the Outer Continental Shelf for oil and 

gas exploration and development. Petitioner 

alleged that Interior’s economic analysis 

failed to properly consider environmental 

and market effects that it says are required 

to be addressed at the planning stage, and 

that Interior’s decision was arbitrary because 

it failed to quantify many of the Lease 

Program’s costs and benefits. Petitioner 

also asserted that Interior’s Final Environmental Impact Statement (EIS) improperly 

used a biased analytic methodology and that 

Interior had provided inadequate opportunities for public comment at the Draft 

EIS stage. The panel majority concluded that petitioner had associational standing to petition for 

review, that petitioner’s environmental review claims were not ripe for review; that two of its Program 

challenges were forfeited, and that its remaining challenges to Interior’s adoption of the Lease Plan 

failed on their merits. The dissenting judge disagreed with the majority’s standing analysis and would 

have dismissed the petition on that ground without reaching any of the merits issues. 

• On June 11, 2015, in Alaska Wilderness League v. Jewell (9th Cir.), the Ninth Circuit upheld the 

Interior Department’s approval of Oil Spill Response Plans (OSRPs) prepared by Shell Oil Company 

subsidiaries for oil and gas exploration activities in the Beaufort and Chukchi Seas, off the coast of 

Alaska. The panel unanimously rejected the plaintiffs’ argument that Interior violated the CWA 

because, in approving the response plans, it allegedly relied on Shell’s unrealistic assumption that 

it could recover 95% of any spilled oil. The panel found that the OSRP had not, in fact, predicted a 

95% recovery rate, but simply made certain assumptions about how much oil would reach shore so 

that it could determine the appropriate scale of on-shore cleanup assets. The majority also rejected 

the plaintiffs’ assertion that Interior was required to consult under Section 7 of the ESA to determine 

whether it should add conditions to the OSRPs that would benefit ESA-listed species. The majority 

held that Interior had reasonably concluded the CWA provided it with no discretion to add such 

conditions, thus consultation was not required. Finally, the majority found that NEPA did not apply 

because Interior had reasonably concluded that it must approve any OSRP that met the statutory 

requirements. 

• In Tengasco, Inc. v. Jewell (E.D. La.), plaintiff sought judicial review of an Interior Board of 

Land Appeals (“IBLA”) affirmation of a Bureau of Safety and Environment Enforcement (“BSEE”) 

civil penalty order of $386,000, imposed on the grounds that oil equipment testing records were 

unavailable for review. In upholding the civil penalty the court ruled favorably that: (1) the 

challenged testing violations constituted a threat of harm and were not merely recordkeeping in 

nature, allowing immediate penalty imposition; (2) multiplying penalty application on a per-device, 

per-period basis was appropriate; (3) the burden is entirely on the operator to confi rm compliance 

with testing regulations; (4) the agency has discretion as to the weight of evidence submitted in an 

agency adjudication; and (5) post hoc testing records and affidavits do not compensate for failure to 

have the contemporaneous records required by regulation. 

• In Noble Energy, Inc. v. Jewell (D.D.C.), on remand from the United States Court of Appeals for 

the District of Columbia, the Bureau of Safety and Environmental Enforcement (BSEE) determined 

it had regulatory authority to order plaintiff to plug and abandon a well located off the California 

96 | promoting national security and military preparedness 
coast and re-issued its order to plaintiff. Plaintiff challenges that order under the APA because it 

believes BSEE has no authority to compel it to permanently plug and abandon the well in light of the 

United States Court of Appeals for the Federal Circuit’s prior determination that the United States 

materially breached plaintiff’s oil and gas lease. On June 8, 2015, the court denied plaintiff’s motion 

for summary judgment and granted our cross-motion for summary judgment. The court held that 

BSEE’s interpretation of its decommissioning regulations—to apply independently of any contractual 

obligations and to not include a common-law discharge defense—was reasonable and entitled to 

deference. 

• In White Earth Nation v. Kerry (D. Minn.), plaintiff tribes and environmental groups fi led suit 

against the State Department alleging that it permitted Enbridge to re-construct a pipeline across the 

international border with Canada in violation of NEPA. They also alleged that the State Department 

approved interconnections with a separate pipeline that allow Enbridge to transport more oil across 

the border than is allowed by their existing Presidential permit and that doing so violated NEPA. 

On December 9, 2015, the court issued an order granting summary judgment in favor of the State 

Department. The court found that the State Department’s actions were Presidential in nature and 

therefore were not reviewable under the APA. The court reasoned that, in responding to inquiries 

from Enbridge regarding its existing Presidential permits, the State Department was carrying out 

the directives of the President in Executive Order 13337, and therefore its actions were Presidential 

actions. 

promoting national security and military preparedness | 97
 
PROTECTING TRIBAL RIGHTS 


AND RESOURCES AND 


ADDRESSING TRIBAL CLAIMS
 

Supporting Tribal Authority Over Tribal Lands and Resources 

• The Eighth Circuit upheld a district court opinion in Smith v. Parker (D. Neb.), holding that 

the Omaha Reservation remained intact and had not been diminished by legislation authorizing 

the sale of land on the western edge of the reservation to non-Indian settlers. The Division had 

filed an amicus brief supporting the Tribe in the tribal court, and then intervened in the federal 

district court proceeding on behalf of the Tribe. 

