p& FY 1988 Enforcement Accomplishmenls Report 

The FYI988 Enforcement Accomplishments Report was prepared by the 

Compliance Evaluation Branch within the Office of Enforcement and 

Compliance Monitoring. Information contained in the report was supplied by 

the EPA Regional Offices and Headquarters program offices. The following 

persons partiapated in the writing, editing. and production of this report: Rick 

Duffy, Bill Watt, Robert Banks, Eloise Furbush, Merle Miller, and Joyce 

Johnson. 

. .. 
... , 

FY 1988 Enforcement Accomplishments Report 

TABLE OF CONTENTS 

SUBTECT 

I. ENVIRONME NTAL ENFORCEMENT ACTIVITY 

This section provides information on FY1988 levels of Federal 

civil and criminal judicial case referrals,.administrative actions, 

Federal penalty assessments, and State enforcement activity. 

11. MATOR ENFORCEMENT LITIGATION AND 

KEY LEGAL PRECEDENTS 

An alphabetized summary of important civil and criminal 

judicial case settlements, administrative actions, and key court 

decisions on points of law that occurred during the year. 

111. BL 

NATIONAL ENFORCEMENT PROGRAM 

1 

6 

21 

Summaries of major enforcement program strategies, initiatives, 

guidance, and management studies. 

IV. MEDIA SPECIFIC ENFORCEMENT PERFORMANCE: 

RESOLVING SIGNIFICANT NONCOMPLIANCE 31 

Contains brief summaries of the Strategic Planning and 

Management System definitions of Significant Noncompliance 

and highlights of recent program performance. 

APPENDTX: ENFORCEMENT DATA 

Contains historical enforcement data on Federal and State . 

enforcement activities. ,. .. . I_ 

. ., .. 
FY 1988 Enforcement Accomplishments Report 

I. EJVVIRONU ENFORCEMENT ACTIVITY 

.. ve 

.. ent - CI~ 

Federal environmental enforcement activity is proceeding at levels unmatched since the 

Environmental Prot&tion Agency was created in 1970 to enhance the protection of human health and 

the environment from the risk resulting from environmental pollution. Since that time, EPA has 

referred 2,912 civil cases and 258 criminal cases to the Department of Justice (DOJ) for prosecution (see 

Illustration 1 below). In FYl984, EPA developed and instituted a number of management 

improvements to ensure that an effective and vigorous enforcement program was maintained. Since 

then, the Agency has referred to DOJ 1,545 civil oses (53% of all civil cases referred since the 

Agency's mation) and 212 criminal cases (82% of all criminal cases). In FY1988, EPA established 

new high-water marks for both Federal civil and criminal judicial enforcement activities with 372 

civil cases and 59 crimi~l cases ref4 to DOJ. 

EPA CIVIL REFERRALS TO 

THE DEPARTMENT OF JUSTICE 

FY1977 TO FY1988 

I TOMW WATER 3 HAZARDOUS 0 AIR 

WASTE 
<@ ,. FY 1988 Enforcemkt Accomplishments Report 

nforcement Crranrnal .. - 

The Agency's criminal enfoment program has steadily expanded ib presence in the regulated 

community. As the second illustration indicates, criminal case referrals, numbers of defendants 

charged, and defendants convicted have increased over time. Since 1982, individuals have received 

prison sentences for committing environmental criues totaling 91 years and om 450 years of probation 

have been imposed. Imposition of probation is an extremely effective part of the criminal proem 

because in the event that an individual mmmits another crime (not limited to environmental crimes) 

while on probation, the provisions of the probation normally call for the automatic imposition of a 

prison sentence that was suspended in lieu of probation. 

EPA CRIMINAL ENFORCEMENT PROGRAM 

FY1982 TO FY1988 

I RPTRRALSTO CASES E DEFENDANTS II DEF€NDANTS 

SU-Y CHARGED coNvIm 

FXOSECLmD 

wl 

Illustration 2 

trative EnforReferral of civil and criminal judicial enforcement actions are the performance indicators most 

commonly looked to by the public and the Congress as they assess EPAs enforcement efforts. While 

judicial remedies are cruaal to EPAs overall surress, as time goes on other indicators also need to be 

evaluated to assess the Agency's effectiveness in enforcing environmental laws and regulations. In 

the statutes that Congress has enacted or reauthorized over the past few years, EPA has been given 

expanded authority to use administrative enforcement mechanisms to address violations and compel 

regulated facilities to achieve compliance or take other corrective actions. Administrative 

enforcement tools permit the Agency to impose penalties and direct regulated entities to undertake 

action to correct noncompliance in a less resource intensive way than judicial remedies. As 

Illushation number 3 shows, EPA enforcement programs are making substantial use of these tools. In 

FY1988, EPAs enforcement programs issued 3,085 administrative actions. As with judicial 

enforcement, administrative enforcement activity has been particularly high since EPA instituted 

internal management improvements in FY1984, with EPA enforcement programs taking 14,638 

administrative actions since then. This total represents 43% of all administrative actions taken since 

the Agency was created. 

2 
-. I 

~ 

FY ~. 1988 Enfomment Accomplishments -. . Report .~ - ~~ . ... -. 

., ,. , .- 

EPA ADMIN'ISTRAnVE ACIIONS 

FY1977 TO Fy1988 . . .. .- I. .. .. .. , 

.L 

.. .. - -:; - .. .- ,' I. 

.. .. 

.. 

FY77 FY78 FY79 FYBO FYBl FY82 FY83 FY84 FY85 FY86 -87 FY88 

TSCA FIFRA 0 CERCLA 

m RCRA 5 CWAJ m CAA 

SDWA 

lllu5iraJirn3 

.. 

Federal Penaltv Assessments . , 

To comply with environmental regulations, industrial and governmental .institutions must 

allocate capital resources to install pollution control equipment, and they must provide for the 

ongoing expenditures necessary to operate and maintain that equipment. Delaying or foregoing these 

expenditures can pennit an economic benefit to accrue to the regulated entity if his or her competitors 

are making the expenditures necessary to comply. As part of the'effort to deter noncompliance, EPAs 

enforcement programs\,hafe developed penalty policies designed to a& penalties which recoup, 

any economic benefit that a noncomplying facility has realized, and assess additional penalties 

commensurate with the gravity of the^ violation(s). Since its creation;'EPA has imposed $149.9 

million'< in penalties ($106.5 million with civil judicial actions and .$43.4 million with 

administrative actions). Since the upturn in the number of enforcement.actiom in FY1984, EPA has 

imposed $712 million, in civil judicial penalties (67% of all civil judicial penalties) and $39.1 

million in administrative penalties (90% of all administrative penalties). The $110.3 million ,in 

to& pedties since FY1984 represents 74% of all penalties assessed since the Agency was created. In 

FY1988, records were set in both penalty categories, with $23.9 million in civil judicial penalty 

assessments and $11.7 million in administrative penalty assessments (these totals do not include the 

$15 million penalty in the lodged, but not yet filed, consent decree in the Texas Eastern Pipeline case). 

IhShatiOn 4 graphs the history of EPAs civil judicial and administrative pe~hy program .. in tennS 

of the total dollar amount of penalty assessments since FY1977. . . 

3 
(@ FY 1988 Enforcement Accomplishments Reporf 

FEDERAL PENALTIES ASSESSED 

(Civil Judicial and Administrative) 

FY1977 TO FY1988 

40 

M 35 

I 30 

L 

I 20 

10 

LZ 

0 15 

$5 

0 

FY77 W78 M9 FYBO FYBl FYSZ FY83 IT84 FY85 FY86 FY87 -88 

E! ADMINISTRATIVE JUDICIAL 

IIhrstntm4 

In FY1984, EPA had in place just over 200 judicial consent decrees directing violating faalities 

to undertake actions designed to achieve compliance with environmental regulations. At the end of 

FY1988, the Agency reported that owr 450 judicial consent decrees were in place and being monitored 

to ensure compliance with the provisions of the decrees. Where noncompliance with the terms and 

conditions of the decrees is found, EPA may initiate proceedings with the court to compel the facility 

to live up to its agreement and seek penalties for such noncompliance. EPA initiated 26 actions to 

enforce consent d- dwing FY1988. 

.. Listing 

EPA has pM haeased emphasis on ufiking its administrative auhrities under the Clean 

Air and Qean Water Acts to bar the Federal government from awarding contracts, grants, or loans to 

faa1ities:that have demonstrated a pattern of non-compliance with the regulations promulgated 

under those statutes. This enforcement tool (most commonly referred to as Contractor Listing) was 

infrequently used prior to FY1986, but =A's use of this tool has expanded significantly since the 

Contractor Listing regulations were revised in 1986 and a separate staff was created within the 

Office of Enforcement and Compliance Monitoring (OECM) to carry out the program. In January 1986, 

only three faalities were on the Violating Facility List, but at the end of FY1988 that number had 

grown to 17 facilities. 

4 
FY 1988 Enforcement AccomplishrnentsLReport -. 

1, 

I 

we ludicial and.Admi hi strah 'V e Enforce-t Act ivb 

. .. . . .. Several hundred' thousand facilities are subject to environmental regulation, and the job of 

ensuring compliance and taking actiowto correct instances of noncompliance with federal laws is 

entrusted both to EPA and'to the States through delegated or approved State programs. EPA and the 

States must rely on a partnership to get the job done, with State environmental agencies shouldering a 

sibificant share of the nation's environmental enforcement workload. In FY1988, the States refeired 

904 civil cases to State Attorneys General and issued 9,363 administrative actions to violating 

facilities. Both of these totals represent increases over the FYI987 performance levels. 

STATE JUDICIAL REFERRALS 

FY1985 TO FY1988 

FYE 

1 RCRA 0 AIR WATER 

.I 

.. 

.. r, , 

_. .. . I .. .... . - ,. *STATE ADMINISTRATIVE ORDERS. 

.j. FY1985TOFY1988 . . . .. I!. . . 1' 

I 

5 
FY 1988 Enforcement Accomplishments Report 

ous air pollutants, including epidemiological studies. 

The dt1-t wu twice the amount of the largest 

vinyl chloride settlement previously obtainrd. 

-: This consent decree resolves 

alleged violations of NSPS Subparts J and GG pertsining to petroleum refineries. The Subpart J violations 

arose from Conoco's failure to control sulfiw dioxide 

emissions from three new process heaters. The defendantcould haveachieved mmplimcesimplyby~ 

gating its flue gas streams in order to bum only dean 

fuel at the new heaters while continuing to bum dirty 

fuels exclusively at its older, unregulated heaters 

'ces V. EP . ne court Instead , in exchange for a 75% mitigation of the $1 

--ewofaktion113(a) million penalty, ~onoco am to install equipment b ~egion n for alleged violatiom of the that dl -ve sulfur frmn all of its flue gases, resultdioxide emissions per year. The net after-tax value of 

of a property or Conoco's mitigation project ex&s $15 million. 

1I.MAIOR ENFORCEMENT 

LITIGATION AND 

KEY LEGAL PRECEDENTS 

memwtheld that issuanceofthe inginthereductionofatleast3,250-4500tonsofsulfur ' 

ordert,,,pA did not deny mteC due p~ 

law, mr ad it deprive the 

liberty interest protected under the Fifth Amendment. 

Although theorderwasa "finaldefinitivestatementof Us* V. To This case, which inthe AmHspositiow" theco,,,.tfelt that otherfactom, volves thclargPstpmnltypaidforoiolati~ ofvolatile 

&e &v-envs for speedy M~~ organic wmpd mipsion limits, was settled after 

writ of certiorari. The Sixth Circuit had held that the 

United States auld enforce the provisions of a federmerit, against wifying the order as final the us. SUpP3XE COm denied Ford's petition for a 

action subject to judicial review. 

In November 1987, EPA 

entered into a consent deaee with Ashland Oil which 

calls for the company to pay a $95,0W avil penalty and 

alsoinstituteenvironmentalauditing to ensurecompliance with the benzene NESHAP. The emironmental 

auditingprwision is oneof thefirst "c1assic"examples 

of auditing in an air-related consent decree, and involves the development of a plan, a review of the plan 

andadualperformancebyanauditor,prepaationofa 

reportbytheauditor,alongwithaschedule formrrectinganydefiaenaes. The auditor's report is an enforce- 

, , able part of the decree. 

On May 19, 1988, a 

consent decree was entered in this case in which the 

defendantsagreed to pya total penalty of $260,000, the 

largestpenalty in any asbestos NUHAP case to date. 

This case involved multiple and repeated violations of 

the asbestos NESHAP standard during the demolition 

of 39 buildings in Naugatudc, Connecticut 

OnMarch4.1988.amnsent 

decree was entered settling this car against Borden 

Chemicals for $125 million and extensive injunctive 

relief. The defendant had violated several different 

Seaions of the vinyl chloride" at its complex in 

Geismar, Louisiana. A unique featureof the settlement 

is the payment of $250,000 of the penalty to the Louisiana State University Foundation to be used solely for 

thepurposeofresearchin thehealthimpactsofhatardally approvedStateImplementationPlan that had been 

purportedly modified by a state court consent order 

between Ford and state air pollution regulatory authorities. The consent decree, entered on May 9,1988, 

includes a &cation by Ford that it has dosed and 

permanently ceased operating six noncomplying printing lines. Ford will not resume operation of the lines 

until it hasobtained stateopatingpermits Also,Ford 

paid a civil penalty of $1,750,000. 

y. s. v. * In this case, the 

district court held that the government can sue for 

injunctive relief in air pollution cases where a contractor operates property owned by the United States. The 

court also held that the Defense Production Act, which 

compels contractors to perform despite other contractual obligations, does not immunize defense contrac- - tors from violations of the Clean Air Act. 

: In the first arsenic NESHAP enforcement achon filed nationwide, a complaint was 

filed on June13,1988,against Lenox,Inc,forviolations 

of the arsenic NESHAP at its plant in Mt. Pleasant, 

Pennsylvania. Thecomplaint alleges variousreporting 

and recordkeepingviolations, and also alleges that the 

failure to report has prevented EVA from determining 

whether Lenox is in compliance with the applicable 

emission limitations. 

6 
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.. FY'I988 Enforcement Accomplishme+s Report . ~. . . - .. .- . . - ., .. 

v. EP.k 

TheSixthCiit affinned the Administrator'sdecision 

finding Navistar (formerly Intema tional Harvester) 

liable under Section 120 of the Clean Air Act. In its 

appeal, Navistar argued that its ten painting lines were 

either excluded or exempted !from regulation. The 

court rejected all of the petitionefs arguments, deferring in each pse to the Agenqfs interpretation of its 

ownregulations. Inaddition,Navistarargued that the 

Notice of Noncompliance it received was insufficient 

siceit lacked twoof.thereferencedattactunents which 

are required under 40 C.F.R. Section 66.12 The court 

held, howeyer, that jurisdiction to as- Section'120 

penaltiesisconferred uponEPAnotby the regulations, 

butbytheclean Air Act whichrequiresonlyareasonably specific notice. 

JLS. v. Ne w York 

' , . , , . . , I. .. 

The New York City Human Resources 

Administration, Department,of General Services, and 

the City of New York agreed to pay a civil penalty of 

$2oO,ooO in settlement of this action brought for violation of the asbestos NESHAP during renovation of a 

cityshelter. ;. 

