Based on the most recent data, criminal enforcement at the United States Environmental Protection Agency (EPA) continues in a downward trend. But that is not the whole story.
According to Public Employees for Environmental Responsibility (PEER), “Even before the government shutdown, the U.S. EPA’s criminal enforcement program was missing in action, according to new figures posted today by Public Employees for Environmental Responsibility (PEER). In 2018, EPA generated the fewest new criminal case referrals for prosecution than any year since 1988.”
This should not be a surprise as the Trump administration has consistently taken a different approach to environmental protection. When you look at the history of Federal Criminal Enforcement under the EPA, the number of cases referred to the Department of Justice (DOJ) has steadily declined over the years.
The “referrals received” by the DOJ peaked in 1992 when 592 cases were received. The numbers bounced around since 1992, but they show a steady decline beginning in 2011.
With the above said, environmental enforcement still happens at the federal and state level, and being proactive in environmental protection is still the best policy! We provide some recent enforcement updates below.
Coke Plant CAA Violation: Nearly $1 Million Penalty
The EPA in Alabama reports that, “The U.S. EPA, Region 4 (Atlanta office), the DOJ and the Jefferson County Board of Health (JCBH) announced a settlement agreement on February 8, 2019, with Drummond Company (Drummond) that will resolve allegations that Drummond violated the Clean Air Act (CAA) at the coke byproduct recovery plant located at its ABC Coke facility in Tarrant, Alabama.”
According to the EPA, Drummond violated the CAA and associated regulations applicable to the coke byproduct recovery plant, known as National Emission Standards for Hazardous Air Pollutants (NESHAPs).
BLR reports in their March 2019 newsletter that the Drummond Company will pay a $775,000 civil penalty and at least $16,000 on a Supplemental Environmental Project.
Feedlot CWA Violation: $100,000 Penalty
According to the EPA, on or about July 29, 2016, a 20,000-gallon tank containing soybean oil at National Feed Commodities, Inc. failed and released an estimated 10,000 gallons oil. The EPA states that the spill traveled east, downgradient, to White Clay Creek. This release of a regulated oil was in violation of the Clean Water Act (CWA). Additionally, the EPA alleges that the facility failed to fully prepare and implement a Spill Prevention Control and Countermeasures (SPCC) Plan.
As an aside, we often remind our clients of the importance of making sure that various plans are not simply updated but also implemented. This is a common stumbling block for companies and, as was the case here, can lead to penalties.
The EPA states that, “…the respondent has reached an agreement with the EPA on the terms of a proposed Consent Agreement/Final Order which would resolve this matter, and pursuant to 40 C.F.R 22.18, the EPA proposes to commence and conclude a ‘Class II’ penalty enforcement action pursuant to the proposed Consent Agreement/Final Order.”
Under the proposed Consent Agreement/Final Order, the feedlot will pay a civil penalty of $100,000.
Who needs an SPCC Plan?
With respect to the SPCC plan, the numbers to keep in mind are 1,320 gallons and 10,000 gallons. If you store (above ground), or have the capacity to store, 1,320 gallons of regulated oil, you need to have an SPCC Plan. You can, with some exceptions, self-certify the SPCC Plan if you are below 10,000 gallons of storage capacity. Over this amount, a Professional Engineer must certify the plan. Note that the SPCC rules are far more complex than this brief paragraph. Contact us for more information about the applicability of the SPCC Rules.
Retail Store Pays Multi-Million Penalty
Some states are taking the environmental enforcement lead. This includes California, who alleged that Target Stores improperly disposed hazardous waste in landfills. At issue was disposal of batteries, aerosol cans, and fluorescent light bulbs.
Target agreed to pay $3.2 million in fines, $3 million to conduct compliance assessments, pay an additional $22.5 million in penalties and attorneys’ fees, and provide funding for supplemental environmental projects (see official announcement by the California Attorney General).
This enforcement is part of a larger trend of focusing compliance/enforcement at retail stores. Over the years, we have seen environmental enforcement at Walmart, Trader Joe’s, Lowe’s, and more (see Environmental Enforcement Goes Retail).
Favorable Time to do an Environmental Assessment?
With environmental regulations increasingly applying to a wider group of companies, it is a good practice to consider doing a yearly or bi-yearly environmental compliance assessment. The EPA and many states have audit privilege policies that provide some protection from enforcement if the violations identified are remedied within the required time frame. As we stated recently, the EPA under the Trump Administration is taking a “kinder, gentler” approach to environmental issues. With the feds taking a less heavy-handed approach to environmental issues, now may be a good time to consider undertaking an environmental compliance assessment.
If you are considering looking at your company’s environmental compliance status, whether you have one location or multiple locations, we can help. If you have questions about environmental compliance, contact Matthew Schroeder, P.E., at 248-932-0228, Ext. 117.