• The Division intervened in litigation brought by the Tulalip Tribes, Tulalip Tribes v. State 

of Washington (W.D. Wash.), to protect the Tribes’ right to collect tribal tax revenues within a 

tribally chartered municipality built, regulated and managed by the Tribes and the United States 

on land within the Tulalip Reservation that the United States holds in trust for the Tribes, and 

to restrain state and local officials from taxing those activities in a manner inconsistent with 

federal law. With financial support and other assistance from the federal government, Tulalip 

constructed the infrastructure necessary to support a major entertainment, commercial, and 

tourism destination, including a hotel, resort, gaming facilities, amphitheater, retail stores, 

restaurants, and cultural center on its trust 

lands at Quil Ceda Village. The governmental 

services at the Village are provided primarily, 

if not exclusively, by the Tribes and the federal 

government. But the State and County, to the 

exclusion of the Tribes and the Village, collect 

around $40 million annually in taxes. 

• In 2002, the Seneca Nation of Indians and 

the State of New York entered into a tribalstate compact pursuant to the Indian Gaming 

Regulatory Act (IGRA) providing that the 

Seneca would be permitted to purchase land 

in Buffalo, New York, for the purposes of 

conducting Class III gaming (casino gaming) 

under IGRA. Between 2006 and 2009, 

various organizations and individuals filed 

98 | protecting tribal resources 

Tulalip Tribes map, Tulaliptribes-nsn.gov photo 
Omaha Tribe Sign Omaha-nsn.gov photo 

Flag of the Tulalip Tribes, Wikimedia photo 

protecting tribal resources | 99
 
 

three successive lawsuits against the National Indian Gaming Commission (NIGC) and Interior seeking 

to stop the Nation’s proposed casino operation. On September 15, 2015, in Citizens Against Casino 

Gambling in Erie County v. Hogen (2d Cir.), the Second Circuit entered a decision in consolidated 

appeals from all three cases upholding the right of the Seneca Nation to game on land in Buffalo that 

it had purchased for that purpose. The appellate court held that the Interior and NIGC decisions that 

the Buffalo parcel qualified for Class III gaming under IGRA and was neither arbitrary and capricious 

nor contrary to law. Congress intended that lands acquired under the Seneca National Settlement Act 

would be considered to be “Indian country.” It further held that IGRA’s prohibition against gaming on 

trust lands acquired after 1988 did not apply to lands that were held in restricted fee, as opposed to trust, 

status. 

Defending Tribal and Federal Interests 

in Water Adjudications 

A significant portion of the Indian Resources 

Section’s work is to secure tribes’ federal 

water rights, often one of the most valuable 

and increasingly scarce natural resources in 

the western United States. This responsibility 

includes complex, multi-party negotiations, 

working with other parts of DOJ and the 

executive branch, and with Congress to achieve 

legislative approval of water rights settlements. 

Following congressional ratifi cation, the 

Section litigates against challenges to entry of 

the settlement in court. 

As in past years, the Division reached water 

rights settlements for various tribes that if 

approved by Congress would solve substantial natural resources problems and end lengthy litigation. 

For example, we assisted DOI in the negotiations with the Confederated Salish and Kootenai Tribes and 

Montana regarding the thousands of claims brought by the U.S. and Tribes for both on- and off-reservation water rights. The State legislature approved the agreement. The settlement is now awaiting congressional approval. 

And, with DOI, we participated in intensive negotiations on the water rights of five Southern California 

Bands in the San Luis Rey River and to resolve related claims. After years of failed efforts, these talks led 

to an agreement signed by Secretary Jewell in late 2014 and AAG Cruden in early 2015. This agreement 

requires Congress to amend the 1988 San Luis Rey Indian Water Rights Settlement Act. After months of 

work with DOI, OMB, and the House Committee on Natural Resources, DOJ and DOI sent a joint letter to 

the Committee in support of amending the 1988 Act. 

Most water rights settlements require federal legislation in order to alter tribal rights and provide critical 

funding for infrastructure projects that solve water-related problems (e.g., safe drinking water unavailability or ESA). The Indian Resources and Law and Policy Sections work closely with DOI on testimony 

related to bills to ratify tribal water rights settlements. For example, at the end of the last Congress, 

we worked to oppose a waiver of federal sovereign immunity in a bill addressing water and land issues 

between Freeport McMoRan, the U.S., and the Hualapai Tribe. We succeeded in revising that provision 

in a manner that should establish a favorable precedent for future tribal water settlement legislation. 

San Luis Rey River , NPS photo 

100 | protecting tribal resources
 
Much of the Indian Resources Section’s water rights litigation in the past year focused on judicial 

proceedings regarding hundreds of objections by non-parties to several settlements enacted by Congress 

in 2009 and 2010. In two settlements, for the White Mountain Apache Tribe and the Shoshone Paiute 

Tribe of the Duck Valley Reservation, the court entered the decree after completing final proceedings. 

In Montana, regarding the Crow Tribe’s water settlement, we prevailed in the Montana Supreme 

Court over one set of objections and prevailed in the trial court on the objections of another group. 

Based on the United States-led briefing, the New Mexico federal court rejected objections to the water 

rights settlement for the Taos Pueblo. Also in New Mexico federal court, we fi led the final set of briefs 

to eliminate many hundreds of objections lodged against the remaining congressionally-approved 

settlement for the Nambé, Pojoaque, San Ildefonso, and Tesuque Pueblos. 

ENRD has also actively sought to develop the foundational law related to tribal water rights to 

groundwater on or adjacent to a reservation. In Agua Caliente Band of Cahuilla Indians v. Coachella 

Valley Water District (C.D. Cal.), the district court granted summary judgment in favor of the 

United States and the Tribe on the issue of whether the Tribe’s federal reserved water right includes 

groundwater. ENRD intervened in this important litigation seeking to confirm a federal reserved right 

to groundwater on behalf of the Agua Caliente Band of Cahuilla Indians, to quantify the Tribe’s water 

rights, and to enjoin local water authorities from continuing to overdraft an aquifer or interfere in any 

other way with those rights. The Division’s summary judgment briefing demonstrated that congressional acts and executive orders, the establishment of the reservation, the Tribe’s historical use of 

groundwater, and federal and state case law all supported the Tribe’s right to groundwater, a right that 

was also recognized by state groundwater legislation. The Division also prevailed against the water 

agency’s argument that the reservation had been disestablished. 

