From time to time, it’s beneficial to survey environmental enforcement news. These enforcement stories are all public information, so you can find more information on line.
Environmental Compliance
It is difficult to discern trends based on these news items. We do not know what state or federal regulators might be planning; however, these reports provide good examples of environmental management issues from which we can all learn. The following are observations of some notable, recent stories:
May 2014: Titanium Metals will pay a $13.75 million civil penalty plus $250,000 for illegal disposal. According to the Environmental Protection Agency (EPA) and Department of Justice, Titanium Metals Corporation agreed to perform an investigation and cleanup of potential PCB contamination. This contamination was primarily from the unauthorized manufacture and disposal of PCBs at its Black Mountain Industrial Complex manufacturing facility in Henderson, Nevada.
Comment: According to the EPA, there were Toxic Substance Control Act (TSCA) and Resource Conservation and Recovery (RCRA) violations. Violations of either of these regulations tend to make “big regulatory waves.” Again, according to the EPA, PCB wastes were disposed in a landfill and at a trench at the plant.
June 2014: Ivory Homes will pay a Clean Water Act (CWA) penalty of $250,000. Ivory Homes agreed to resolve alleged CWA violations at several locations in Utah and will invest in a company-wide compliance program to improve employee training and stormwater management at all current and future residential construction sites.
Comment: Employee training/awareness has been the “weak link” in more than one enforcement case. Recall Wal-Mart’s $82 million fine in 2013 because employees were improperly disposing fertilizers and damaged products.
July 2014: Archer Daniels Midland (ADM) will pay a civil penalty of $430,000. EPA identified the lack of a response plan during a Spill Prevention, Control, and Countermeasures (SPCC) inspection in 2008 at ADM’s Cedar Rapids, Iowa, facility. The facility required a Facility Response Plan (FRP) because the storage capacity of its denatured ethanol tanks exceeded one million gallons. ADM committed to develop and submit an FRP, but failed to do so for the Cedar Rapids facility and three additional facilities until almost two years later. ADM’s Deerfield, Missouri, facility also operated for a period in 2011 and 2012 without a required, updated FRP.
Comment: During inspections, regulators look for implementation of spill plans or out-of-date spill plans.
Environmental Fines & Sue and Settle
There were other eye-popping enforcement actions, including the Kerr-McGee/Anadarko Petroleum settlement in excess of $5 billion. Also, related to regulatory enforcement, we’ve heard that industry groups and some states remain concerned about environmental groups using “sue and settle” to develop regulations outside the proper, rule-making channels.
Environmental Lessons and Assistance
If there are any lessons from these stories, it might be that even the best managed companies can get hit with fines and penalties because of oversights, lack of communication, or issues of regulatory interpretation. It might also serve as a salient reminder that you need an excellent team of advisors (legal and technical) that are not shy about telling you when you have shortcomings in your current environmental compliance programs.
Do you need assistance with an environmental compliance issue? Contact Matthew Schroeder, M.S., P.E. (mschroeder@dragun.com) at 248-932-0228, ext. 117, or Jeffrey Bolin, M.S., CHMM (jbolin@dragun.com) ext. 125.