'**. - . . -Oil Cn . EPA neg0tiated.a consent decree 

with SheJl Oil Company in connection with violations 

of theNSPS regplations at the Shell refinery and sulfur 

recovery plant (SRU) in Carson, California. Shell was 

required by Califomia,OSHA regulations to take a 

portion of its %U off-line every three years for inspectionswhichwouldcauseaviolationof thefederalNSPS 

regulations unless Shell shut down the entire refinery 

during inspection. To avoid thisproblemin the future, 

EPA negotiated a settlement whereby Shell agreed to 

install a miundant unit at its SRUat a* estiniated cost 

of $15 million. In addition, Shell will pay a civil penalty 

uf and EPA:.l%'A 

initiated, a Wjor;enforcement action against Solar 

Turbines, Inc., for construction pursuant to a Qean Air. 

Act ED pepit, which EPA believed Pennsylvania 

issued without properly requiring Best Available 

Control Tkhnology (BACT) for NOx. The district 

court gmnted the government's motion to vacate an 

earlier Temporary Restraining Order prohibiting EPA 

fmm enforcing its Section 167 administrative order 

against Solar Turbines Inc.,;for construction of gas 

turbines which, in EPA's view, lacked bestavailable 

conlrol technology. The court concluded that the Section 167 order was a fiMl agency action (the first such 

decision by a courfl and, therefore, judicial review'was 

proper only at the circuit court level. On December 6, 

1988, the Third Circuit heard arguments concerning 

EPA's authority to we under Section 167 and various 

jurisdictional questions including whether the order 

'. , .. 

.' of%6,900. , ' I ,, 

. , ., ;.,., ' 

.. .. 

constitutes final agency action. In addition, on Decemberl3,1988,thedisctcourt~nted thegovernment's 

motion to amend the complaint to include a Section 113 

claimandagreed tostayfurtheractionpndinga ruling 

by thecircuitcourt Thiscaseislikelytosetmanyof the 

ground rules for PSD enforcement in the future. 

. Thedefendant agreed to 

pay$100,000 in this contempt action for violations ofan 

earlier consent decree governing coke battery emis: 

sions at Southern Coke's fadlity. Southern had taken 

over the coking plant from the bankrupt Chattanooga 

Coke and Chemicals Corp., which had been a consent 

decree signatory in an earlier EPA enforcement action. 

When Southern failed to operate the plant in compli-' 

ance kith applicable consent decree requirements, EPA 

filed its contempt action. The $loO,WO recovery repre 

sents almost all of Southern's remaining liquid as*. . ..I 

p: 

.. 

On~Augustl1.1988, 

the Third Circuit Court of 'Appeals grant& the US. 

motion for a stay pending appeal. InMay,theCourt for 

the:Westem District of Pennsylvania had issued an 

opinion and order that modified the consent dem% 

which applies to the coke batteries at the Monessen, 

Pennsylvania, facilitjr. The modifications would allow 

Sharon Steel, which has purchased the batteries, to 

operate them without controls for six months while 

controlsareinstalled. Theoriginal consent deck with 

Wheeling-Pittsburgh required completion of controls 

in 1985. This disbict court decision raised Severd 

important issues,, including the viability of EPA's 

standard "successors mZ assigns" language which is 

used in most, enforceinent consent decrees. 

0n.October 12, 1988,'the Third Circuit d~ 

&sed of the appeal in favor of the ,Govemmenf by 

granting the motion for summary reversal of the May,,- 

1988,'order. The Third Cirhit's opinion implicitly 

enforced the "su~essors and assigns'' provision of the 

consent decree and firmly held that economic considerations werenota permissiblebasisformodifylngthe 

consent deuee. Sharon Steel proceeded to' install the ' 

controls prior to opting the batteries on December 

28,1988, and the.District Court approved consent de ,- 

Cree modifications agreed to by the Government and 

Sharon Steel that resolve certain other technical issues 

' relating to Sharon's operation of the installed controls 

and its achievement and demonstration of complian&, 

with applicable standards ' ! 

., I , -, 

, 

.. 

7 
~ 

FY 1988 Enforcement Accomplishments Report 

Oil Ca: In the 

8 

bile Source Propram 

A settlement was reached in December 1987, between EPA and Bulk Oil for a $12 million 

civil penalty and the retirement of 50 million grams of 

unlawfully mated lead righk. This case resulted from 

an audit conducted earlier in 1987, which uncovered a 

scheme of mineporting unleaded gasoline as leaded in 

violationof thelead phasedownregulations nlis was 

the largest penalty collected for a m'olation of this 

kind. Theremedialeffortsunderta~byBulk,induding the purchase of the 50 million grams of lead rights, 

were worth between $1 5 million and $25 million. 

: In a case involving over 103,ooO 1985-87 

model year lightduty trucks, Ford agreed to recall the 

vehicles and pay a fine of $6O,KO to settle an enforcement action based on the manufactum's failure to 

produce trucks which complied with their certificates 

of conformity. The violation involved a warning light 

designed to remind the vehicle owner to replace the 

exhaustgasredrmlationEGR) valveafter60,Wmiles 

of use. The EGR valve is an important emissions 

component in the control of oxides of nitrogen emissions. 

After an extensive investigation, a 

$148,ooO settlement was reached between EPA and the 

auto manufacturer for alleged violations involving 

failuretoreportdefects whichoccurred duringprcduction and improper applications for certification The 

company agreed, as part of the settlement, to implement a compliance manual and employee education 

programdesigned toaddresstheconcernsraised bythe 

Agency in the case. 

Clean Water Act (CWA) & Safe Drinking 

Water Act ( SDWA) Civil E- 

-Gold Cp. : On November 3,1987, Judge 

Fitzgmld entered the consent decree in this Clean 

Water Act placer mine case. The company is now 

subject to a specific compliance program and must pay 

a avi~ penaltyj of $100,~ plus interest. nis is the 

lagest penalty mer assessed in a placer mine case. 

On January 25,1988, the 

Federal district court in Colorado entered a consent 

d-resolvingEPA'senfo-ent actionagainst Arc0 

for unauthorized konsmction of an underground injection well near Ignacio, Colorado. The decree impod a penalty of $47,500. 

aftermathofa3.9milliongallondiesel fuelspillinto the 

Monongahela River on January 2,1988, the US. and 

Pennsylvania lodged aconsent decree with thecourt on 

July 6,1988, which addresses a comprehensive cleanupof thesite,includingsoilandgroundwaterremediation, a continuing obligation to perform downstream 

clean-ups as needed, to fully test all tanks before resumption of operations, to amend its SPCC Plan, reap 

plyforappropriateNPDESPermits,stacktestitsMpor 

recovery incinerator, perform an environmental audit, 

and reimburse the federal government for approximately $68o,CXlO in clean-up oversight expenditures. 

-4tl A consent decree was entered 

in the Eastern District of Pennsylvania resolving EPA's 

enforcement cas^ against Atlas Powder, an indushial 

dired discharger who had been in violation of its Clean 

Water Act National Pollutant Discharge Elimination 

System (NPDES) permit. The consent decree imposed 

a penalty of $84O,W. 

U.S.V. EPA'slawsuitforviolations 

of "DES permit effluent limitations was settled in 

Fy1988. Chevron paid a cash penalty of $1,.500,OOO. 

US. V. Devon ' : OnOctober7, 

1987,JudgeBrooksen~theconsentdecreebetween 

EPA and Devon Energy Corporation, resolving EPA's 

enforcement action against Devon for a violation of the 

undergroundinjectioncontrol(UIC)rrgulationsunder 

the Safe Drinking Water Act, the first such decree to be 

entered. EPA broughtenfomment action against Devon 

Energy Corporation for failure to notiry EPA of its 

transfer of certain underground injection wells to anotherparty inviolationof thenewregulationspmmulgated under the Safe Drinking Water Act. Under the 

terms of the decree, Devon agreed to pay a $5poO fine 

for this violation. EPA also sued the transferee of the 

wells, Centaur Petroleum Corporation, for other violations of the UIC regulations, and the case against that 

defendant remaim in litigation 

On March 10, the United 

States lodged in court a settlement in a Region WI UIC 

case against Grace Petroleum calling for thepayment of 

a $55,000 civil penalty, the largest obtained in a LIIC 

case, to date. The case was based on the defendant's 

conducting unauthorized injjon activity. Prior to 

settlement, the defendant had taken necessary corrective action regarding its opating requirement and 

had obtained the requisite operating permit. 

: On March9,1988, EPA and Inland 

lodged a consent order in the Northern District of 

Indiana resolving a complaint EPA filed principally to 

address defiaent laboratory practices that violated 

.. 
FY 1988 Enforcement Accomplishments Report - 

Uv.Mid- lnthis 

civil action, thecourt held that in thecontext of theSafe 

.. Inland's "DES permit conditions. Inland will pay a 

$100,000 civil WMI~Y. This settlement resoloes EPA's 

fist ciml actid! initiatedprh3pally to address laboratory pro&duie violations. .The resolution demonstrates to other permit holdersthe importank of submitting acccirate effluent information. 

ILS, 0. Paul Vp 

In the first jury verdictrenderedina CWASection404wetlandscaseinthe 

aftennathoftheTuIldedsion (seediscussionof theTull 

case on page lo), a jury retumed a verdict of liability in 

November 1987, finding that defendants had illegally 

filled3-1/2to7acresofwetlandswithoutaSection401 

permit. .After 1/2 day of trial before the court in 

:'September 1988, the defendants consented to the 

Government% d-nd for'restoration of 6.6 acres of 

wetlandsand a$S,MX)dvil penalty. TheCourtwill hold 

the docket open until a Consent Decree incorporating 

the agreement read into the record can be drafted, 

executed and approved. Althougg.the Govemmenfs 

costs in proving the case were great, the case proved 

twqimportant points: that EPA can prevail in jury 

trials, and that the Government will not abandon a 

legitim& enforcement action short of an acceptable 

resolution. 

3LS, v. LTV SW Of the 12 Regon V CWA consent 

decrees entered in court this fiscal year, the LTV Steel 

: case is particularly noteworthy because it involved a 

settlement with'a company currently in bankruptcy'. 

7he case was brought against LTV Steel Company's 

plants in Ferndale, Michigan, and Clcveland, Ohio, for 

failure to m&t categorical pretreatment requirements 

at the two plants. During thenegotiations thecompany 

implemented the production changcs and controls to 

bring the plants into compliance. The consent decree 

requires the mpany to maintain compliance and to 

payafineof$45O,MX):Ofparticularnoteis the fact that 

-theconsentd&spedfied that $300,000of the fineare 

:post-petition penalties which are immcdiatelydueand 

owingand not subject tobankmptcyprocdings. The 

remaining $150,000 is considered a pre-petition penalty which will be paid as part of the bankruptcy 

.settlement .i i. '. 

.. I ~, Y 

-. 

. ,. .. . .: .. 

.. ! 'I 

Drinking water ~ct, "human consumption" of water 

-5ncludesuses such asbathiig, mking,and dishwashing and not merely the use of water for drinking. The 

court also rejected the defandant's argument that the 

Govemment must show that illness has &ulted from 

contamination of a Public Water Supply System: The 

court held that the widespread contamiiiation-of the 

system with organisms which are accepted indicators 

of the potential for the spread of serious disease in an 

untreated water system presents "imminent and substantial endangerment" in the context of the SDWA. 

This decision was upheld on appeal. 

yS.i. Eaward Lum * Aconsentd&eewas 

entered in the Eastem District of Virginia resolving the 

government's claims against Chincoteague Island real 

estatedeveloper Edward LunnTull for violations of the 

,Clean Water Act stemming from his wetlands filling 

activities on the Island. The consent 'decree resolves 

claims regarding several sites on the Island which had 

.been the subject of four pr6vious actions litigated to 

judgment in favor of the United States, appealed and 

remanded for trial by jury of the ovil penalty claims, 

pursuant to the US. Supreme Courl's decision in the 

first of four cases. The consent d- requires the 

payment of $25,MX) in avil penalties, which have been 

paid, and the &onnection of a blocked waterway, the 

-removal of tide gakblocking tidal flow into wetlands, 

the creation of new wetlands,and partial &torationof 

a filled site. . 

NATIONAL MUNFPAL POW 

US. v. The C Aconsent 

decreebetween theUnitedStatesandtheCityofBaton 

RougewaslodgedonMarch3,1988,andentered bythe 

court on October 6, 1988. Baton Rouge was fined 

$750,MX)forisfailuretomeetthestatutorydeadlinefor 

secondary treatment as required by its "DES permit, 

the largest cash penalty assessed to date under the 

consttuction of treatment faahties costing approximately $288 million. 

c 

_I 

i, 

1.. 

.. . .. ..~ 

National Municipal Policy. The decree also require .. 

.. 

. .. and Sa nctuanes Ab 

-ahve Cornul- (MPRSAL : Region 11 is 

sued a seriesof admirhrative complaintsagainst nine 

sewerage authorities and six ocean-going transporters 

under the MPRSA (the Ocean Dumping Act). The 

authorities and transporters violated their permits by 

dumping sewage sludge too quickly and on improper 

courses to the 106 mile dump site. Thc penalties proposed total over $1.25 million. 

Bpston Harbor Clek: In thi Boston Harbor case,, 

Region I focused on overcoming obstacles to compliance with court-ordered schedules in three key areas 

acquisition of staging areas for use during the ppcoming construction of the new treatment plant, the program for management of sludge, and relocation of the 

prison on the site chosen for thenew treatment plant. 

During FY1988, the Massachusetts Water..Resources 

Authority (MWRA) reached an agrkent allowing 

:i ; , , ' ' use of the Quincy Shipyard as a staging area on the 

South Shore of Boston, and leasing a site on the North ... 

.. . .. 

.L ' 

.. 

1- . . .. .. 

9 
~ ~~ 

FY I988 Enforcement Accomplishments Report 

Shore. The MWR4 also reached agreement with the 

City of Quincy on p-sing sludge at the shipyard 

from 1991-1995, a key breakthrough for the sludge 

management program. In addition, the Region succgsfully negotiated a schedule of interim steps to 

ensuremeetingthe ~,1991,deadhe for terminating sludge discharges. With respect to prison relocation, the district court issued an order requiring the 

relocation by December, 1991. Lastly, the Region re 

solved the issue of past penalties The defendants 

agreed to pay a cash penalty of $425,000 and place 

$2poO,ooO in a Boston Harbor trust fund for mitigation 

Pro*. 

A consent decree was 

entered in the district court for the district of Utah to 

resolve the complaint against the Central Valley Water 

RedamationFacility Board and theseven local governmental units in Salt Lake County, Utah, that form the 

Board. The complaint alleged NPDES violations including effluent limit violations, failure to submit 

approvable pretreatment programs, occurrence of 

prohibited bypasses, and reporting violations. The 

consent bee requires that Central Valley be in compliance with all permit effluent requirements except 

nitrogen/ammoniabyJulyl,1988,and tobeincompliance with the nitrogen/ammonia standard by July 1, 

1989. The agreement also requires that four satellite 

treatment facilities connect into Central Valley by July 

I, 1988, and that Central Valley submit a regional 

Pretreatment program 

V A consent decree 

wasenteredonJune2,1988, toresolvea civilcomplaint 

against Jersey City, New Jersey. Settlement negotiations with the four other municipalities in Hudson 

Comty(Bayonne,Hotoken, WestNewYork,andNorth 

, Bergen)arecontinuing. Thecomplaintsagainst thefive 

municipalities alleged serious and long-te~m violations of the CWA for the discharge of untreated and 

undertreated sewage and wastewater in to the waters 

surrounding Hudson County, including the Hudson 

River,NewarkBay,and theKillVanKull. In the Jersey 

City consent deaee the Government obtained a penalty of $5OLl,CNM and an agreement that all wastewater 

flows will be diverted to the Passaic Vallcy Sewerage 

Authority by December, 1988, to receive adequate 

pollution treatment before discharge. 