Upholding Agency Authority to Acquire Land in Trust for Tribes and Trust Land Status 

• The Division continued to have considerable success in defending decisions by Interior to take land 

into trust for the benefit of tribes under the Indian Reorganization Act (IRA). In Confederated Tribes 

of the Grand Ronde Community and Clark County, Wash. v. Jewell (D.D.C.), plaintiffs challenged 

Interior’s first application of a two-part framework for determining whether a tribe was “under federal 

jurisdiction” in 1934, as required by the IRA. The federal district court rejected the plaintiffs’ challenge 

to Interior’s decision to take land into trust for the Cowlitz Tribe. The district court determined that the 

statutory terms “recognized” and “under federal jurisdiction” are ambiguous and that Interior’s interpretation and application of those terms warranted deference. 

• Likewise, in County of Amador, California v. U.S. Department of Interior (E.D. Cal.), the Indian 

Resources Section successfully defended a challenge by Amador County to Interior’s decision to accept 

a fee-to-trust application for gaming by the Ione Band. The County alleged that the Band did not 

qualify for the Indian Gaming Regulatory Act’s restored land exception to the prohibition on gaming 

lands acquired post-1988. The County also brought NEPA and Indian Reorganization Act challenges, 

including a claim that the Band was not under federal jurisdiction in 1934 and therefore was not eligible 

to have land taken into trust. The Division obtained a favorable decision from the district court on all 

claims. 

• In another challenge to the lone Band trust acquisition, No Casino in Plymouth et al. v. Salazar et 

al. (E.D. Cal.), the Division prevailed in a citizen group’s challenge to Interior’s decision to approve the 

Ione Band’s fee-to-trust application for gaming purposes. 

• In Preservation of Los Olivo’s and Preservation of Santa Ynez v. Interior (C.D. Cal.), the Division 

successfully opposed plaintiffs’ attempt to reopen a decision to acquire land. And the Division also 

protecting tribal resources | 101
 
The National Indian Gaming Commission, nigc.gov photo 

prevailed against challenges to trust acquisitions in Citizens for a Better Way v. Interior (E.D. Cal.), 

Central N.Y. Fair Business Association v. Jewell (N.D.N.Y.), and Town of Verona v. Jewell (N.D.N.Y.). 

• When Congress specifi cally affirms an Interior decision to acquire land in trust, the Division defends 

challenges to the legislation. During fiscal year 2015, the Division successfully defended the constitutionality of the Gun Lake Trust Land Reaffirmation Act in Patchak v. Jewell (D.D.C.). 

• In opinions issued on June 4 and July 8, 2015 in Big Lagoon Rancheria v. California (9th Cir.), the 

Ninth Circuit, sitting en banc, affirmed the district court’s judgment that the State of California had 

failed to negotiate in good faith with Big Lagoon Rancheria over its request under the IGRA to enter into 

a compact to conduct Class III 

gaming operations on land that 

the Interior Department had 

taken into trust for the Rancheria 

in 1994. Earlier, the Ninth 

Circuit held in a panel decision 

that California could raise as a 

defense to the bad faith claim 

that the land in question was not 

“Indian lands” under IGRA (and 

thus was not eligible for gaming). 

The panel also concluded that, 

under Carcieri v. Salazar, 555 

U.S. 379 (2009), Interior had 

improperly taken the land into trust because the Rancheria was not a federally recognized tribe in 1934. 

The Rancheria then sought rehearing en banc, and the United States filed an amicus brief supporting the 

petition. In the en banc decision, the court held that California’s argument amounted to an improper 

collateral attack on Interior’s 1994 decision to take the land into trust. It also concluded that even if the 

State had brought an APA claim, it would be barred by the statute of limitations because the State was 

on notice of the trust acquisition since 1997 and had not challenged it. Finally, the en banc court refused 

to consider California’s claim that Interior had improperly recognized the Rancheria as a tribe since this 

argument had not been brought as an APA claim, and even if it had, it too would have been barred by the 

statute of limitations. 

• In Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. Salazar (E.D. Cal.) 

(consolidated with suits brought by Citizens for a Better Way and the United Auburn Indian Community 

of the Auburn Rancheria), plaintiffs allege violations of the APA, NEPA, the IGRA, the IRA, and the 

CAA. Plaintiffs challenge the Federal/State two-part determination to take land into trust, for gaming 

purposes, for the benefit of the Estom Yumeka Maidu Tribe of the Enterprise Rancheria (“Enterprise”), in 

the Marysville-Yuba City area. The court previously denied three separate TRO motions (and one motion 

for mandamus) and granted defendants’ motion to strike extra-record documents and expert reports 

submitted by plaintiffs. On September 24, the court granted summary judgment in our favor, fi nding that 

defendants complied with each of the statutory provisions (or that any noncompliance was harmless). 

With respect to NEPA, the court found that that BIA’s statement of purpose and need was not overly 

narrow; that BIA fulfilled its obligation to “rigorously explore and objectively evaluate all reasonable 

alternatives, and that BIA took a sufficiently hard look at the environmental, aesthetic, historic, and socioeconomic impacts of the proposal. 

Defending the Federal Recognition Process 

Plaintiff in Mackinac Tribe v. Jewell (D.D.C.) sought a declaratory judgment identifying it as a federally-recognized Indian tribe and an order requiring Interior to hold a Secretarial election for Plaintiff. 

