Environmental Fines and Penalties

As we have discussed in the past, there has been a long-term trend of declining environmental enforcement action by the United States Environmental Protection Agency.

One metric is that cases received by the US Department of Justice peaked in 1992 and after bouncing around a bit, have declined steadily since 2011.

There seems to be a consensus that under the Biden Administration, there will be more enforcement and a greater focus on Environmental Justice.  Earlier this year, Baker Hostetler wrote, “President Joe Biden’s FY 2023 EPA budget proposes sharp escalations in civil enforcement, environmental compliance monitoring and criminal enforcement.”

Federal enforcement plans aside, taking care of “your own house” and surrounding yourself and working collaboratively with good technical and legal counsel is still the best way to avoid, or at least limit, the chances of enforcement at your facility.

Below is a brief look at some recent environmental enforcement actions.

$1.5 Million Civil Penalty

The U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice (DOJ), and the Louisiana Department of Environmental Quality (LDEQ) announced a settlement with PCS Nitrogen Fertilizer, L.P. (PCS Nitrogen), involving PCS Nitrogen’s former phosphoric acid fertilizer production facility located in Geismar, Louisiana.

This is a large site (over one-thousand acres) with operations dating back to the 1960s.

According to Waste 360, “The agreement comes as a result of violations outlined under the Resource Conservation and Recovery Act (RCRA)… Between the 1960s and 2018, PCS Nitrogen was a manufacturer of phosphate products in Louisiana for agriculture and industry.  Processes in the production of phosphoric acid and phosphate fertilizer created byproducts of acidic wastewater and phosphogypsum.”

The report in Waste 360 also states, “The phosphogypsum was deposited and remains in large piles (some over 100 acres large and 200 feet high) referred to as phosphogypsum stacks.  Acidic wastewaters are stored in the phosphogypsum stacks and surface impoundments, according to the settlement information sheet.”

The EPA lists the following RCRA violations:

• Failure to make hazardous waste determinations;
• Failure to perform land disposal restriction determinations;
• Storage of hazardous waste (Dearsenate) without a permit or interim status;
• Treatment, storage, and disposal of hazardous waste in the Gypsum Stack System, surface impoundments, and tanks, and leaking/disposal of hazardous wastes outside the Gypsum Stack System, without a permit or interim status;
• Failure to submit required hazardous waste generation annual reports to the LDEQ;
• Failure to establish an adequate cost estimate for closure of all units that received hazardous waste;
• Failure to establish adequate financial assurance for closure of all units that received hazardous waste;
• Failure to prepare an adequate cost estimate for post-closure of all units that received hazardous waste;
• Failure to establish adequate financial assurance for post-closure of all units that received hazardous waste; and
• Failure to establish adequate financial assurance for third-party liability at the Geismar Facility.

PCS Nitrogen will pay a $1,510,023 civil penalty divided evenly between the United States and the State of Louisiana, which joined EPA and the U.S. DOJ as plaintiffs in this case.

Wetlands $350,000 Fine in Michigan

Environmental issues cover a wide range of issues including water and wastewater discharge, air discharge, management of wastes, and various permits governing these areas.  Keeping up with this myriad of regulatory obligations is one of the reasons why we provide monthly environmental compliance tips.

One of the other areas that can be overlooked and can affect developers of land is wetlands.  Laws and regulations define wetlands and if you violate these laws, and drain and fill these wetlands, the fines can be substantial.

There was a recent case in Michigan where a company stepped over the line of “developable” land into wetlands.  The company “mechanically graded and cleared” approximately 9 acres of land.  This was a violation of Part 303 of Michigan Public Act 451.

According to the State of Michigan, “The 25.75-acre property is located in Clinton Township, Macomb County (Michigan).  The consent judgment requires the MJC companies and related individuals to restore the impacted wetland, monitor the restored wetland for 10 years, place a conservation easement over 13.02 acres of wetland, and pay the $350,000 civil fine.  The court promptly entered the consent judgment, which also orders that the real estate developers and related parties not violate this statute in the future.”

“Organic Death Smell”

Anyone who has ever had to address odor issues knows how difficult that can be to resolve, and when a citizen reports the odor as “organic death,” you can bet you will have a visit from a regulator.

The odor in this instance came from a plant that makes powdered eggs (that previously made powdered milk).  The plant is in southern Michigan (Adrian) and according to  the Michigan’s Department of Environment, Great Lakes, and Energy, “The enforcement action will address several violation notices issued to the powdered egg facility since April 2022, including ongoing odor violations and not properly operating equipment or having a proper air permit.”

According to a report in MLive, “Plant Manager Dan Hofbauer said in a statement Crimson Holdings continues to work with state and local officials to ‘mitigate any impact facility operations may have had on our surrounding community’ and has invested more than $250,000 in upgrades and operational modifications to reduce the potential for odors.”  The same article reports that a complaint from a resident described the smell as “organic death.”

While we don’t know what a smell of organic death is exactly, it would be safe to say that it’s unpleasant and will conjure citizen complaints – quickly.

Terms of the settlement were not final but EGLE did say it would include a monetary fine and a supplemental environmental project.

If you need help with an environmental permit or plan, contact us.  We have been assisting the regulated community with permits and plans (developing, updating, assisting with disputes, etc.) for nearly 35 years.

This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years.  He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

The blog was reviewed by Jeffrey Bolin, M.S.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.  

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