US. v. Kw West ' . A conscnt dmee was 

lodged in the Southern District of Florida on July 18, 

1988,toresolvethegovemment'scivil complaint against 

the City of Key West, Florida. The complaint alleged 

that Key West did not have a treatment system in 

operationatthetimeof thecomplaintand that thecity 

wasdischargingapproximtely6 million gallonsa day 

ofrawsewageintotheAtlanticOcean. Inaddition, the 

complaint alleged that the City was in violation of six 

administrative orders and a State Consent Judgment. 

The consent decree requires the City to select a site, 

complete design and construction of a primary and 

secondary treatment facility, and achieve compliance 

with applicable pollution discharge limits. A civil 

penalty of $6oo,ooO and requirements to rehabilitate 

various parts of the sewer systems are also required by 

the decree. 

m. v. PRASL . EPA and the Governor of Puerto Rco 

announced an agreement on April 20 resolving federal 

enforcement claims against the Puerto Rim Aqueduct 

and Sewer Authority (PRASA) for violations of federal 

water pollution control requirements at a number of 

sewage treatment facilities in the Commonwealth of 

Puerto Rico. The agreement would require PRASA to 

pay a $2 million civil penalty for past violations and 

deposit $7.9 million in an escrow account to fund 

various corrective action projects to address deficiencies. The agreement would revise an existing court 

order by establishing new schedules under which 

PRASA would install or upgrade water pollution control equipment at its facilities and implement a program for properly treating pollutants from industrial 

wastewater discharged into a number of sewage treatment facilities. The agreement contemplates that the 

Commonwealth will help finance these pollution control improvements through a newly-created "puerto 

Rim Infrastructure Finance Authoritf' @TUFA). The 

agreement requires enactment by the herto Rican 

legislature. 

Comurehensive Environmental RComuensahon - and Liabllitv Act (- 

%and n Reco verv A& 

. .. 

RCRA) Civil Enforceme& 

k&&pions Cw : On September 30, 

1988, Region I issued the first Cmil administrathe 

complaint in the nation under SPdion 109 of CERCLA 

(for a Section 103 violation) and Section 325(b) of the 

Emergency Planning and Community Right-to-Know 

Act of 1986 (Title III). EPA alleged that All Regions 

Chcmical Lab, Inc., of Springfield, MassachusetG, had 

violated Section103ofCERCLAbyfailingtonotifythe 

National Response Center of a release, and Section 304 

of Title 111 by failing to provide written follow-up 

emcrgcncy notice to the local community emergency 

coordinator. The Region ad a civil penalty in the 

amount of $25,000 for the violation of Section 103 of 

CERCLA. The Region also assessed a penalty in the 

10 
'3i' , 

FY 1988 Enforcement Accomplishments Report - 7 

.. *. dfl . .. 

amount df $%,ooO for the first day'of theTitle 111 viola- . The Agency 

tion and $500 per day for each day thkreafter until the successfully. litigated and settECR4 Loss'of 

'. . .~ -.' .Interim Status (LOIS) cases involving electroplating 

' the 

US;'v. BFIkECOS: On August 12,'1988, the consent consent decree requires,dosure of-dis 

decree for United States v. Browning-Ferris Industries, posal facilities and payment of $UO,ooO in avil penalChemical SeMces,Inc.,and.~COSInterr$tional, Inc, ties. In Susan B ate% the decree requires the company 

(BFICECOS) was lodged with'the U.S. District Court .io implement groundwater monitoring at its previfor the Middle District of Louisiana. Under the demee, ously-dosed surface impoundments and to pay a avil 

thedefendants will pay$25 millionin settlementof this penalty of over$l97,ooO. .Theminville 

:action, brought for .various RCRA violations at the settlement also resulted in a penalty of$=- 

'defendants"commeraal hazardous waste treatment, as closure of the facilitfs surface impoundments. The 

storage, and disposal facilitl in Livingston, Louisiana. Stanley and Plainoillepenalties represent the largest 

The settlement r&esentsdhe highest penalty wer ~mjlpenalty~mountcollectedinaRCRALOIScase to 

obtiined'in a RCRA judicial don. In addition, the date. 

defendant will conduct certain measures to come into 

full complian&.with RCRA, including the installation m. v. Con-n Chem ical 1 In April 

ofanum~rofgroundwatermonitoringwells,and will 1988, the court approved acom=ttling this 

conduct an.en~ronrnenta1 audit for the facility. . CERCLA Sections 106 and 107 and RCRA Section 7003 

action. The consent decree requires the four original 

-ten 'm S 

"requid notice is filed. 

. faalitieslocated inconnecticut. In 

., ,, ., , .. ,. . . . ' r " - . , 

. . . , . 

government and representatives of several groups of Superfund of over.$2.1 million. Site remediation, inPotentially Responsible Parties (PRPs) associated with volving site surface cleanup and construction. of a ' 

the case. This comprehensive settlement 'kith the groundwater extraction and treatment system,.is exmaprpartiesin thecase,incombinationwithearlier&. pected to cost over $20 'million. This settlement conminimis settlements and Administrative Consent cludes one'of, the longest running .hazardous waste 

Orders,willresultinrecoveryof$4&1millionoutof the cases. Since it was initiated in1980 under RCRA (and 

$585 miliion ex*ed to be incurred in connektion later amended to include CERCLA counts), the litiga- 

~ tion of this case has resulted in a number of favorable 

legal precedents on constitutional, pint and several 

The settlement calls for the PRPs to perform liability, and imminent.and substantial endangerment 

with the four Cannons ca& sites: 

remaining response actions at three of the sites'in- issuffi: , .... 

volved in the case, including a removal action at the 

I ' 

.. 

.. I 

Cannons Engineering Coiporation Plymouth, Maw-. U.S.dson R : Aconsentdm 

chusetts, site, the remedial action in the Re& was entered intoxmplaint filed against 

ord of Decision for the Cannons Engineering Corpora-. ' Hudson Refining Co., Inc., Cushing , Oklahoma, purtion Bridgewater, Massachusetts, site, and a remedial suant to Sections 3008Caj and (g) of RCRA. At the time . 

actionconsistentwith'animpendingproposaltoAmend thecomplaintwasfiled,HudsonRefiningCo.,Inc:,was 

the Record of Decision for theTinkham'sGaragesitein in bank+ptcy, having filed a petition in January 1984 

Londondeny, New Hampshire. The value of these for Chapter 11 Bankruptcy Protection. The final conresponse actions is estimated to be $16.1 million. In sent dqeeembodied,an earlier partial consent decree ~ 

addition,thePWs&llpayanetofapproximately$l7.1 that required Hudson to mme,into.compliance 'with 

million in +st costs and setkment premiums in con- specified -interim .status standards, pay $100,033 in 

nection'wim'thefourth site in thecase, theCilson Road settlement of penalty claims, and.gxnplete an investisite in Nashua, New Hampshire. pis Comprehensive gation of its entire Cushing, Oklahoma, facility pursUsettlem&t.accompanies two earlier de minimis settle- ant to RCRA Section 3008(h). 

. _,.LA 

small volume generators), which are expected to re The final Consent Decreeand,Workplan estabcoveranadditional $13.4 million: Also, three previous lished correctiveactiontaskand deanupstandardsfor 

administrative 'mnsent orders have been negotiated remediation of hazardous wete/hazardous constitu- 

~tithvanousPRPsinthecase,resultinginperformance ' ents releases at,the faality. It also provides a mechaof $1.5 million in response actions at three of the sites: nism to guarantee payment of up to one milliondollars 

. . and provide the Defendant an ongoing obligation to 

' meet RCRA financial. assurance requirements. ~e-'. 

cause of its bankrupt status, Hudson's commitment of : 

.. , 

. . 

I. ments J in the case (including a settlement covering 313, 

. I .. 

,. 

ii 
FY I988 Enforcement Accomplishments Report 

over two million dollars for investigation and cleanup 

of the facility represents an important prioritization of 

environmental claims and liabilities in a banhptcy 

proceeding. The settlement is also important in that it 

is one of the first mquiring both RCRA faality investigation and corrective measures. 

U.S.v.InmarAsswates.Inc : Inmid-March,aconsent 

decree was negotiated with Inmar Associates to resolve 

an action for failure to comply with a WCLA Section 

106 order issued to Inmar by EPA. The consent decree 

was lodged in district court. The decree requires that 

Inmar make a lump sum payment to the United Stab 

of $545,000 shortly after the decree is filed. This litigation is significant in that it resulted in the largest 

penalfy ($315,000) imposed by EPA upon any party 

pursuant to Secfion 106(b) of CERCLA to date, and 

resulted in a 100% reimbursement to EPA of its re 

sponse costs (approximately $152,000) plus interest. 

u v. IT A comt decree was entered 

into underRCRASection3) forthelTCorporation's 

BakerfaalityinM,Califomh,in thefirstcasein 

the nation that enforced Serfions 3015 and 3004(0) of 

RCRA (minimum technology requirements for surface 

impoundments). ITBakerwasrequired tocloseseveral 

non-complyingsurfaceimpoundments. In addition,IT 

Baker agreed to pay a $26O,ooO ad penalty. 

Love Can- . Bydecisionandorderdated February 

23,1988, thecourt granted thegovernments' motion for 

partial sum judgment under Section 107 of CERCLA finding Occidental Chemical Company strictly, 

jointly, and dy liable for remedial costs recoverable under that statute. The costs were incumd by the 

United States and the State of New York in connection 

with the release and threatened release of hazardous 

chemicalsfromtheLoveCanal landfil1,indudingthose 

recoverable costs incurred prior to the enactment of 

CERCLA. 

USvMan- OnMarch18.1988, 

the District Court for the Northern District of Illinois, 

entered a consent decree settling litigation between 

EPA and Manville Sales Corporation, Waukegan, Illinois. The consent decree requires Mandle to imple 

ment Remedial Design/RemediaI Action (RD/RA) as 

contained in the Record of Decision (ROD), with the 

estimated mst of the RD/U estimated to be $5 million. 

The decree also requires Manville to pay all past and 

future oversight costs, including approximately 

$1oO,wO of past EPA indirect costs. The Manville facility is a manufactwing plant with a 56 acre, 30 feet high 

asbestos scrap pile on the premkes This pile is immediately adjacent to Lake Michigan and Illinois Beach 

State Park, an eculogically-sensitive preserve. Manville has been disposing of scrap materials containing 

asbestos at the faacility since 1922. Atop the pile is a 

roadway system, a 33 acre wastewater settling basin, a 

system of waterways leading to the basin, and three 

disposal pits, including a friable asbestos pit. The 

primary featureof theROD consists of plaanga 24-inch 

coveronscrapwastematerialsdeemed thickenoughto 

prevent "freeze-thaw" effects or "upfreezing" of asbestos partides for a minimum of 100 years. 

eTownsv EPA 

entered into a mixed funding consent decree with 69 

PRPs to clean up the McAdw Kline Township Superfund site. The Deaee was entered by the US. Federal 

District Court for the Eastern District of Pennsylvania 

in June 1988. The United States also filed suit against 

nine non-settling parties in June, 1988, to recover EPA's 

past costs ~$soO,OOO) and mixed funding expenses. The 

McAdoo Site is approximately eight acres. The site and 

adjacent areas were used extensively for deep and strip 

mining, and for a period of four years was used as a 

facilitytoincinerateandprocessindushial wastes The 

ownersabandoned thesitein 1979 leaving 7,000 drums 

of waste on site and significant soil contamination. In 

1981 and 1982PRPsremovedthees~ted7,~drums 

from the site. A subsequent RI determined that high 

levelsof organic soil contamination remained in the site 

soils In the settlement, 69 of 93 PRPs agreed to perform 

the RD/R4 which entails a mine subsidence study, 

additional soil sampling program and a determina tion 

if residual soil contamination exceeds soil criteria established by EPA. EPA will p"ed to judgment 

against viable Non-Settling PRPs for past cost and of 

oversight costs. 

Thisaccess 

case was filed in federal district court on February 12, 

1988. This case is notable fro mother accessca sesin that 

the NSL is an ongoing landfill operation, and EPA's 

requests for access to perform predesign tasks related 

to the remedy for the site includes permanently closing 

down the business. 

ARCRAadminishativeseettlementunderSection3OWa) wasreached with theowners 

of the Pepper Industries, Inc., facility in Ewa Beach, 

Hawaii. Under the terms of the agreement, the owners 

of the underlying realty, the Estate of James Campbell 

and an intermediate lessee/lessor holding a long-term 

leasehold interest at the Pepper facility, will perform a 

RCRA dosure at the site. The operator of the facility, 

Pepper Industries, filed for bankruptcy in 1984 and 

defaultedonitsreorganization planin 1986. Underthe 

reorganization plan, Pepper was to fund its closure 

trust fund. Recently, Pepper was convicted of making 

a false statement to the federal government concerning 

disposalofhazardouswastefor theUS.Navy. Pepper's 

President is currently serving a jail sentence and the 

12 
' P.-? 

FY 1988 Enforcement Accomplishments Report GI .. 

com*ny will likely bi? for& 'into total liquidation. 

.This settl-t is significant in that EPA was able'to 

..obtain a clean up commitment for a RCRA fan'lity 

from absentee owners who had'no contact with.the 

day-to-day operations of the hazardous waste fadity. 

&-Solve-Se- 'On March 4: 198& Region I 

proposed a Nonbinding Preliminary Allocation of 

Responsibility WAR) under Section 122(e) of CER: 

CLA for use ir.the,Remedial Design/Remedial Action 

spxial notice negotiations forthe Resolve si te in North 

! DartmouthJAassachusetts: Thiswas thefirsth'BARin 

thecountry. TheNBAR waspreparedbecause theissue 

.of how to allocite the cleanup costs for PCBs, which 

were disproportionate to cleanup costs of the other 

.wastes at thesite, had caused a division among the 

approximately 320 PRPs. 'Negotiations based on the 

NBAR produced .an agreement in principle in mid 

September, 1988. Under the skttlement, the government is expected to recover $92 million in past costs 

,spent at the site and receive'$233 million toward the 

* .>{ ' ' ., , , ,.. 

. .. , .- . . . 

. .. cleanup of the Re-Solve site.' .. 

.. 1 .. . . ,,. ' .' .. 

L Den VPr : OnFebruary 

1;1988,.the consent decree;signed by the Army, EPA, 

the Department of the Interior, the Agency for Toxic 

Substances 'and Disease Resky, DOJ and Shell Oil 

Co.,waslodged in theU.S.DistrictCourtforiheDistrict 

of Colorado. .The decree resolves a 1983 civil action 

between the Army and Shell and requires performance 

'of 13 interim response actions and an on and off-post 

RVFS and remedy. The Army estimates the cleanup 

will cost between $750 million and $1 billion. 

ILS. v. Seafab Metit- On June 2,1988, 

EPAobtained SummaryJudgmentagaintSeafabMetal 

Corpo&on of Seattle for its failure to comply with a 

Federp1:Administrative Order issued under 'Section 

3013ofRCRA. Thisis thefirsttimethata.Federalcourt 

has compelled a defendant to comply with the tenns of. 

Sechon 3013 based solely on the administrative record 

established when the'order was issued. The Order 

requid.Seafab tobegin monitoring, testing;and analysis to determine the nature and extent of hazardous 

waste contamination, and to report the results to EPA. 