102 | protecting tribal resources 
 

Plaintiff did not complete the federal acknowledgment process set forth in the Interior’s Part 83 

regulations, instead basing its claim on its purported recognition in an 1855 treaty. On March 31, 

the court converted our motion to dismiss into one for summary judgment and granted it. The 

court found that the Indian Reorganization Act did not waive the government’s sovereign immunity. 

However, the court found that the APA, which Plaintiff did not plead, provided the necessary waiver. 

Nonetheless, the court held that plaintiff failed to exhaust the administrative remedies and could not 

obtain a secretarial election until successfully obtaining recognition. 

Continued Progress in Resolving Tribal Trust Litigation 

In these highly contentious and 

resource-intensive cases, various tribes 

claim that the Departments of the Interior 

and Treasury have mismanaged tribal trust 

funds and natural resources for decades 

and seek relief in the form of accountings 

and monetary damages. Since October 1, 

2010, ENRD has settled the claims of 86 

tribes, resulting in the settlement of 57 

lawsuits. Settlement of valid tribal trust 

claims is as important to our Division as our 

responsibility to protect the United States 

from meritless claims that the United States 

has breached its trust responsibilities to 

individual Indians or tribes. 

• This year, ENRD resolved the “breach of 

trust” claims of the Chickasaw Nation and 

the Choctaw Nation, which spanned over 

100 years, and included tribal allegations that the United States had unlawfully or unconstitutionally 

sold over a million acres of the tribes’ former trust lands, and featured tribal demands for the return 

of the lands and restitution or “restoration of the trust.” Under the settlement agreement, the United 

States paid $186 million to settle all of the Nations’ claims regarding the accounting and management 

of their trust funds and natural resources. The agreement also paves the way for more cooperation 

and improved relations between the United States and the Nations in the future. 

• Also, ENRD resolved the long-standing claims of the Gros Ventre Tribe and the Assiniboine Tribe 

of the Fort Belknap Reservation, without the need for protracted litigation. As part of the settlement 

agreement, the United States paid the tribes $12.5 million, and in return the Tribes dismissed their 

“breach of trust” claims with prejudice, accepted certain trust account statements as the accountings 

required by law, and agreed to improved communications and informal dispute resolution with the 

United States regarding any future trust account disputes. 

Litigation Over Tribal Treaties 

In Jones v. United States (Fed. Cir.), plaintiffs brought claims under the 1868 Treaty, which includes 

a “bad men” clause under which the United States indemnifies the tribe against “bad men,” between 

the Ute Tribe and the United States and a breach of trust claim related to the death of Mr. Murray, 

a member of the Ute Tribe. Mr. Murray died from a single gunshot wound following a high-speed 

chase with state law enforcement. The plaintiffs alleged that the BIA and the FBI failed to conduct 

a proper investigation into Mr. Murray’s death and failed to “protect the territorial integrity of the 

Tribe’s reservation.” The court determined, however, that plaintiffs had failed to state a cognizable 

Fort Belknap Reservation, American Indian Relief Council photo 

protecting tribal resources | 103
 
claim for most of the alleged wrongs under the 1868 Treaty because their allegations were of inaction 

or omissions, which were not recognized harms under the 1868 Treaty. The court also found that it 

lacked subject matter jurisdiction over a breach of trust claim because plaintiffs did not identify a 

specific statutory obligation that the United States failed to fulfill as part of its trust duties under the 

1868 Treaty. 

Indian Child Welfare Act 

The Division vigorously defended, in National Council for Adoption v. Jewell (E.D. Va.), Interior’s 

issuance of non-binding guidelines interpreting the Indian Child Welfare Act. The statute was enacted 

“to protect the best interests of Indian children and to promote the stability and security of Indian 

tribes and families by establishing minimum federal standards for the removal of Indian children 

from their families and the placement of such children in foster or adoptive homes or institutions 

which will reflect the unique values of Indian culture. . . .” The Division successfully argued that the 

plaintiffs lacked standing to sue and that the guidelines could not be challenged because they were 

not a final agency action. 

104 | protecting tribal resources
 
SUPPORTING THE 


DIVISION’S STAFF
 

Promoting Diversity at Work 

ENRD’s Diversity Committee continued to support and promote the Department’s Diversity 

and Inclusion Dialogue Program (DIDP). The purpose of the DIDP is to facilitate a deeper 

understanding of diversity and inclusion issues among DOJ employees. The program focuses 

on enhancing personal growth and effectiveness through communicating, listening, introspection, and building acceptance for differing perspectives. DIDP provides a safe, open, structured, 

and confidential environment where employees can freely discuss and explore the full spectrum 

of diversity and inclusion topics and how these aspects of diversity affect our ability to work 

together. In 2015, ENRD sponsored 19 participants in the DIDP program. 

The Division continued its robust and technology-centered program and process for interviewing and evaluating law clerk candidates. The program, which reaches out to over 200 

accredited U.S. law schools and solicits applications over the internet, creates opportunities 

for broadening the applicant pool and promoting diversity. This past year, the following 

improvements were made to the program: a web-based law clerk calendar was created and is 

accessible by all law clerk committee representatives; a “minutes” system to keep records of 

law clerk committee meetings was developed and implemented; hiring fairs were integrated 

into the Division law clerk hiring program (currently we participate in six fairs yearly, in 

different regions of the country, including one focused exclusively on minority candidates); 

and a new repository of cross-cutting demographic information about law clerks was created. 

The law clerk hiring process was further standardized this past year, so as to allow for a faster 

turnaround time between the close of a hiring period and the beginning of application review. 

Recognition of Division Staff 

• The LAS trial team was recognized by the Bonneville Power Administration (BPA) for their use 

of ADR in negotiating the resolution of multiple cases to acquire easements on behalf of the BPA 

to construct a 500-kilovolt transmission line in rural Washington State. Settling these cases 

saved the federal government and taxpayers over $1.6 million. In recognition of this outstanding 

performance on the part of the trial team, BPA officials visited the Division’s offi ce, individually recognized each member of the trial team, and gave ENRD a plaque commemorating the 

supporting the division’s staff | 105
 
ENRD Award Ceremony, DOJ photo 

2015 Lands Open, Jeff Bank photo 

106 | supporting the division’s staff
 
collaborative partnership of the Department and BPA in the resolution of these diffi cult land 

acquisition cases in a fair and just manner. 

• LAS was also recognized by the Air Force for their work on the Nevada Testing and Training 

Range condemnation. 

• NRS Senior Attorney Andrew Smith was honored with the “USDA 2015 General Counsel’s 

Award for Excellence, Outstanding DOJ Attorney.” 

• Vallie Byrdsong, a member of the Office of Litigation Support technical team, received an 

award from ENRD’s Assistant Attorney General in recognition of his superior work on the 

Emhart Industries, Inc. v. Air Force (D.R.I.) case. 

• IRS attorney John Turner received the EPA’s Silver Medal for Superior Service for exemplary 

work in EPA’s approval of the Clean Air Act Treatment as State (TAS) application for the Wind 

River Reservation. 

• EES attorneys Katherine Kane, Erica H. Pencak, Marcello Mollo, and Alan Tenenbaum 

received the EPA’s Gold Medal for Exceptional Service for their work on the Anadarko Fraud 

Recovery Team. 

• Jason Barbeau in EES was awarded an EPA Silver Medal for Exceptional Service for the 

Hyundai/Kia Clean Air Act matter (United States and California Air Resources Board v. 

Hyundai Motor Co., et al.), pursuant to which the automakers paid a $100 million civil penalty 

and will spend approximately $50 million on measures to prevent future violations. 

• EES attorneys Steven Ellis, Richard Knodt, Sumona Majumdar, and Cathy Rojko earned an 

EPA Silver Medal for Superior Service for their work on the Clean Water Act case against the 

Metro Water Reclamation District of Greater Chicago, which secured approximately $400 

million in injunctive relief. 

• ECS attorney Kenneth Nelson received the EPA’s Bronze Medal for Commendable Service for 

his work on the Noble Drilling Team. 

• EES attorney Jason Dunn received the EPA’s Bronze Medal for Commendable Service for his 

contributions to the settlement of three major cases that were part of the New Source Review 

National Enforcement Initiative for Coal-Fired Utilities: United States v. Consumers Energy, 

United States v. Arizona Public Service Co. (the Four Corners power plant), and United States 

v. Interstate Power and Light Co. The settlements in these three matters are expected to reduce 

emissions from the power plants by approximately 88,000 tons per year and the expenditure of 

approximately $1.78 billion on pollution-reducing measures. 

• EPA conferred on Mark Gallagher in EES a Bronze Medal for Commendable Service for his 

work on the Financial Assurance Guidance Work Group, which developed the EPA Offi ce of 

Site Remediation Enforcement’s Guidance on Financial Assurance in Superfund Settlement 

Agreements and Unilateral Administrative Orders (April 6, 2015), the first such comprehensive 

guidance document on the subject. 

supporting the division’s staff | 107
 
• Leslie Allen in EES earned an EPA Bronze Medal for Commendable Service for her work on 

the Ability to Pay Workgroup, which developed guidance for case teams in evaluating a violator’s 

ability to pay a civil penalty. 

• Joe Davis in EES and Saundra Doyle in the EO received the EPA’s Bronze Medal for 

Commendable Service for their work on the Superfund Accounts Receivable Evaluation Team, 

which conducted a nationwide review of the timeliness and completeness of payments owed to 

the Superfund. 

• Elliot Rockler and Katherine Vanderhook-Gomez in EES received Bronze Medals from EPA 

for their efforts to ensure the integrity of the Renewable Fuel program through their work 

on United States v. Washakie Renewable Energy, LLC. EPA’s Renewable Fuel Standard 

(implementing the Energy Independence and Security Act of 2007) encourages the blending 

of renewable fuels into the motor vehicle fuel in the United States. Washakie generated more 

than 7.2 million renewable identification numbers (RINs) based upon its purported production 

of biodiesel at its Plymouth, Utah, facility. There was no evidence, however, that Washakie 

produced any biodiesel during the period covered by the complaint. To resolve an allegation 

that it generated 7.2 million invalid RINs, Washakie agreed to pay a civil penalty of $3 million. 

Before the settlement Washakie retired more than 7.2 million RINs by purchasing RINs from 

other parties. 

• EPA conferred Bronze Medals on Jason Dunn and Elias Quinn in EES for their work on 

United States et al. v. Continental Carbon Co., which significantly cut emissions of harmful air 

pollutants at carbon-black manufacturing facilities in Alabama, Oklahoma, and Texas. 

• Jack Lipshultz and Norman Rave of EDS were awarded EPA’s Gold Medal for Exceptional 

Service for their work in EPA v. EME Homer City Generation, for their role in persuading 

the Supreme Court to uphold the Cross-State Air Pollution Rule and enabling EPA to protect 

citizens from neighboring states’ air pollution. 

• Amanda Shafer Berman, Jack Lipshultz, and Perry Rosen of EDS were awarded the Gold 

Medal for Exceptional Service by EPA as members of the Greenhouse Gas Supreme Court 

Litigation Team, for persuading the Supreme Court in Utility Air Regulatory Group v. EPA 

that the Clean Air Act requires major sources to address greenhouse gases in preconstruction 

permits. 

• Eric Hostetler of EDS won a Bronze Medal award from EPA’s Office of General Counsel for 

his exceptional legal work defending the Agency’s Mercury Air Toxics Standards in the Supreme 

Court in Michigan v. EPA. 