Seafab is engaged in lead fabrication and occupies a 10- 

acre site that was previously used for redamation of 

lead from automobile and industrial batteries: Information indicated that the soil at this site was heavilyi 

contamiyted with lead, arsenic, cadmium, and zinc.. 

, ,.,. . 

.. 

sent Order for SCA. Model 

New York. . S€AenteredintoaSection3008(h)Consent' 

order with EPA on September 6,1988. The Model City 

facility has operated since 1942 and ha5 been used as a 

hazardous waste management facility since 1972. Waste 

. :'\J . ~. .. .. .~ 

management activitiei have occurred on'630 ac? oi 

.the site, arid Ctlht facility operations include 

landfilling. aqueous waste treatment,. tank storage, 

surface impoundments, fuel blending, transformer 

decommissioning, and containerstorage and handling. 

Pursuant to the Wh) Consent Order, SCA must 

conduct interim measures, multi-media investigations, 

SWMU characterization; and an assessment of-the risk 

posed by the conhmination. 

us. v. s :On 

August le-. 

settling a CERCLA action in the US. District Court for 

the Southern District of Indiana. The consent dconcluded nearly ten years of litigation and required 

the settling defendants to perfoh remedial actions at 

the site'at an estimated cost of $155 to $18 million and 

to reimburse the government for $6.5 of its $93 million 

in past costs(tobeoffsetbyapproximately$65 million . 

in the Seymour settlement trust fund which is comprised of proceedshma previouscashout settlement). 

1: In thefirst CERCLA case 

nationwide in which the U.S:has settledwith a'bankrupt genrrator forfuture costs,'EPA reached,a settlement.in the Smith International bankrupt4 p&&- 

ing assodated with the site. EPA had filed a proof of 

claim regarding Smith's environmental liabilities at 

several sites, including the Region KDperating Industries site. The'settlement provides fob a $100,350 payment immediately and a total of $5 million over time. 

and Dis~aSBLIrrS,Slte . .on. 

September 7,1988, the United~Statk Court of Appeals ' 

issued ils decision in regarding the 

South Carolina Recycling and Disposal, Iric. (SCRDI) 

site. This eRCLA action was brought against several 

generators of hazardous substances that were &nt to 

theSCRDlBluff Road siteinColumbia,SouthCarolina, 

and against several owners and operators of the site. 

The action sought recovery of costs incurred by the 

government in cleaning up the Bluff Road site.' In a 

landmark dedsion, thedishid court granted the United 

States" motion for summary judgment on the issue of 

liability. Ina subsequent ruling, the district court held 

defendants liable for past response costs of over $1.8 

million. The district court.ddedind, however, to award 

prejudgment interest. The dyfFdants ,appealed the 

liabilityruling,and thegovernment fileda crossappeal 

on the prejudgment interest ding. The court of ap 

peals affirmed the.district court decision on CERCLA 

liability, holding the landowner and generator defen-' 

dants jointly and severally liable for the government's 

response costs. In addition, the court of appeals vacated the district court's decision not.'to:'award the 

government prejudgment interest, and remanded the 

issue to the district court for reconsideration. 

.. .. .. 

, .! 

. 3: .. .. 

.. /I d 

.. ... , 

. .- . 

13 
FY 1988 Enforcement Accomplishments Report 

US V. & S Brass and Bronze W9rksJnc. : On Toxic Substances Co ntrol Act (TSCA)l& 

of South Carolina entered the final order in United 

States v. T k S Bras and Bronze Works. The case was 

January 27,1988, the U.S. District Court for the Dishict Federal sectlade .. F .. ent ade Ad Enforcement 

the first, and so far only, Zoss of Interim Status" 

topay$194,OCOinavilpenaltiesand tocomplywithall V. Alve ervice C- On Janu- (L0IS)crWtogo to tnal. ThecourtorderedTkSBrass 

applicable RCRA dosure and post-closure require- ary 5,1988, the Us. court of Appealshanded down an 

important decision of first impression upholding a 

lowercourtruline,thatEPAhadtheri~ttouseTSCA men& 

Irms World hhssJwz In N1988, pursuant to a 

consentorderissuedby~onWunderSeaion30(a) 

of RCRA, TWA agreed to pay a civil penalty in the 

amount of $lOO,ONl.TWAalsoagreed to submit closure 

and post-closure plans; install and operate groundwatermonitoringperformenvironmental auditsat TWA's 

mapr facilities located at the St. Louis Lambert Field 

Airport, the New York Kennedy Airport, and the Los 

Angeles Airport; assess compliance with applicable 

federa1,stateandlocalenvironmentallaws;and engage 

in specified environmental enhancement projects. 

PEPAreached 

agreement with seven PRPs involved in the Tybouts 

Coma Landfill Superfund litigation in a mixed funding settlement under which RD/RA operations at the 

site in New Castle County, Delaware, will be privately 

conducted.Underthetermsof thesettlement,thePRPs 

will undertake design and construction of a remedy 

selectedbyEPAinaRecordofDecisiondatedMarch6, 

1986, and which will involve consolidation of two 

landfills, construction of a multi-layer cap to eliminate 

vertical infiltration into the remaininglandfill, installation of a sub-surface drain system to prevent lateral 

migration of groundwater through the landfill, and 

implementation of a pumpand-treat system designed 

to address an offsite contaminant plume. Estimates 

place thecost of this rexnedy atbetween $20million and 

$60 million. The settlement tenns require the signatories to contribute a total of 93% toward the costs of the 

remedy. Further, EPA is reviewing four de minimis 

consent deaees executed by fourteen third party defendants in the Tybouts litigation. The de minimis 

settlements, when finalized, will generate approximately $1.73 million. The Government's recovery be-- 

tween the main and de minimis settlement is approximately 923%. These developments could bring to an 

end almost two years of negotiation betwcen the Government and the PRPs to resolve a lawsuit filed in 

connection with the Tybouts site in 1980. The site is 

rankednumbcr2 a EPA's National Priorities Listand 

is designated by Delaware as a top priority site. 

.. subpoena authozty to investigate all&tions of toxic 

chemical mishandling in Valdez, Alaska. The appeals 

court agreed that TSCA authority may be used to 

investigate all chemid substances, not just Polychlorinated Biphenyls (PCBs) or imminently hazardous 

substances as Alyeska argued, and that EPA can investigate merely on suspicion that the law is being violated, or even if it wants assurance that it is not. 

This decision is very significant to EPA's Enforcementprogram forseveralreasom. First,theCourt 

ofAppealsrejected Alyeska'sdaimthatEPAwasusing 

TSCA for an improper purpose, Le., to investigate 

CWA violations, citing an earlier Ninth Circuit decision that "an independent regulatory administrative 

agency has the power to obtain the facts to determine 

whetherithasjurisdictionoverthemattersoughttobe 

investigated." In addition, the court held that EPA 

"neednot firstallegeaviolationof thelawbeforeitcan 

investigate," since the Administrator has theauthority 

to decide which environmental law is appropriate to 

investigate individual cases Second, the court recognized thatwhereCongresshasgrantedtheauthorityto 

investigate, and EPA follows appropriate procedures, 

subpoenas for evidence relevant and material to the 

investigation will beenforced. 

BASF Corporation and its Inmont 

division agreed topaya$l.3 million penalty for importingorprocessing 11 new chemicalssubstances without 

first notifying EPA. Notification to EPA is required 50 

that it can evaluate new chemicals' potential to harm 

healthor theenvironment. The settlementalso requires 

BASF to conduct a comprehensive TSCA compliance 

audit of 151 of its facilities, and to conduct training 

sessions for employees in the US. and West Germany. 

In the first settlement agreement of its kind, BASF is 

required to certiQ compliance with TSCA at the end of 

theaudit period. In a separate settlement, BASFagreed 

to pay an additional $82500 penalty for notification 

violations involving 10 shipmentsof chemicals in 1984 

and 1985. 

.. 

14 
FY I988 Enforcement Acc -. ~ 

mech v. U.S. : On September 20,1988, US. 

District Court for mode Island issued thefirst district 

court decision sin& the enactment of TSCA in 1976 to 

' address the use of a TSC4 administrative search 

warrant. Theopinionand order supports the Agenq's 

authority to obtain administrative search warrants 

under TSCA, and by infmce other environmental 

statutes, givingtheAgencytheauthority to inspectand 

use an ex parte administrative search warrant.'The 

opinion applies the reasoningof the Supreme Court's 

decision in the Clean Air Act aerial surveillance case, 

Dow Chemical v. US. In this case the court held that 

becauseEPAhasthe~authoritytoenterfacilities 

to make inspections under the Toxic Substank Control Act; the Agency has the - authority to seek 

. an administrative bearch warrant to carry out effecTo develop additional data on the extent of 

. PCB contamination at the site and to document PCB 

releases, EPA attempted to inspect the site in January, 

1988. Boliden refused to allow the inspection and EPA 

obtained a search warrant. The company then sought 

.an injunction in the District Court of Rhode~Island 

to have the cuurt direct the EPA to return all of the 

samples obtained during the inseons. ,The cumpany also asked the district court to'declare that EPA 

lacks the authority to obtain seqckwarrants under 

TSCA because the statute does not explicitly state such 

authority. @liden also challenged EPA's use of:an 

warrant stating that to allow the Agencj.to get 

suchawarrantinfringeduponBoliden'sFourth Amdment rights. It proposed that it WaS necessary for the 

company to have an Opportunity to express its position 

before a warrant was issued to give it an opportunity to 

influence the type of investigation procedures that 

would .& authorized,by.the'tourt for EPA, to use. 

tively the purposes of this statute. . .> 

I. i _1, ,~ _./ ,. ~. 

~ 

., asking that the search warrant be declared illegal and 

1. .. . . . The court deniedvthe argument stating that 

such an adversarial proceeding would "deny the EPA 

the element of surprise" and force a presiding rimgistrate to make "determinations outside his field.of expertise." It stated that such a ''pre-hearing, full-blown 

adversarial proceeding' wouldcausedelay that would 

frustrate the "public purpose underlying TSCA." The 

court also declined to interfere with.the collateral 

adminishativecivil penalty action then pendingbefore 

an EPA Administrative Law Judge, finding it had no ~. .jurisdi.c?ion. , . 2 ,' 

.. ~ ,, 

This action concerned the 

illegal import, sale, distribution in commerce and export of oil-filled portable electric space heaters from 

Italyby DeLonghi. Theviolations wereinitiallydiscovered by Environment Canada. ETA tests confirmed 

that several shipments of heaters contained.oi1 con- 

.,. 

,--.* 

. A. I. 

.. ,omplishments Report 

taminated with high levels of PCBs. The. import .of 

PCBs and PCB items was baMed in 1978. Since these 

heaters .were ?Id, in commerce for home use, EPA 

considd the violations to be serious. EPA issued a 

civil admi&strative complaint for the assffsment of a 

large penalty for these violations. &Lon& entered 

into a consent agrement with the Agency on June 8, 

1988. The agrement requires GLonghi to py a penalty of $500,000 for the illegal import and exprt. In 

addition, DeLonghi will send out notices to 70.000 

warranty card holders, informing them that certain of 

heaters may contain PCBs. DeLonghi will pay for the 

disposii of units returned .to the retailer. A toll free 

phone,number to assist consumers and retailers with 

quFtio&. about the handling and disposal. of these 

.appliances&U:ksetup. Aquality assurance program 

to ensure that future imports ?e PCB free will also be 

established. . ' ,;: .. , 

On September 2,1988, an administrative civil complaint was issued against the Minnesota 

Mining and Manufacturing OM) Company of St. Paul, 

Minnesota,assessinga $1,394,500proposed penalty for 

violatio~ofSedions5and 13ofTSCA. Theviolations 

werevoluntarily disclosed by 3M. EPA is citing the 

company with failing to notify EPA prior to the importation of twochemical substances that were not on the 

TSCA 8(b) Inventory list. The complaint also cites the 

company for falsification of certified statements that 

w&provided to thedistrictdirrctorattheportofentry 

representing.the true compliance of the chemical substances. . . 

.x .. . In thisFIF&%admin- 

-d that Orkin's use of W&", a registered pesticide, constituted misuse of a 

chemical that was "inherently extremely hazardous" 

and imposed themaximum proposed penaltyof $5,000. 

The Judge had found that testimony for the govemmait tobe"'uncontroverted." In thiscase, thecustomer 

and. family. were forced to pamanently vacate the 

home because of chemical contamination. 

~ . :on 

June.'6;.a,consent dm in the Agenfls enforcement 

action against Texas Eastern Transmission .Corporation, d /b/a Texas Eastern Gas Pipeline Company was 

lodged with the District Court for the Southern District 

ofTexas Theprecedentialconsent decieeencompasses 

the largest sing& settlementeuer obtained by t& United 

States against one entity for violation of an environmental statute. 

.. 

.I , ,I 

., 

'. , 

.. . 

.. 

The consent decree requires Texas Eastern to 

pay a civil penalty of $15 million dollars, and to characterize and remediate 89 sites located in fourteen states 

at an estimated cost of $450 million. In addition, Texas .: 

15 
~ 

FY I988 Enforcement Accomplishments Report 

&Stern is required to reimburse the Agency for past UChem-Wood- * On June 

and futurecostsrelated to theinvestigationand cleanup, 

and toconductacompany-wideauditofpipelinefacilities to COW M3B Rule violations. 

. 

CRA/CFRQ& On June24, 

1988, a 15 countRacketeerlnf7uenced Corrupt Organization statute nUC0) indictment was unsealed. Two 

of the counts charged Charles and James Arcangelo 

with a RCRA disposal violation and a notification 

violation under CERCLA in connection with the disposal of mercury in North Haven, Connecticut. This 

case repmsents thefirst EPA joint investigation with 

theDepartmatofJusticeOrganized CrimeShikpForce. 

Inc. (m: 

On January 14,1968, in the United States District Court 

in Seattle, Washington, Argent Chemical Laboratories, 

Inc., Eliot Laurence Lieberman, its chief executive officer, and Beatriz Faith Shanahan, its vice-president, 

entered guilty pleas to Federal criminal charges relating to the illegal distribution of pesticides and veterinary drugs used by commercial fish farms and the 

aquaculture industry. Argent is headquartered in 

Redmond,Washington, and promotes itself as the 

nation’s largest producer and seller of aquatic pesticides. In pleading guilty, Argent became the first 

pestiside mnmrfamcrer, rather than a pesticide distributor and/or applicator, to be successfully prooecuted by EPA under FIFRA criminal provision. 

In 1982, the State of Washington and the EPA 

advised the defendants, in connection with a Stop Sale 

Order concerning Argent‘s sale of its unregistered 

algicide, Copper Control, of the federal requirements 

for the registration of all pestiade products. Nonethe 

less,FAinvestigators determined that the defendants 

continued their sales of Copper Control and other 

unregistered pestiades produced by the company. 

While engaged in such sales, Liebennan, on January 20, 

1985, submitted a written affidavit to state and federal 

authoritis falsely asserting that Argent had not produced or sold any unregistered pesticide products. In 

conjunction with theFIFRA violations, thegovemment 

also established that the defendants were engaged in 

the interstate sale of misbranded veterinary drugs in 

violation of the Federal Fwd. Drug and Cosmetic Act 

(m), and that Argent falsely reported through 

Liebermanto theFDAthat Argent was not manufacturing and distributing one such drug when in fact it was 

doing so. 