Adhering to Government Ethics and Professional Responsibility Standards 

The Law and Policy Section serves as the Division’s government ethics and professional responsibility officer and counselor. In addition to its regular day-to-day counseling on those issues, 

the section provided in-depth advice on several significant matters in fiscal year 2015. The 

section also provided live training on government ethics to every ENRD attorney. 

108 | supporting the division’s staff
 
Strengthening Public Access to Information on ENRD’s Litigation Priorities 

Once a settlement was reached with BP in the Deepwater Horizon matter, ENRD’s Office 

of Information Management (OIM) published a webpage to solicit public comments on the 

proposed settlement agreement. The public comment period provides an opportunity for the 

widest array of interested parties to provide input on the historic settlement. The webpage, its 

contents, and the timing of its publication was the result of extraordinary coordination between 

ENRD’s Environmental Enforcement Section, the National Park Service, and the National 

Oceanic and Atmospheric Administration. 

In support of a joint February 11, 2015 announcement by the Departments of Justice, State 

and Interior on the “Implementation Plan for the National Strategy on Combatting Wildlife 

Trafficking”, ENRD updated the Division’s Wildlife Trafficking Website. The updates included 

the addition of key documents regarding federal efforts to address wildlife trafficking, as well as 

information on litigation developments. 

Enhancing the Division’s In-House Training Capacity 

The Office of Human Resources continued to provide Division-wide training based on the needs 

of each of ENRD’s sections. There was increased focus on communication and management 

skills in 2015, which included an effort to ensure that all professional administrative support 

staff were afforded an opportunity to participate in those areas of training. Courses included 

Legal Writing, Business Writing, Email Etiquette, Manager Tools, Leadership, Teambuilding, 

and Coaching. Several retirement courses were offered for personnel, and more classes are 

planned in FY 2016 so that fi eld office personnel may participate. The honor grad training 

program was offered for CLE credit this year, in addition to offering the participants two hours 

of DOJ-specific professionalism training. Also, legal writing was included as part of the program 

for a second year. Regular quarterly reports are now being provided to management in order to 

assess training needs and trends. ENRD also streamlined its electronic approval and reporting 

systems for training. 

Continuing to Meet Fiduciary Responsibilities under the Superfund Agreement 

Attorneys and managers continue to rely on ENRD’s internal time reporting system to view data 

concerning the amount of employee time billed to Superfund during a given week and during 

the year to date. This system facilitates ENRD’s monitoring of resource allocations, which is 

required under an interagency agreement with EPA. 

Being a Good Steward of Taxpayer Dollars 

In fiscal year 2015, the Division effectively managed approximately $233 million in budgetary 

resources from a variety of sources. In light of continued fiscal challenges, the Division had to 

manage its funding prudently in order to cover inflationary cost increases (such as higher rent 

costs, employee grade/step increases) and an increasingly challenging workload. Approximately 75% of ENRD’s operating budget in fiscal year 2015 was dedicated to personnel expenses. 

ENRD will continue to pursue cost-saving opportunities and efficiencies to ensure long-term 

fiscal solvency in the face of future anticipated government-wide fiscal uncertainty and likely 

constraints. 

supporting the division’s staff | 109
 
 

Supporting the Division’s Litigation Needs with Expert Services 

In 2015, the Division executed a near-record number of expert witness contract actions with a 

total value of more than $70 million. The 451 procurement actions carried out by Office of the 

Comptroller staff engaged a wide variety of experts, including many used during the Deepwater 

Horizon case and in other high profile litigation. 

Providing Essential Litigation Support to the Division’s Largest and Highest Profile 

Cases and Matters 

ENRD, through its Office 

of Litigation Support 

(OLS), continued to fund 

and provide the staffing, 

management, tools and 

technical infrastructure 

needed to support the 

final Penalty Phase of 

the Deepwater Horizon 

oil spill litigation. 

ENRD’s document 

management software, 

Relativity, played an 

integral role in centralizing both pretrial and 

trial-related activities 

for this complex case. 

Though contractor staff 

continued to provide 

legal support to the ENRD attorney team litigating this phase of the case, OLS took the lead in 

the technical support needed for both trial preparation and trial support. OLS technical staff 

processed and loaded over 17,000 trial and demonstrative exhibits to a Relativity database that 

was ultimately used for both exporting for trial presentations, as well as tracking for admissibility during court proceedings. 

OLS also assisted with processing documents for the administrative record related to the case 

under an extremely tight deadline. OLS staff assisted both NOAA and Interior in processing and 

loading approximately 7,600 documents that were made available to the public on the same day 

that the consent decree for this case was lodged with the court. 

ENRD’s Office of Litigation Support also continued to provide valuable technical assistance 

and guidance at other trials in the Division during this calendar year. For example, OLS case 

managers and technical staff were an integral part of the successful Emhart Industries, Inc. v. 

Air Force (D.R.I.) trial in the Environmental Enforcement Section – an eight-week Superfund 

trial in Providence, Rhode Island. During 2015, OLS provided both pretrial and trial support, 

including on-site assistance, at over five other trials in the Division, at locations outside of the 

Washington, DC area. 