2,1988, a federal grand jury in Honolulu, Hawaii returned a onecount RCRA indictment against ChemWood Treatment, Inc., a wood preservative treatment 

firm, and Erle Kitagawa, its vicepresident and general 

manager. The count charges that the defendants from 

July 25, 1985, until September 21, 1986, knowingly 

stored a hazardous waste, the pesticide copper chromiumarsenate, used in the company’s wood treatment 

process, without having a required permit. 

On July 25, Chem-Wood Treatment Company 

and Erle Kitagawa were sentenced in the US. District 

Court in Hawaii after both had previously pled guilty 

to the criminal charge of the ilkgal storage of hazardous wastes. Chem-Wood received a $25,000 fine and 

Kitagawa a SpOO fine plus 100 hours of community 

senrice. The court placed Kitagawa on three years 

probation and required him to see that the additional 

million dollars needed for deanup of the site is expended for that purpose. 

IIS. 

kon 

V. 

and 

p 

MeMissourj: OnJuIy27,198a, theFederalGrand 

-ma and 1- 

Jury in Springfield, Msouri, returned a six count 

indictment naming the above parties. According to the 

indictment, Commercial Metals Co., et al., conspired 

with each other and with other persons from on or 

about January 1983, up to and including May 27,1987, 

to violate theenvironmental laws of the United States 

by disposing of hazardous waste by negligently discharging pollutants from a point source in navigable 

watersof theUnitedStates,andbydisposingofhazardous waste without first obtaining a federal permit for 

such disposal, knowing at the time that they thereby 

placed anotherpersoninimminentdangmofdeathor 

seriousbodilyinjury,theuconductinthearcumstances 

manifesting extreme indifference for human life. If 

convicted of thecharges, Commercial Metals, Inc., could 

be fined up to $2,100,wO together with costs of restitution and clean-up. If convicted of the charges, Harold 

Belcher could receive a sentence of up to 14 yean 

imprisonment and/ora fineof not more thanW,wO. 

If convicted of the charges, James Vermillion could 

receiveasentenreof uptolSyearsimprisonmentand/ 

or a fine of not more than $&?5,ooO. 

m. v. G- : On August 3,1988, 

Gardinier, lnc., a Tampa-- phosphorus mining 

operation, pled guilty to a onecount information filed 

that day charging the company with the failure to 

report to the National Response Center, in violation of 

the CWA, a spill of approximately 40paO gallons of 

phosphoric acid into the Alafia River, which flows into 

Hillsborough Bay, a navigable waterway connected 

.. 

.. 

.. 

16 
withTambEay. ThespilloccurredonoraboutMay2, 

. and required the efforts of emergency response teams 

fromboth Region IV and the U.S. Coast Guard. Investigative efforts by the Region IV Office of,Criminal 

Investigations and the FBI determined that Gardinier 

was the sourceof the spill.Violation of 33 US.C.Section 

. 1321(B) (51, which'served. as a model for CERCLA 

Section 103(b), isa 'kinemeanor, carrying a penalty of 

up' to one year in prison;or a fine of not more than 

$lW,oOO. Atthe timeofsentencing Gardinieragreed to 

be placed onone year of probation, subject to numerous 

conditions. Ahtong thoseconditionswere(1)perfon-ning the restoration of surrounding wetlands a,nd. thc 

creation of an artificial reef in Hillsborough Bay (the 

low pH of the spill caused cxtcnsive' damagc), (2) 

training in environmcntal laws and regulations for 

Gardinier personnel, (3) the upgrading of Gardinicf s 

tankstorageareas,and (4) theagrccment to takc whatever coriective action an environmcntal audit tcam 

recommends for the Gardinier facijity. 

' 

' 

' 

4 , '- ~ 

U.S.ins.7r. and Seaport Bark Supp l-&lS, 

fCB!,Q On May 25, 1988, a fed&al grand jury in 

Seattle, Washington, returned in cleven-count indictmentagainstkaPortBariSupply,Inc.,and itsowncrPresident, Sam Jenkins, Jr: , !&wncounts charged the 

two defendants as second 'ban Watcr Act criminal 

offenders, in violation of 33 U.S.C. Secti0.n 1319(c)(l) 

(the old CWA "dminal provision ,that 'doublcd thc 

" penaltyforsecond CWAconvictions). Bothdcfcndants 

were'also charged with four CWA kounts undcr the 

. 1987 CWA-felony provision, 33 U.S.C. Section 

1319(c)(2)(A), for the knowing discharge of plant wastewater without a permit. These four violations occurred afterenactment of the WaterQuality Act of 1987. 

(This was thefirst CWA repent off&der indictmmt.) 

%July 25,1986, both pled.guilty to a Ch'A misdcmeanor violation (33 U.S.C. Section 1319(c)(if) arising 

. from the unpermitted discharges , .. of . wastewakr from 

the plant's bark chip washing opcrations via an undergroundoverflow pipe intoan adjacent waterway. Aftcr 

those convictions, EPA special agcnts monitored the 

company's CWA compliancc and obscrved that Sca 

Port, after a period of compliancc, had rcturncd to'its ' earlierpracticeof allowing wastewater to flow into thc 

'watenrrdy (perhaps lulled into a false sense of security 

' by the lenient $l,KIO fine for the companyand a $250 

fine for lenkins for their 1986 CWA convicGons). As a 

Office for the hshid'of %ode Island unsealed a 53- 

count indictmentthatcharged twoRhodeIslandcorporations and five individuals assodated with those corporations with a conspiracy involving theillegal trans 

portation, storage, and disposal of hazardous waste. It 

also represents the first NCO prosecution in the District of Rhode Island. Ab, on April 26, federal marshalsarrested the president ofMacDonald and Watson 

Waste Oil Company, Eugene K. D'Allesandk. ,. .' I. 

.. The indictment chargks MacDonald and Watson Waste Oil Company. Narragaiwtt Improvement 

Company, Eugene K.' DAllesandro, Vincent 

Cinqegano, Fran Slade, Faust Ritarossi, and Michael 

OLaughlin, with fifty-one felony counts and two mi+ 

dcmcanorcountsstemmingfromaconspiracy to transport, store, and disposil of liquid hazardous wastes, 

sludga, and waste oilantaminated soils. It isalleged 

that thc two'companies entered into contracts for *e 

removal and ultimatedisposal ofhazardous substances 

and wastcs;whenactually thoschbstancesand wastes 

were buriedbin'ditches, poured in,storm drains connccted with municipal sewerage systems, or mixed 

with ordinary trash for disposal in municipal sanitary landfills. .I 

V : In the 

first successful EPA criminal proskution for Section 

404 wetlands oiolations, on May 4,1988, US. Dishict 

Court-Judge McNaught in Boston handed down sentenc& against Marathon ' Development Corp., and 

Tcrrcnce Geoghegan, Marathon's vice-president, subsequent to their p&dous guilty pleas. Imposition of 

scntcncc awaits resolution of a MITOW appeal by 

Marathon to the Court'of Appeals'for the Fit Circuit. 

Both dcfcndants pled guilty 'to all 25 counts of an 

indictmcnt, filed on April 8,1587, charging them with 

criminal violations of the Clean Water Act (CWA) (33 

U.S.C. Scction 1319(c)(l)) for their'failure to acquire a 

US. Army Corps of Engineers permit to fill a wetland 

tract, as rcquiredby 33 U.S.C. Section 1344. Marathon 

fillcd a 5 to 7 abe wetland within a 117 acre site on 

mcnt in Scekonk, Massachusetts. Geoghegan was 

scntcnccd to a six-month suspendd-prison term, one 

ycar of probation, and was ordered to pay a fine of 

$lO,oOO. Marathon was sentenced to pay a $1~,~ 

fine. 

': 

which it intended to build a shopping mall develop .. 

second offender, Jenkins faces up to 26 ycars in prison r . , , i .' ' 

.. b 

and finks Up to $550,@, or both. Sca Port faces fincs of . 

up'to $550,o00. 

US. v. MacDo nald and Wakon Waste 0 'il Company, 

&I. (KCKA1: In the firsJfedkra I krosecu tion undm the 

;.Racketeer Influenced Corhzpt Organization stahte 

(RIC0)'inooloing the impropei handling of hazardous 

&aste;on April 26, 1988, the Unitcd Statcs Attorney 

. In its sentencing memorandum, 'the govemmcnt charged Geoghegan and Marathon with being 

motivated solely by greed in deciding intentionally to 

violate thclaw(evidencewaspresentedthatMarath0n's 

environmental consultants and the Corpsbothinfomed 

Geoghcgan of the Section 404 permit requirement). 

That mcmorandum asserted that Geoghegan and 

Marathon dccided not to apply for a wetlands pwmit, 

I. ,. .. . . . . 

17 
 ~ 

FY I988 Enforcement Accomplishments Reporf 

because they were aware that a competing shopping resultedinthecouple'sdeath. Pursuant to the Alternamalldeveloperhaduwuccessfullyappliedforapermit tive Fines Act, the judge sentenced Orkin to pay a 

to fill wetlands for a similar development in neighbor- $5oO,ooO fine, with $ISOW of that amount suspended 

ing Attleboro, Massachusetts. Judge McNaught, in upon completion of two years probation and performresponse to defense counsel's assertion that the anceof2,ooOhoursofcommunityservice. 

government's recommendation of imposition of six 

monthsimprisonment,withallbut30dayssuspended, Walt (CWN- : On May 20,1988, 

anda$Z,CXXfineforGeoghegananda$250,000finefor in Seattle, Washington, a federal grand jury indicted 

Marathon, was unduly harsh because no toxic or haz- thePhiladelphia-basedPennwaltCorporation,Inc.,-one 

ardous substances were involved, responded that the of the nation's largest chemical companies, and four 

earth fill deposited over the wetlands was just as toxic corporate officials, for six environmental criminal vie 

to the plant life as any toxic chemical would have been. lations stemming from a January 2,1985, tank collapse 

at Pennwalt'sTacoma, Washington facility. Pennwalt, 

Ocean w: On Robert S. Custer, former corporate vice-president for 

January28,1988,agrandjuryinBos~nhandedupa7~ Chemicals, Franklh M. Shannahan, president of the 

count indictment against Ocean Spray cranberries, Pennwalt Inorganic Chemical Division, and Orval J. 

I&., for misdemeanor and felony violations of the High, manager of the Pennwalt Tacoma Plant, were 

Clean Water Act occumng over a five-year period at its indicted on one count charging a negligent violation of 

MiddleborouRh, Massachusetts plant. The indictment the CWA. The basis of this charge was their failure to 

charges 65 &nts of negligeni dixharges into the 

Middleborough sewer system of untreated process 

waste waters that occurred prior to February4,1987,in 

violation of 33 U5.C. Section 1319 (c)(l) (the old CWA 

misdemeanor provision). Because Ocean Spray had 

not pretreated its p- waters, the low pH of the 

waste caused the Middleborough POrw to fail to meet 

its "DES limitations. Six counts charged the revised 

felony provision of theCWA for knowingviolationsfor 

lowpHdi&rges thatoccurred after theenachrrentof 

the Water Quality Act of 1987, in violation of 33 U5.C 

Won 1319(c)(2), and the last five counts charged the 

discharge of wastewater directly into the Nemasket 

River without an NPDES permit, in violation of 33 

U.S.C. Section 1319(c)(l). The penalty for each misde 

meanor CWA count is a fine of not less than $2$00 nor 

more than $ZS,OCO. Ocean Spray faces up to $1,75O,ooO 

in fineson those70misdemeanorcounts,andunderthe 

. six felony provision counts, which provide fines of not 

less than $5,ooO nor more than $SO,ooO per violation, 

Ocean Spray faces up to $3oo,ooO in fines 

On April 21, 

1988, a federal grand jury in the Western District of 

Virginia indicted Orkin Exterminating Co., on five 

counts of violating the Federal Insecticide, Fungicide, 

and Rcdentiade Act(FIFRA). Theindictmentsstemmed 

from the 1986 deaths of an elderly couple in Galax, 

Virginia, within a week after Orkin fumigated their 

home with Vikane, a fumigant lethal to humans in 

certain doses. On August 8,1988,afederaljudgefound 

Orkin guilty of one misdemeanor violation of FIFRA 

for failing to ensure that the amount of Vikane in the 

house had been reduced to safe levels prior to permitting the couple to reenter their home. After a two-day 

sentenanghearing,thejudgefound that thecouplehad 

.. 

prevent, despite their apparent ibility to have reme 

died the known structural weakness of a holding tank, 

the January 2,1985, spill of approximately 75,OW gallons of a sodium chlorate solution into the Hylebos 

Waterway from the ruptured tank. This is the first 

time an environmental miminal violation has been 

linked to a knowing failurn to perform preventative 

maintenance. 

Pennwalt and Mr. High were also indicted in a 

second count for a violation of the general federal false 

statement statute for falsely underreporting to the US. 

Coast Guard that the spill amounted to 20,ooO gallons 

instead of the actual amount that was three times that 

quantity,andforfailingtoreportthat thespillinwlved 

sodium chlorate, a hazardous substance, which prevented emergency dean up procedures from being 

initiated. In addition, Pennwalt and High were indicted in the third count for a failure to make a timely 

report of the spill of this hazardous substance to the 

Coast Guard, a CERCLA violation. These same two 

defendants were also charged in the three remaining 

countswith theunpermitted dischargeof thechemical 

solutioninto thewaterway viatheplant'sdrainsystem 

during the process of cleaning up the spill. 

-cwM. On 

March 2, the US. District Court in Denver sentenced 

Protex Industries, Inc., following the company's Decemberlll, 1987,convictiononl6countt, three of which 

constituted thefirstconviction under RCRA corporate 

knowing endangmnent. Protex has appealed its conviction on all 16 counts to the Court of Appeals for the 

TenthDistrict. kotex, whosecash assets tota1$3375m 

in wow with theclerk of the District Court aftera sale 

approvedbytheU.S. AttornqsOffice.facesatotalfine 

died as a result of exposure to excessive levels of the 

fumigant. and that Orkin's violation of FIFRA had 

Of$7,60&000based onitsconvictionon thrcecountsof 

RCRA knowing endangerment, eight counts of RCRA 

18 
- .. .. .. . .I.. 

FY 1988 Enforcement Accomplishments Repor# - 

. ~. ~. - .- 

.. unpergitted'storage or disposal,,one count of unpermikd hischap into the water (a misdemeanor becauseitoccurred prior to the1986.CWAAmendments), 

three counts of knowingly makingfalse statements to 

federal, state, and local oficials concerning the nature 

and ,extent of its waste handling activities, and one 

' count of conspiracy to operate a treatment, storage, and 

' . Thecourt,influencedbyProtex'slackofcontrition 'and failure to-accept responsibility for its acts, 

.' meted out the maximum sentence ($7.6 million) pos- t sible under the conviction. But because of..the ' corporation's. limited remedy for the three Protex 

. employees (whom Protex knowingly placed "in imminent danger of death orseriousbpdily injury" by ordering them tohandlehazardouswastes),andbccaur the 

costof thedeanup(whichtheColoradoHca1thDcpartmenthadorderedl'rotex toconduct . ~. twoyearsago) was 

estimated at $2 million, the court crafted.a creative 

remedy whereby Protex was ordered to.establish a 

'$95a,ooO trust fund to compensate the.endangered 

employ? and to pay $44O,odo in fines by March 14, 

with the re'mainder of the $7.6 million suspendcd on 

condition.that the company compiy ,with those two 

' conditions'of probation. Thecompany was ordcrcd to 

payforsitecleanup,and wasallowed touseitsmmaining$1,98O,ooO forthispurpose. Violationof any tcm 

will result in .automatic imposition of the full $7.6 

million fine. 

'disposal faality withouia permit. . . . .. -k I 

e CherrrelS: 

'0- ' ' E. P& (TSCA). On July 20,1988, 

Patrick E. Perrin, former general manager of the de 

funct Martha C Rose Chemic& Co., Inc., Holden, 

Missouri, was sentqnced to two years in a federal. pitentiary orihis guilty plea to one fclony count of,conspiracy to defraud government. , . . ' 

.. 

.? - ~. 

0U.S. v. D wiem (TSCAICWA). On Sep 

tember 21,1988, the Federal Grand Jury of the Wcstem 

'District of Missouri indicted a former employw of 

MarthaC.Roseina32countindictment with falsifying 

and conviring to falsify reprds concerning -the 

company's handling and disposal of PCB wastc. Mr. 

Thomasallegedly falsified recordsand rcports rcquircd 

under the terms of PCB Dispdsal Approvals issucd by 

EPA to poSe as required by ihe PCB regulations. (The 

re$o'rds concern the transportation, storage, dccontamination, and disposal of PCB transformers, large 

capidtors, PCB oils, and PCB contaminated solids). 

Thomas could face a maximum pcnalty of 156 years in 

a federal penitentiary and fines of more than $7 million. 

., 

.. ;" r , .. 

c. 1 (.i , 

.. ,. 

ILS, v. Albert S. Tw (RCRAICERU : onoaoberll,1988,AlbertTuminwassentenced toa two year 

prison term following his April 13,conviction by a 

grand jury in Queens on all three counts of an indictment filed on July 8,:1987, under the howing endangerment provisions of RCRA. This is the$rst comiction of an individual under the RCRA knowingendangerment provisions. Tumin's indictment resulted from 

his purchasein 1985 of three55-gallondrum of ethyle 

ther, a highly eiplosive RCRA-listed waste, used for, 

among other purpoSes, the nianufacture of cocaine, 

from a chemical supplier who had an agreement with 

the Drug Enforcement Agency to report suspicious 

. purchases of chemi&ls commonly used in iiliat drug 

manufacture; Wen' the trakction for which Tumin 

had purchased the ether fell through, he attempted to 

retum.the drums to4he seller, who refused to accept 

them. Upon leaving the seller's premises, Tumin realized he .was being followed by DEA agents; who had 

been ti6ped off by the seller. After he thought he had 

eluded'the.agents,.auring the night of September'l2, 

1985, he abandoned the drums in a lot in a neighborhood in Rockaway, Queens. 

iheindic'tmentchargedT~nwithoneRCRA 

. count for the knowing unlawful trakhrl of a tLizardous waste to an unpermitted faality, one'RCRA count 

for knowingly placing other people in.imminent danger of death or serious bodily injury by his knowing 

unpermitted disposal of a RCRA' waste, and one CER- 

.CLA count for the failure to report the release of a 

'rcportable.quantity'of a hazardous substance to the 

National Responsecenter. Under tlieRCR& transport 

count, Tumin faced a fine of not more ilian,$W,hand 

'up to five years imprisonment, under th~ knowing 

endangerment count he faced a fine of up to $w),ooO 

and up to 15 years imprisonment, and under the CERCLAcounthefaceda'fineofupto$lO,ooOanduptoone 

year imprisonment (theact&cumd beforeSARAraised 

the CERCLA penalty to felony level). 

y.S.v. WelcoP ' 

April 5 guilty pleas, theowner/operatorand hiselect? 

platingajmpany &eresentenced fortheacts charged in' 

a 30-count indictment 'filed on January 29,1988.h the 

U.S. District Court'for the North& District of Alabama. The indictment, which resulted from an FBI 

investigation, alleged that J.C. CoU-ns, Jr., and his 

company, Weka Plating, Inc., of woodvik, Maband; .. 

conspircd to violate CERCLA, RCRA~and. CWA by 

dumping into rural roadside ditches 'electroplating 

rinsewatcrwastesovera nineyearperiod from1978to 

1987. 

.. 

. ..- .\'*. 

a .' .. 

BWLAKWA- 

,, . .. ,~.II,.,. I. 

,. , 

I 19 
... 

... 

., 

.. .- .......... ...... .. . .~. .. .. ,. ..... 

.. 

... . :. 

.... ... .a ... .......... .. .......... . ,, 

....... :.: ...... ?’.... ........ : :; .... .. ,. .. . ................ 

.- . ...... : ......... ..... 

FY 1988 Enforcement Accomplishment. 

Collins was sentenced to serve 18 months in 

prison, was fined $2GQ,OOO, was placed on five years 

probation, and must perform300 hours of community 

service. Inaddition,hemustpay$74,47220to theShte 

of Alabama Department of Environmental Manage 

ment. Foritscorporateguiltyplea, Wdcol’latingmust 

pay an estimated $1~poO in deanup costs and pay 

$14,472.20 to the State of Alabama Department of 

Environmental Management. Collins,theformermayor . of Woodville, had pled guilty to six counts of the 

indictment. Spedfically, Collins pled guilty to the 

knowing disposal of hazardous waste to an unpermitted facility,inviolationofRCRA,thebrowingdisposal 

of a hazardous waste without a permit, in violation of 

RCRA, the knowing transportation of hazardous waste 

without a manifest, in violation of RCRA, conspiracy, 

in violationof 18 US.C.Se&on 373, failuretonotify the 

National Response Center of a release of reportable 

quantity of a hazardous substance, in violation CERCLA, and one count for the willful dirharge of a 

hazardous substance into the waters of the United 

States,inviolationoftheCWA(theacts~beforr 

the enactment of the Water Quality Act of 1987 which 

made knowing and willful CWA violations subject to 

felony penalties). Welcopledguilty to thesamecounts 

as Collins, except the count alleging conspiracy. 

’ 

20 
.. 

.. 

.- .. . ., 

.. FY 1988 .- Enforcement-Accomplishments Report ..~ . 

111. BUIL DING AND ~INTAINING A STRONG 

,NATIONAL ENFORCEMENT PROGRAM 

gram Development _, I 

,: I 

. .. , 

I .. 

SateE PA Enforcement Acreemen-tS '-' .. 

IThe Policy Framework for the State/EPA Enforcement Agreements is the blueprint for EPAs 

enforcement relationship Gth State enforcement programs. Each year the EPA Regional Offices and 

the States negotiate enforcement agreements &tablishing clear oversight criteria for assessments of 

State and EPA compliance and enforcement programs. The agreements also establish the criteria for 

direct Federal enforcement in delegated States (including procedures for advance consultation and 

notification), and theyIput into place procedures for State reporting of management information to 

EPA. .. . 

The most recent revisions to the Policy Framework (1986) more clearly established Federal 

oversight of State civil penalty assessments. . The ,Policy also strongly encouraged greater 

involvement by, State Attorneys General in the enforcement agreements process, communicating on 

priorities and case status,:and planning resource needs. The FY1988 State/EPA Agreements process 

sought to improve Regional consistency in addressing areas covered by the agreements, and reiterated' 

the need for the EPA Regional Offices to reach an understanding with their States on Federal 

facility compliance issues. (For further information contact OECM's Office of Compliance Analysis 

and Program Operations (OCAPO)) 

Penaltv Practices Reuort 

. 

... 

Each year EPA produces a comprehensive analysis of the financial penalties EPA obtained 

from violaters of environmental laws. The report contains an Agencywide overview as well as 

national and regional summaries for each program. The report also compares annual performance 

with historical trends. For FY1988, the report indicates that EPA imposed $23.9 in civil judicial 

penalties and $11.7 million in administrative penalties, both all-time agency bests (these totals do 

not include the $15 million penalty in the lodged, but not yet filed, consent decree in the Texas Eastern 

Pipeline case). (For further information contact OCAPO) 

Timely and Auurapriate E nforcement Responsg 

The Timely and Appropriate Enforcement Response .concept seeks to establish predictable 

enforcement responses by both EPA and the States, with each, media program defining timeframes for 

the timely escalation of enforcement responses. Tracking of timeframes commences on the date the 

violation is detected through to the date whcre formal enforcement action is initiated. The programs 

have also,defined what constitutes an appropriate formal enforcement response based on the MtUm of 

the violation, including defining when the imposition of penalties or other sanctions is appropriate. 

The concept of Timely and Appropriate enforcement response is working well, 'and it has 

provided both EPA and the States with useful objcctive measures of performance which has 

improved the enforcement relationship. Preliminary analysis of FYI988 performance indicates that 

the timeliness of response in the majority of EPA's programs has generally remained unchanged from 

the previous year. (For further information contact OCAPO) 

21 
FY 1988 Enforcement Accomplishments Report 

.. edor mp and Development PIIn FY1988, the Agency completed development of the Inspector Training and Development 

Program. The program was initiated in FY1987 in response to the need for a cross-cutting basic 

inspector training course to teach the fundamentals of conducting inspections to all Agency inspection 

and field investigation personnel, as well as filling the need for more advanced media specific 

training. The Office of Enforcement and Compliance Monitoring (OECM), in cooperation with EPA 

Regional Ofices and the Headquarters enforcement programs, developed the curriculum for the 

training program to ensure that all Agency inspection personnel are able to conduct technically sound 

inspecbons to enhance EPAs ability to determine source compliance and support formal enforcement 

actions €PA Order 3500.1 , signed by Administrator Lee M. Thomas on June 29,1988, made mandatory 

the satishctory completion of basic and program-specific inspector training before any EPA employee 

may lead an EPA inspection unless they have otherwise been exempted based on prwious training or 

. experience. Although the Order does not apply to persons employed by State and Local agencies, 

these agencies are encouraged to establish similar structured programs and to avail themselves of 

EPA training materials. (For further information contact OCAPO) 

EPA has the authority under the Clean Air and Clean Water Acts to assure that the Federal 

government does not do business (i.e.. engage in grants, contracts, or loans) with facilities that have 

demonstrated a pattern of noncompliance with those statutes. In FY1988, the listing program 

addressed substantial new policy questions resulting from the change in the regulations and the issues 

raised by the cases p'ocessed under the new regulations. The program developed several major new 

policies including the use of listing in CAA NESHAP cases, and the resolution of listing issues in plea 

agreements. The program also developed a 140-page manual, the Contrrrcfor Listing Protocols, issued 

on October 7,1987, and developed materials and a training program for compliance and enforcement 

personnel and case examiners. Fily, ConWactor Listing was included as an enforcement component 

in the EPA Federal Facility Compliance Strategy. (For further information contact the OECM's 

Contractor Listing Staff.) 

Stratedes. Guidance. and Initiatives 

EPA continues to make use of the strategic planning process to refine and improve its compliance 

and enforcement strategies. This management tool is designed to promote strategic thinking by senior 

managers, and help them focus on how best to address emerging environmental problems. The written 

strategies and guidance for compliance and enforcement, especially for newer programs, serve as the 

framework for day-today program operations. Highlighted below are several examples of 

strategies and guidance developed in FY1988. 

New Vo-ous Air P-ts ( VHAP) Penaltv Pm 

On March 3, 1988, the Office of Air and Radiation's (OAR) Stationary Source Compliance 

Division, (SSCD) and OECMs Air Enforcement Division (OECM-Air) jointly issued a new appendix to 

the Clean Air Act Civil Penalty Policy entitled "Appendix VI - Volatile Hazardous Air Pollutants 

(VHAP)." This appendix assists in determining the gravity component of the civil penalty 

settlement amount for cases enforcing the National Emission Standard for Equipment Leaks, 40 C.F.R 

Part 61, Subpart V. (For further information contact OECM-Air) 

22 
FY 1988 Enforcement Accomplishments Report - -. 

Policv on Contractor L istine for Asbestos Renovation and Demo1 ition Compan ies. 

On March 11,1988,fSSCD and OECM-Air issued guidance on "Listing Asbestos 'Demolition'and 

Renovation Companies Pursuant to &tion 306 of the Clean Air Act." Under this section, the Agency 

may place a violator of the Clean Air Act on a government-wide list of vi'olating facilities, theTby 

preventing it from-contracting with the government. " (For further information contact OECM-Air) 

New Source Re view Guidance "I . _. 

,. .. .. !, 

-. . 

' ,t , .: 

. .. 

.. 

On July 15, 1988, SSCD and OECM-Air )ssued 'Trocedures for EPA' to Add;& Deficient New 

Source Permits Under the Clean Air Act" toassist in the issuance of peFts for major new sources and 

major modifications under both the Prevention of Significant Deterioration program and the 

nonattainnytt New Source Review:program. The guidance sets forth proc@ures to be.followed .when 

permits are issued either directly by EPA, or EPA-approved state programs, or by states pursuant.to 

delegations of authority from EPA. An appendix of model forms is alsb included. (For further 

information contact OECM-Air) 

Enforcement Action Sett lement G uidance for Actio ns in Nonatta' wt Areas \. , .. 

.i . ' ' On November u; 1987, OAR and OECM issued guidance entitled "Settling Enforcement Actions 

. 'in Clean Air Act Nonattainment , Areas' Against Stationary Sources Which Will Not Be In 

Compliance by the Applicable Attainment Date.", Where a source violates emission limitations for 

pollutants in nonattainment areas, this policy observes that, in' some cases, shutdown nyy.be. the 

appropriate relief. For other cases, the policy lists factors-t?. consider when an expeditious 

' compliance schedule'going beyond the attainment date maj;be appropriate. ,~. . further information . - (For . ., I .. 

. ., .I 

... .~ . contact OECM-Air) ' ' .., 

muleme - ntation Plan (SIP) Enforcement Guidanct- ,' , 

On December 31, 19E7, SSCD and OECM-Air issued "Guidance on Evaluating Clean Air Act 

Enforcement of State Implementation Plan Violations Involving Proposed State Revisions'' to assist in 

deciding on appropriate enforcement responses where SIP reyisions are pending. The. guidance 

: suggested to the.Regions how to apply the'mteria in,developing enforcement cases and included a 

case evaluation forrxi to be used, for all cases involving SIP revisions. (For furthe information contact 

Sulfur Dioxide Continuous Comuliance Strategy 

.$ . .I ,. . ., .,- .. ,.. .' .. .~ . ,- 1. . _I 

' OECM-Aid 

.. . .I 

I' 

. ., ,. . 

,: . 

On July 5, 1988, SSCD issued the Sulfur Dioxide 602) continuous compliance strategy which 

provides State and local agencies and EPA Regional Offices with guidance on making decisions about 

SO2 noncompliers. It divides SO2 noncompliers into two groups,.the first consisting of marginal 

~' noncompliers requiring additional' infohation before initiating an enforcement.action. The second 

group are sources significantly out of compliance for which',an enforcement action should be 

considered. Numerical percentages'relat6d to' degree of noncompliance are used to indicate the 

.appropriate type of follow-up action. :The strategy is sp&ifically designed not to impose. any 

'additional burdens; rathier, its purpose-is to ensure consistcnt, efficient and effective utilization of 

existing compliance resources. Current regulatory requirements are used to determine excess emissions, 

averaging time, monitoring methods and degree of violation. (For further information contact SSCDOAR) 

.. 