Electronic Courtroom, USCOURTS.gov photo 

110 | supporting the division’s staff
 
OLS Project User System (OPUS) 

During 2015, the Office of Litigation Support continued the successful implementation of its 

OLS Project User System (OPUS), a software solution specifically designed by OLS management 

and technical staff to both streamline and effectively manage responses to requests for the full 

range of automated litigation support services available to the Division. These services include 

the full spectrum of processing options for electronically-stored information (to include culling, 

filtering, de-duplication on custodial or global level, troubleshooting and special handling of 

problem files, etc.); the hosting of data in Relativity databases, including the ongoing assistance 

to attorney teams with substantial document review projects; hard copy scanning; and, most 

importantly, the support for all industry standard document production formats. Approximately 5,750 requests comprising a wide range of both complexity and volume were submitted 

and completed during the year, an increase of over 1,000 compared to last year, when OPUS 

was first deployed. This increase in the number of requests during 2015 is illustrative of the 

Division’s acceptance of OPUS as an effective means to not only track the progress of requests 

to OLS, but to also confirm that the processing decisions made (and often mandated by court 

order) are documented and consistently followed. 

The Office of Litigation Support provides a full range of automated litigation support services 

that are available to the Division’s employees. During 2015, approximately 6 million documents 

(45 million pages) were processed and 2 million unique documents (9 million pages) were 

produced by OLS technical staff members. A total of 6 million copies (54 million pages) were 

also produced and copies of production media including CDs, DVDs, and external hard drives. 

Working with Client Agencies 

The Office of Litigation Support made tremendous strides during 2015 in providing guidance to 

ENRD attorneys, as well as agency technical staff and counsel, on the collection of forensically-sound, electronically-stored information (ESI). OLS staff provided advice on collection issues 

such as the scope of the collection, the potential use of search terms to find responsive data, the 

selection of custodians, and the technical options available to effectively handle the data to be 

collected. OLS staff are now familiar with the relevant technical contacts at some of our biggest 

client agencies as well as the technical limitations posed by the email and document storage 

systems used by these agencies. This familiarity has made it easier for OLS staff to provide 

consultation and advice to the Division’s attorneys prior to the start of discovery, and to provide 

troubleshooting assistance once the data has arrived for processing. As part of our collaboration with the client agencies on collection issues, OLS continued in 2015 to allocate licenses to 

the Harvester collection software owned by ENRD to assist those agencies that do not currently 

have an effective collection tool for preserving metadata. OLS provides instruction and guidance 

on the use of this software to ensure that collection is done correctly and in compliance with the 

discovery agreements reached in the case. The expertise in the collection of electronically-stored 

information that resides in ENRD’s Office of Litigation Support has made its staff a consistent 

resource for both the ENRD attorney teams and the client agencies. In fact, in 2015, OLS staff 

was invited to participate in numerous meetings with the client agencies to provide advice on 

how these agencies can replicate the type of efficient litigation support that is provided by OLS 

to the Division. 

supporting the division’s staff | 111
 
Automating Work Processes 

ENRD’s Service Center continued to support Division attorneys and support staff in fiscal 

year 2015 by processing more than 35,000 electronic court filings. ENRD’s Service Center 

downloaded the electronic documents from court websites, saved a copy to the lead attorney’s 

document management directory, coded each filing, and printed a paper copy for the official 

files. The Service Center also processed 483 scanning requests from section personnel, and 

reproduced almost 1.5 million pages of electronic documents to paper format. 

Employing Innovative Technology Solutions for ENRD’s Workforce 

The Office of Information Management rolled out a web-based version of its Case Management 

System replacing antiquated front-end software not supported commercially since 1999. 

CMS Web is an invaluable repository of case and time data allowing ENRD to provide critical 

information needed to effectively present Division costs in litigation, support our annual 

Superfund reimbursable funding agreement with EPA, and respond to various audit and 

congressional inquiries. CMS Web is also an increasingly useful resource for Division managers, 

allowing them to manage attorney workloads and case assignments, assess more efficient 

organizational structures, and streamline docket reviews. 

The Office of Administrative Services, in concert with the Office of Information Management, 

developed a new website to keep ENRD staff informed about the latest news regarding the 

Division’s potential future move to the NoMa (“North of Massachusetts Avenue”) area of D.C. 

The site has a calendar, maps of the area, current dining options, transportation information, 

Division contact information and a suggestion box. 

In fiscal year 2015, ENRD achieved success in implementing several signifi cant information 

technology upgrades that will benefit all employees and enhance the Division’s ability to 

effectively carry out its mission. 

Deployed a VoIP-based phone system in the Denver Field Office 

The Denver Field Office was in need of a phone system upgrade due to the age and condition 

of its existing system. A VoIP system was deployed in September of 2015. Included in the 

new VoIP deployment were new phone handsets for all employees along with advanced calling 

features such as enhanced call conferencing, follow-me call routing, voicemail integration with 

email, Bluetooth capability and more. Eventually all ENRD sites are expected to be upgraded to 

VoIP phone systems. 

Installed new virtual server infrastructure in the San Francisco office 

Two members of OIT traveled to the San Francisco Field Office in order to install new servers 

and network storage to be used as a new server virtualization platform for this office. The new 

virtual server platform will provide enhanced network services to this office but require less 

hardware. All of the new virtual servers were deployed using the latest operating system and 

all application software was upgraded to the latest versions. All of the legacy server and storage 

hardware was able to be excessed from the computer room, which resulted in a much lower 

overall power requirement for this site. 

112 | supporting the division’s staff
 
Deployed new Remote Access Servers across all ENRD Sites 

ENRD has offered remote network access to all employees for over 20 years. The servers used to 

provide this service are deployed to four primary locations, including DC, Denver, San Francisco 

and our Continuity of Operations (COOP) site in Rockville MD. All of these servers were 

upgraded to the latest Microsoft operating system. 

Completed the JCON5 upgrade for all ENRD locations 

OIT deployed the JCON5 network upgrade primarily during 2014 but a few remote fi eld sites 

were not able to be upgraded until 2015. The last offices that were upgraded to JCON5 included 

the Seattle and New Orleans offices. The JCON5 upgrade included new workstation hardware 

as well as upgrades to all software. Productivity, security, and morale are all dependent upon 

ENRD keeping such information technology assets up to date and providing employees with 

updated applications. 