'I , 

23 . '1 
(@ __ FY 1988 Enforcement Accomplishments Report 

Monitorine Str atew for FY1989 -Ab 

The Compliance Monitoring Strategy (CMS), issued in March ,1988, is the culmination of a 

multi-year effort that focused on addressing important issues in the air compliance program, and will 

replace the Inspection Frequency Guidance in FY1989. The CMS emphasizes flexibility with 

accountability and recommends developing a comprehensive inspection plan that identifies all 

sources or source categories committed to be inspected by the State agency during their fiscal year. It 

also provides State agencies with the flexibility to address significant local air pollution concerns 

such as atizen complaints, odor problems, and other localized toxic, hazardous, and nuisance issues. 

(For further information contact SSCD -OAR) 

Revised Asbestos NESHAP Strate2 

On March 31,1988, SSCD and OECM-Air issued a revised strategy for targeting EPA and State 

asbestos NESHAP compliance monitoring inspections. Rapid growth in the number of notifications of 

sites undergoing demolition or renovation prompted the agency to revise the inspection strategy to 

place priority for inspections on demolition and renovation contractors. Inspection efforts focused on 

contractors should result in a more resource-effective enforcement pro- The strategy also contains 

a new section on outreach that describes methods of communication with the regulated community. 

Other additions include new appendices on identifying non-notifies, EPA technical assistance, 

generic Section 113(a) and temporary restraining orders, and the finalized guidance on contractor 

listing (see discussion above). (For further information contact OECM-Air) 

aean Water Act National Municipal Policy 

The primary National Municipal Policy (NMP) goal during FY1988 was to assure successful 

implementation of the Policy by the July 1988 deadline. The NMP requires compliance with Final 

Effluent Discharge Limitations (FEL), with or without Federal funding, by July 1, 1988. It was 

critical that the Agency demonstrate its seriousness in enforcing against violations of established 

schedules, other noncompliance with the Policy's objectives, and Clean Water Act requirements for 

muniapaIs. Following an EPA review of State and Regonal actions in the Spring, and supported by 

construction data collected in a survey pcrformed by Association of State and Interstate Water 

Pollution Control Administrators (ASIWPCA), the Office of Water Enforcement and Permits 

(OWEP) and OECM continued to press for the settlement (or filing) of cases as part of the FY1987 

Enforcement Strategy directed at the worst cases. The heart of the Strategy was a list of candidates 

for referral, including Federal overfile actions. Since the NMP Enforcement Strategy took effect in 

19%, 141 major Federal and State caseshave been referred and 108 were settled. During FY1988, the 

number of NMP maprs (approximately 1,500) not under enforceable schedules was reduced from 23 to 

14 (mainly unresolved marine variance request cases). The number of majors that had achieved 

compliance doubled and reached 1,055 (this included 90 which were expected to meet Final Effluent 

Limits by October 1,1988). Of those majors that did not achieve compliance by July 1,1988,195 were 

on judiaal schedules, 40 on administrative orders, 178 were in the referral process and 10 301(h) 

decisiork were pending. (For further information contact the Office of Water Enforcement and Permits 

(OW) in the Office of Water (OW)) 

NPDES Pretreatment Comuliance Monitoring 

Guidance Software 

The Office of Water Enforcement and Permits has'developed and distributed software to 

Publicly Owned Treatment Works (POTWs) with approved pretreatment programs for use in 

managing their enforcement programs. This software, which is IBM compatible, can be used to 

manage pretreatment program data on industrial u&s including limits, effluent discharge reports, 

compliance schedules, control mechanisms and enforcement actions. With appropriate data input, 

24 
.. .-. ,.""< 

A- ., , .* .., 

FY 1988 Enforcemek Accomplishments Report .. .I_ (**. ._ .. ~ -. . ~. . 

reports. There are no requirements that pretreatment programs use this software; it is provided as an 

optional tool which can significantly ease and improve pretreatment implementation. Although the 

software was intended for POTWs, Regions and States may find it useful to track industrial users for 

which they are control authorities. (For further infymation contact OWEP - OW) .. .- ~ I. .. . ., 

,. ... CWA PI- and Enforcement T- -. *. ,.. 

' The +treatment Permits and Enforcement Trackng System (PPETS) was fully implemented in 

kYl988 with,data now in the system for'approximately 65% of approved pretreatment programs. 

This data is being used to identify pretrratment programs which are, failing to,adequately implement 

significant portions of their approved programs, and to develop'information on trendsand problems in 

national program implementation. Data fiom the system is helpful in identifying enforcement 

candidates and assessing overall compliance. Information developed kom PPETS to date indicates 

that approximately 43% of POTWs are failing to adequately implement at least one significant 

componqt of their pretreatment program and "y be subject to future administrative or judicial 

' enforiement (For further information contact OWEP - OW) - 

\. CWA Oreanic Chemicals.'Plastics. and Synthetic Fibers Initiative . ., ' , 

... I. .. -1 .; .. . - '' On *ember 30,1987,.0WEk issued guidance to doth &A Regional Water Division Directors 

and'speafic Industrial Users (IUS) outlining the basic responsibilities and activities required of each 

' to ensure that IUS achieve compliance with the Organic Chemicals, Plastics, and Synthetic Fibers 

(OCPSF) regulations.' In the guidance, Regional Water Offices were.provided with a Regional listing 

identifying the name and addrks of each OCPSF IU subpt to the standards followed by the name 

and address of the PorW to which it discharges. With this information, Regional Offices were 

instructed to identify the control authority with the primary pretreatment oversight respbnsibility. 

This control authority is also expected to establish compliance schedules for affected Ius. In 

addition, a listing of these IUS, was sent to each State that has pretreatment program-authority. 

Additional guidance was sent to Regional Water Management Division Dirktors on August, 8,~1988, to 

provide 'further information on the implementation of the OCPSF Pretreatment Standards. (For I .~ information contact'$OWEP - OW) .. .~ . - .~ . -. 

FIFRA Dismfedant E Initiative. ., 

, .. nforcement .. . .,,. ._ ,. , I 

In June 1988, EPA initiated an investigation of companies making false claims on behalf of their 

products' effectiveness as a disinfectant .against humin ,pathogens, in particular the AIDS virus, in 

violation of FIFRA. Most of these disinfectants are sold.for uSe on hospital and dental equipment. 

'I The Agenky received complaints from the medical community that these claims were. appearing 'in 

advertising and product IiteraGre which was distributed by these companies to their customers. As a 

result'of its'investigations, the Agency issued &en civil complaints against companies making these 

false claims. 'The companies involved were:, Georpia Steel and Chemical Companv. Coleate Hovt. 

Sporicidin Intemational, Surkikos, lnc.. Dixie USA .lnc., Outivision Coruoration. and Airwick 

Professional Products. Georgia Steel and Chemical Company, Colgate.,Hoyt,'Surgikos,. lnc., and 

Optivision Corporation have resolved their cases with the 'Agency and have agreed to cease making 

these claims. In addition, Georgia Steel and Chemical Company, Colgate Hoyt, and Surgikos, Inc., 

paid civil penalties of $1,820, $5,000, and $10,000, respectively, for these violations. 

The Sporiddin case went to hearing before an EPA Administrative-Law Judge (ALJ) in May, 

1988. An initial decision rendered by the ALJ on November 1, 1988, upheld the agency's civil 

complaint against Sporicidin International for promoting two of its disinfectant products as effective 

against the AIDS and Hepatitis B viruses in violation of Section 12(a)(l)(B) of FIFRA. The judge 

also upheld the maximum penalty amount of~$5,000 for each violation for a total .penalty assessment 

..of $10,000. Sporicidin filed a motion appealing the decision with EPAs Chief. Judidal Officer on 

November 28,1988. The result of.this appeal is pending. (For further information contact the Office 

of Compliance Monitoring (OCM) in the Office of Pesticides and Toxic Substances (OPTS)) /. . .. 

25 
FY I988 Enforcement Accomplishments Report 

13 Notices of NV C ivil P-.. . 

Although the failure to submit a toxic chemical release form is the most serious violation and 

the primary fow of the Agency's inspection effort under Section 313 of the Emergency Planning and 

Community Right-to-Know Act (EPCRA), the Agency has also instituted enforcement actions for the 

filing of erroneous reports The first group of Notices of Noncompliance (NONS) totaled 553 and was 

issued on September 16, 1988, to facilities which submitted incomplete or erroneous forms. Since 

September, an additional 1,070 facilities have been issued NONS, most of them for incorrect 

reporting. Failure to correct these errors may subject these facilities to administrative penalties. 

On December 16, 1988, EPA issued civil complaints to 25 companies that failed to report their 

toxic chemical release information on July 1,1988, as required by EPCRA. The proposed civil penalty 

assessments in the complaints are dependent on the company's size, the number of chemicals that 

should have been reported, and the quantities of chemicals which were manufactured, imported, 

. processed or used. EPCRA authorizes EPA to assess penalties up to $25,ooO per day per chemical for 

9 

failure to report chemical emissions. (For Mer information contact OCM - OPTS) 

n 

On August 5,1988, EPA revised its enforcement response policy for premanufacture notification 

CPMN) violations under Section 5 of TSCA which requires manufacturers and importen to notify EPA 

90 days prior to manufacturing or importing new chemical substances in the United States, and supply 

the Agency with health and environmental effects infonnation. The revision is a result of the Office 

of Pesticides and Toxic Substances ongoing program to review and update such policies as it gains 

experience in speclalued compliance programs under XA. This new enforcement response policy for 

PMN violations bases penalties on the potential for harm to health and the environment, 

distinguishing between chemicals of imminent hazard or serious concm and those which pose little 

or no risk. The severity or dollar amount of the penalty EPA will assess to PMN violators depends on 

the overall seriousness of the violation. A gravity-based penalty matrix has been developed to 

evaluate the circumstances, extent and nature of the PMN violation, and to classify the violation as 

major, significant or minor. The policy treats violations involving genetically engineered 

microorganisms as major violations regardless of the amount of substance involved. It also applies 

maximum penalties, up to $25,ooO per day in violation, to violations involving an imminent hazard 

situation. (For further information contact OCM- OPTS) 

.. of Pe3 

On September 8,1988, EPA published in the Federal Reerister a final rule entitled "Registration 

of Pesticide and Active Ingredient-Producing Establishments, Submission of Pesticide Reports". This 

rule expands current regulations for establishing registration and reporting requirements for chemicals 

that are used both as pesticides and non-pesticides. The* chemicals, known as multi-use chemicals, 

place the responsibility for regulatory requirements on establishments that have actual or 

constructive knowledge that their multi-use products are being used as pesticides. The rule 

eliminates the establishment registration requirement for customer blending establishments. 

Customer blenders are establishments that blend pesticide mixtures to the specifications of a 

customer, usually a farmer. The rule also changes the date for filing annual pesticide production 

reports from February 1 to March 1. (For further information contact OCM - OPTS) 

FIFRA and TSCA Good LabOn December 28, 1987, EPA published in the Federal Reeister the proposed revisions to the 

FIFRA and TSCA Good Laboratory Practice Standards (GLPs) (52 FR 48920). The FIFRA and TsCA 

GLPs were originally published in the Federal ReHster of November 29,1983, (48 FR 53446). and were 

codified as 40 CFR 160 and 792 respectively. 

26 
.. . 

' FY 1988 Enforcement Accomplishments Report __ .. ~- 

EPA is proposing to expand the scope of the RFRA 'and TSCA GLPs in order to ensure the 

quality and integrity of test data submitted to the Agency in conjunction with a pesticide product 

registration, other marketing and research permit, or submitted to the Agency in accordance with a 

.TSCA Section 4 or 5 rule or order. The expanded scope of the proposed.FIFRA GLPs will require 

compliance for such disciplines of testing as ecological effects, chemical fate, residue'chemistry, and, 

;as.required by 40 CFRl58.160, product perforfnance (efficiency testing). EPA is progosing that both 

' tlie RFRA and TSCA GLPs require compliance for testing conducted in the field, and is also proposing 

r to amend the FIFRA and EkA GLPs to incorporate many of the changes made by the FCd and Drug 

Administration (FDA) to its regulations (52 FR 33768; September 4, 1987). EPA has conformed to 

FDA's revised regulations wherever possible in order to '&riimize the regulatoj burden whichmight 

arise from conflicting requirements. The proposed FIFRA and TSCA GLPs differ from the FDA only to 

the extent necessary due to statuto+ responsibilities, with the most significant differences between 

; the FDA and EPA are in the scope of-the testing (Le., environmental studies and efficacy studies, in 

': addition to health effects testing) and test systems-(i:e., plants,. soils;-and microorganisms, in 

I..' addition to animals) affected. (For further information contact OCM - OPTS) . . 

TSCA S&bn 6(e) Mon iu Strat- m ., . 1. ' .. 

, 

The Second Compliance Monitoring Strategy Amendment for- TSCA Section 6(e). - 

Polychlorinated Biphenyls, is an addition to the previously issued PCB Compliance Monitoring 

' Strategy as amended. This second'amendment emphasizes targeting inspections.at approved PCB 

disposal. sites on a periodic basis as well as inspections at storage and intermediate, handling 

facilities: .(For further information ,. contact ~. OCM -OPTS) ,,. .; . ,I .. , 

I 

,. 

I '. _,. 

,. ..... ~. ,. CERCL&Sect ion 106 Enfoicement ,. . . #-, -. . . ', . .. - 

SERCI-AEnfO rcement Incenh veslD isincentives Work- . ,. :I 

.. 

,. .~ .... 

. .. At.a meeting of senior Agency and DOJ enforcement officials held in February 1988;methods to 

: increase the effectiveness of the Agency's use of CERCLA Section 106 authorities were explored. As'a 

-follow-up. to this meeting, a workgroup was established to explore EPKS policipS 'and practices to 

assure the proper. balance of incentives to settle and disincentives not to settle for Potentially 

Responsible Parties (PRPs) at Superfund sites. The workgroup recommended a hndamental approach 

to the Agency's use of unilateral Section 106 Administrative Orders when negotiations have been 

unsuccessful. Briefly, the workgroup concluded that the use of unilateral Adminis@tive Orders will 

frequently provide a strong incentive to settlement; and recommended that there should be a bias in 

favor of issuance of a unilateral Administrative Order where some or. all of'the PRPs are,unwilling to 

enter.into settlements. (For further information contact OErn-Waste) - . ' ! 

.I 

, 

.< In April 1988, the Ad&is@ator requested that each Region,identify one or more Section 106 

cam for a unilateral enforcement action $an effort 6 increase the degree pfPRP involvement in site 

clean upi OECM and the Office ,of Solid Waste and Emergency Response (OSWER) undertook an 

initial screening of potential sites, looking especially at NPL sites wherr,Records of Decision (RODS) 

'were signed or would be signed'in the,>near term. This effort resulted in identification of 22 sites for 

Section I06 referrals. At the end of FY1988, four of these cases have been settled and two cases have 

been referred. Of the remaining sixteen sites, severa1,are in the.final stages of settlement 

negotiations, and several have had.tfie projected ROD signature date delayed, and thus are not yet 

ready for referral. In addition, fourteen Section 106 unilateral administrative .orders for Remedial 

Design/Remedial Action wek &sued in ~1988. This total is more than twice'the tota1,issued~since 

the beginning of the CERCLA program. (For furiher information contact OECM-Waste) - . . . -. 

3 . .., , .". 1' , 

. 27 
FY 1988 Enforcement Accomplishments Report 

Use and En forcement of CERCLA 1- U 

wive Sub- .. 

The abovereferend guidance was issued by OECM on August 25,1988. The document provides 

guidance on the use of EPAs information gathering authority under CERCLA Section 104(e) 

information requests and Section 122(e)(3)(8) regarding administrative subpoenas. (For further 

information contact OECM-Waste) 

ble Party Partial Investgihons and Feas ibilitv Stud ia .. 