Procured 130 new laptops to replace aging inventory 

OIT acquired 130 new laptops to replace aging inventory deployed throughout ENRD. These 

new laptops are in addition to 100 new laptops that were deployed during the previous year. 

OIT will continue to upgrade laptops, tablets and other mobile devices as needed. 

Upgraded the Verizon mobile network infrastructure in PHB 

OIT deployed Apple iPhones to all eligible employees in 2014 which utilize the Verizon LTE 

network for wireless communications. Shortly after the iPhone deployment was completed 

the wireless coverage in the Patrick Henry Building seemed to be problematic and unreliable. 

Based on these observations OIT contacted Verizon to have them perform a site survey. Based 

on the survey, Verizon decided to install new LTE hardware throughout PHB to upgrade 

wireless coverage and performance. These upgrades were completed in June 2015 and provided 

improved performance and coverage for all employees located in PHB. 

Acquired and deployed licenses for online web conferencing services 

ENRD employees have expressed an interest in utilizing online web conferencing services for 

many years, but historically JMD has blocked these services from being used on DOJ networks. 

Once JMD changed their policy, OIT acquired hosting licenses from three online web conferencing companies, which included GoToMeeting, Adobe Connect and WebEx. OIT distributed 

the licenses to many employees and the response has been very positive. Some examples of how 

these services have been used throughout ENRD include providing virtual online classrooms, 

hosting meetings to provide case litigation and support updates, utilizing online meeting events 

versus having employees travel, and participating in online collaboration activities that provide 

real-time document creation and mark-up. 

Acquired and deployed new high-performance workstations for OIM and OLS 

OIT acquired and deployed 30 high-performance workstation PCs for specific employees within 

the OLS, OIT and OIM groups. These PCs were deployed for staff members who required 

supporting the division’s staff | 113
 
greater performance for such tasks as application development, software testing, and GIS 

processing. 

Supporting Travel for ENRD—Through the Division’s Web-Based Travel 

Management System 

The Office of the Comptroller continues to support the Division’s travel management system, 

“E2,” first implemented in FY 2014. This new system ended the resource intensive practice of 

handling paper forms for employees seeking approval to travel and for securing reimbursement 

for travel expenses. We currently have 633 E2 users in the Division. Because E2 is integrated 

with CWTSato’s online booking engine and is a web-based system, travelers, travel arrangers, 

approving offi cials, and fi nance officials have greater flexibility and access to handle the travel 

needs of the Division. In addition, E2 provides important audit and compliance related checksand-balances and introduces a much higher level of data integrity for the Division’s travel-related transactions that could not have been achieved using the previous, outdated travel system. 

Supporting Records and Systems Management 

The Office of Administrative Services (OAS) establishes and promotes a records management 

program for the Division in accordance with Department policy. In support of the National 

Archives and Records Administration (NARA) requirement for all employees to complete annual 

records management training, OAS identified important records management topics and created 

training material for implementation. Topics included an overview of records management, 

federal records, and other activities involved in managing records and information for the 

Division. OAS collaborated with the Office of Human Resources (OHR) to arrange the accessibility of the annual training via learnDOJ for completion and tracking purposes. A total of 702 

employees received 2015 annual records management training. 

OAS also designed training on the Division’s records tracking database, Autonomy Records 

Manager. The monthly training sessions are open to all new employees and anyone who desires 

refresher training. The classes are included on the Division’s Training Calendar. A total of 34 

employees received training in FY 2015. 

OAS and OHR met and implemented a feedback evaluation system to be used for JCON’s new 

employee orientation, which includes records management training. The evaluation enables 

new employees to give feedback regarding computer and records management training. 

This valuable feedback will allow the Executive Office to make necessary adjustments to the 

orientation process. A total of 104 new hires received training. 

Promoting Security 

To ensure the safety of Division personnel and facilities, in fiscal year 2015, ENRD held 

emergency evacuation drills for all PHB personnel and coordinated a number of COOP training 

and testing events for the entire Division. ENRD Continuity Program Managers participated in 

a COOP orientation at the primary continuity facility at Skyline Tower in Alexandria, Virginia in 

March 2015 and in April, 63 employees from Washington, D.C., and five fi eld offi ces participated 

in a telework exercise that tested the ability of the Division’s computer systems to handle a large 

volume of remote users simultaneously. The Division also completed annual safety inspections 

114 | supporting the division’s staff
 
of all ENRD offices (Washington, D.C., and fi eld offices) in compliance with DOJ Safety Order 

1779.2B. 

Greening the Division 

The Division held its 12th 

annual Earth Day service 

celebration at Marvin 

Gaye Park in April 2015. 

This year’s projects were 

once again focused on the 

Park’s Greening Center. 

The Greening Center 

is the largest inner city 

garden in the Washington 

area and provides tons 

of fresh produce to the 

people in the neighborhood. This year over 80 

ENRD volunteers helped 

plant new gardens, erect 

new greenhouses, weed and cut grass. The new greenhouses will allow park personnel to grow 

vegetables for the community all year long. 

ENRD also continued to lead the Department in green building initiatives. The Division 

maintained its trend of lowering energy usage in the Patrick Henry Building (PHB) for the 8th 

consecutive year. PHB, where ENRD is the primary tenant, received an Energy Star certification 

in 2014 and continues to meet the environmental standards necessary to continue the LEED 

certification received in 2012. 

Finally, the Division saved staff time and money by having contractors in the records 

management warehouse in Landover, Maryland, shred and recycle over 468 boxes of paper in 

fiscal year 2015 using the Division’s high speed shredder. 

Earth Day Marvin Gaye Park, DOJ photo 

supporting the division’s staff | 115