This guidance sets forth the policy and procedures governing PRP participation in Remedial 

Investigations/Feasibility Studies (RI/FS) under CERCLA. It discusses the circumstances under 

which PRPs may conduct the RI/FS; the development of enforceable agreements governing Rl/R 

activities; oversight of PRP actiGties; correction of deficiencies and dispute resolution; and PRP 

participation in Agency RI/R activities. (For further information contact the Office of Waste 

Programs Enforcement (OWE) in the Office of Solid Waste and Emergency Response (OSWER)) 

Recovery Sb&y 

This guidance sets forth the Agency's priorities and objectives for the Superfund Cost Recovery 

program. The guidance encourages maximizing the return of revenues to the Superfund; initiating 

necessary litigation or mlve ripe cases for cost recovery withii strategic timeframes, but no later 

than the time provided under the statute of limitations; encourage PRP settlement by implementing 

an effective cost recovery program against non-settlers (recalcitrants); and, effective use of 

administrative authorities and dispute resolution procedures to resolve cases without UM~TSSZI~~ 

recourse to litigation. (For further information contact OWPE-OSWER) 

CLA Cost Reco verv Arbitra 'on Realations 

On August 4,1988, a proposed regulation providing arbitration procedures for small Superfund 

cost recovery claims was published in the Federal Reeister . for public comment. The regulation, when 

final, will implement Section 122(h)(2) of SARA, which authorizes EPA to use arbitration as a 

method of settliig Section 107 cost recovery claims when the total response costs at the site do not 

exceed $5OO,OOO, excluding interest. (For further information contact OECM-Waste) 

lXR'3-A EPNS tate Relat ipars 

This guidance discusses the conditions States must agree to in applying for and receiving 

cooperative agreement funding to conduct enforcement related activities including PRP searches, 

negotiating adminiseative and judicial enforcement, and oversight of PRPs. (For further information 

contact OWPE-OSWER) 

OSWER established a workgroup on State enforcement with membership including 

representatives from EPA headquarters and Regions, States, DOJ, and the National Association of 

Attorneys General. The result of the initial meetings has been to establish Statelead enforcement 

sites as a recognized category of NPL sites. One policy developed through the workgroup is the 

guidance on counting Statelead enforcement sites toward the section 116(e) mandate. The workgroup 

is focusing on a better partnership between States and the Federal government. (For further 

information contact OWPE-OSWER) 

28 
FY 1988 Enforcement Accomplishmeras Report 

Fede ral Facilitv ~ Hazardous Waste Cornu liance Initiative 

In FY1988, the Office of Solid Waste and Emergency Response (OSWER) created a special task 

force to work with EPA regions, States and other EPA offices to bring Federal facilities into 

compliance with the hazardous waste statutes. The task force identified Federal facilities of 

concern, established poliaes and strategies for carrying out enforcement and compliance monitoring at 

these facilities, and established program planning and management accountability system3 to 

allocate resources to address these facilities and track progress in addressing them. 

The task force published in the Federal Reeister the Federal Agency 'Hazardous Waste 

Compliance Docket. The Docket is a computerized data base defining the universe of potential 

Federal facility hazardous waste problems. The Docket and biannual update required extensive 

coordination, both within the EPA and with over twenty other Federal agencies (resulting in a 

Docket of over 1000 facilities), and.set into motion a series of statutory deadlines for the assessment, 

evaluation, and potential listing of-Docket facilities on the National Priorities List (NPL). The 

Task Force developed comprehensive guidance for Federal agencies and EPA Regions to use in 

assessing facilities for the NPL, resulting in the evaluation of over 100 facilities for a special NPL 

Update. 

.. 

. . 

Policy development included a comprehensive enforcement strategy defining the range of 

enforcement options available to EPA under RCRA and CERCLA, with criteria for Regions to consider 

in. selecting an approach. Procedures issued to the Regions explained when and how to elevate 

compliance disputes to keep the enforcement process moving. Also, model agreements for Superfund 

and RCRA were successfully negotiated with the Departments of Defense and Energy. The model 

agreements, designed to expedite site specific clean up negotiations, contain key provisions for 

enforceability-assessment of stipulated penalties for failure to comply with the agreement, and 

dispute rwlution procedures. (For fur the^ information contact OWPE-OSWER) 

Off-Site Policv and Rule 

On December 13, 1987, OSWER issued the Off-Site Policy describing the procedures to be 

observed when a response action under CERCLA or Section 7003 of RCRA involves off-site treatment, 

storage or disposal of CERCLA waste. The procedures also apply to actions taken jointly under 

CERCLA and other Agency statutes. The purpose of the Off-Site Policy is to avoid CERCLA waste 

disposal contributing to present or future environmental problems by directing these wastes to 

facilities determined to be environmentally sound. The Off-Site Rule was published in the Federal 

Reester on November 29,1988. The rule, unlike the policy, does not cover actions taken under Section 

7003 of RCRA. (For further information contact OWPE-OSWER) 

Revised RCRA Enforcement Resuonse Policy 

The RCRA Enforcement Response Policy (ERP) provides guidance to the Regions and States on 

how to,classify violations along with a.description of appropriate enforcement responses for each . . 

categoj.of violation. The ERP also establishes timeframes for response to violations. The revised 

EN', effective on October 1,1988, acknowledges that for some complicated cases more time may be 

required and is therefore "appropriate." The major change in the ERP is to the definition of high 

priority violators (HPV) where an HPV designation will be based heavily on case specific 

information. (For further information contact OWE-OSWER) 

Surface Imuoundment Retrofittinv Stratem _- 

RCRA Section 3005 (j)(l) requires surface impoundments that were in existence on November 8, 

1984, and qualifymg for,the authorization to operate under interim status, to be retrofitted to meet 

the minimum technological requirements of Section 3004(o)(l)(A),'or.cease the receipt of hazardous 

29 
I”% 

(&\ +. 1 

FY 1988 Enforcement Accomplishments Report 

waste unless the owner or operator had obtained an exemption from these requirements. To implement 

and enforce these requirements, OWE prepared a sample letter for notifying owners and operators of 

the requirements; a Federal RePister notice explaining the requirements (June 30, 1988); and an 

enforcerrent shategy (September 29,1988). (For further information contact OWPE-OSWER) 

mve Record Guid- .. 

RCRA - Hearing procedures for unilateral RCRA Section 300801) corrective action orders were 

promulgated in FY1988, requiring that EPA prepare an administrative record supporting the order at 

the time of issuance. This requirement is ,critical to the operation of the hearing procedures and any 

subsequent judiaal review. 

- OSWER has developed a strategy on administrative records for selection of 

rrsponse actions which included training and wessment of all ten Regions to ensure the compilation 

of adequate records. The strategy also includes the issuance of a guidance document to be used by the 

Regions in draft form pending publication of proposed regulations on administrative records. The 

regulations are slated to be Subpart I of the revised NCP. (For further information contact 

OWE-OSWER) 

This strategy outlines how EPAs RCRA and TSCA enforcement programs are to coordinate 

enforcement activities with respect to natural gas pipelines contaminated with PCBs. (For further 

information contact either OWE or the Office of Compliance Monitoring in OPTS) 

30 
FY 1988 Enforcement Accomplishments Report .. .- 

I .. .. .. ..h : 

IV. ' MEDIA SPECIFIC ENFORCEMENT PERFORMANCE; 

RESOLVING I SIGNIFICANT NONCOMPLIANCE . - . . 

Planniug-km (SPMSl 

EPA uses the Strategic Planning and Management System (SPMS) to ensure thHi.EPA and State 

managers identify the highest priority environmental problems and. establish accountability for 

,. resolving those problems..For enforcement, EPA and the States have identified a core &oup of 

management indicators to track progress in each media including inspections, compliance rates, 

identifying and rwlving significant noncompliance (SNC), and numbers of civil and criminal case 

referrals and administrative orders. During the Agency's annual operating guidance development 

process, media compliance and enforcement programs identify a categoryk) of violations determined 

to be the most environmentally significant (SNC). At-the beginning of each fiscal year, EPA and the 

States review. the known'universe'of. SNCs and establish joint commitments to address them' during 

the year. The following program summaries indicate EPA and State progressin resolving SNC over 

the past several years. 

Air Enforceme nt - Statio narv Sou rces y ' I .- 

The air ,enforcement .program. has defined SNC .as a violation of State Implementation Plan 

(SIPf&quirements in areas not attaining prima+ ambient air quality for the pollutant for which,the 

source is in violation, violations of New Source Perfopnce Standards (NSPS); and violations of 

National Emission Standards for Hazardous Air Pollutants (NESHAPs). Also included are 

violations of Prevention of Significant Deterioration (PSD) and nonattainment new source review 

(NSR) requirements. At the beginning of N1988, EPA and the States identified 703 violating 

facilities as SNCs, including 168 that had enforcement action initiated against them prior to 

FY1988. At year's end, 261 of the SNCs had been brought back into compliance, 85 were subject to an 

enforceable compliance schedule, 221 were subject to a formal enforcement action, and 136 were 

unresolved. In addition to addressing those SNCs identified at the beginning of the Fiscal Year, EPA 

and the States identified an additional 599 new significant violators, of which 215 were either 

returned to compliance or were placed on an enforceable schedule leading to compliance. 

CLEAN AIR ACTENFORCEMENT 

RESOLVING SIGNIFICANT NONCOMPLIANCE 

(Universe: SNCs at beginning of year) 

FY84 FY85 FY86 FY87 FY88 h PENDING AT END OF YEAR 0 ADDRESSED AT END OF YEAR 

31 
FY 1988 Enforcement Accomplishments Report 

FY86 FY87 N88 

0 PENDING AT END OF YEAR a ADDRESSED AT END OF YEAR 1 

W xiR 

The "DES enforcement program has defined SNC to include violations of effluent limits, 

reporting requirements, and/or violations of formal enforcement actions. Unlike the other Agency 

enforcement programs, the NPDES program does not track SNC against a "fixed base" of SNC that is 

established at the beginning of the year, rather, the program tracks SNCs on a quarterly "exceptions 

list" that identifies those fadlitis that have been in SNC for two or more quarters without returning 

to compliance or being addressed by a formal enforcement action. 

During FY1988,675 fadlitis were reported on the SNC exceptions list including 103 faalities 

that were unaddressed from the previous year and 572 facilities that appeared on the list for the 

first time during the year. Of the 675 facilities on the exceptions list, 320 returned to compliance by 

the end of the year, 221 were subject to a formal enforcement action, and 134 faalities remained to be 

addressed during the upcoming year. 

CLEAN WATER ACT ENFORCEMENT 

RESOLVING SIGNIFICANT NONCOMPLIANCE 

(NPDES - EXCEPlTONS LIST) 

n 

s afe Dnnkine Water a rcemd .. 

The Public Water Supply enforcement program tracks significant noncompliance on an 

exceptions basis for those public water supply systems that exceed standards for microbiological, 

turbidity, and total hi-halomethane (lTHM). The Underground Injection Control program tracks on 

an exceptions basis Class I, 11, 111, and V wells that failed mechanical integrity, exceeded injection 

pressure, or received unpermitted injection material. 

The Safe Drinking Water Act Amendments of 1986 provided JPA with significant new 

administrative enforcement authorities, and in the past two years the EPA Regional offices have 

taken 413 such actions. 

32 
.. 

.- 

FY I988 Enforcemenl Accomplishments' Report ..~. . ~ 

.- . -- ~. ~ .. ~. . .~ 

RCRA Enforcement -. 

i, . .. .. 

Since Fy1986, the RCRA SNC definition has focused on land disposal facilities (LDFs) with 

' Class I 'Gelations of groundwater monitoring requirements, financial responsibility requirements, or 

closure/postklosure requirements. (Prior to FY1986, the RCRA program defined SNC as a Class.1 

violation by a-!'major handler.") The RCRA ,definition .was expanded in FYI988 to include ,any 

I!, Treatment, ,Stdrage, and Disposal Facility$(TSDF) in violation of a corrective action compliafice 

schedule. In FY1988;the program identified 674 land disposal facilities 'as SNG, and at the end of 

the year 85 had been returned to compliance, 253 were on compliance schedules, and 328 had an 

administrative or judicial complaint pending against them.. . . v . , . - . 

.. ,. 

... . . 

RCRA EIGFORCEMENT 

RESOLVING SIGNTFICANT NONCO~LXANCE: . .. . (Universe: SNCs at begiig of year) .. .. .- .. . 

I 0 PENDINGATENDOFYEAR 

IIlUSbhl9 

.-. . . . Superfund Enforce merit - . 

The Agency dramatically increased the level of Superfund judicial enforcement activity in 

FYI988 with 114 civil cases referred to DOJ seeking either recovery of past costs, injunctive relief, or 

site access. ?e program issued 224 

administrative orders, and Remedial Design/Remedial Action negotiations were completed for 96 

sites. Under Section 107, the Agency referred 56 cases seeking recovery of past costs valued at $126 

mitlion, and response actions to be undertaken by Potentially. Responsible Parties (PRPs) under 

&tion 106 are valued at $470 +liion. 

Toxic Substances Confro IAct( TSCA) Enforceme nt 

In addition, one criminal case was referred to DOJ. 

.. %., 

.. .. , . . 2 -, 8 .. ... .I . .I.. 

. .. .. ~ 

. .. . .. . ~. , ,. . . I , .- . 

' ' The TSCA program defines SNC as violations, of PCB disposal, manufacturing, processing, 

distribution, storage, record-keeping, or marking.' The-definition also.includes Asbestos-in-School 

violations, import certification and recordkeeping violations, and testing or premanufacturing 

notification violations. At the beginning of FY1988, the Regions had 685 open SNC cases, and by the 

end of the year 583 cases were closed and 102 remained open. During the year EPA identified 519 new 

SNCs based on preFY1988 inspections, with 420 having enforcement action taken. Based on FYI988 

inspections, EPA identified 377 new SNCs, with 228 having enforcement action taken. 

-. . ..,. 33 
FY 1988 Enforcement Accomplishments Report 

APPENDIX: 

ENFORCEMENT DATA 

.. ... 
FY 1988 Enforcement Accomplishments Report 

- - 

TSCA ENFORCEMENT 

RESOLVING SIGNIFICANT NONCOMPLIANCE 

(Universe: SNCs at beginning of yead 

I I . 

FY84 FY85 M86 M87 M88 

10 PENDINCATENDOFYEAR, RI ADDRESSDATENDOFYEAR] 

I , .. A 

Illustrationlo .. , 

... .. . . , >'. , 

. f .. . _. .I 

and Rodenticide Act (FI FRA) Enforcement 

The FIFRA program has defined SNC to include pesticide misuse violations. Reflecting the 

major role of the States in enforcing these types of violations, the EPA Regions and each of their 

States agree on significant violation categories given patterns of use unique to each State, and they 

establish timeframes for investigating and taking enforcement actions against these significant 

violations. In FY1988, EPA and the States addressed 136 SNCs, and 41 SNCs were awaiting action at 

the end of the year. 

FIFRA ENFORCEMENT 

RESOLVING SIGNIFICANT NONCOMPLIANCE 

(Universe: SNCs at begininning of year) 

'0 

MM M87 FYW 

1 0 PENDING AT END OF YEAR ADDRESSED AT END OF YEAR 1 
FY 1988 Enforcement Accomplishrneks Report 

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