EPA Region 10 released this press release on Monday, summarizing four recent enforcement actions it has taken under the Clean Water Act. There are some commonalities and differences between the four actions that I think are illustrative of Region 10’s enforcement priorities.
First, all four of the entities (Ash Grove Cement Company, Waste Management of Washington, Gary Merlino Construction Company and Special Interest Auto Works) are located in or upstream of the Duwamish River Superfund Site. As I’ve discussed previously, the Duwamish River Superfund Site is at a critical juncture in the CERCLA process. The Feasibility Study is done, the Proposed Plan has been commented on by the public, and a Record of Decision is coming sometime in the next couple of years. One of the challenges at this site is the need to control ongoing sources of pollutants to the Duwamish–particularly because the fish-consumption-based cleanup goals for the Duwamish are oftentimes lower than the concentrations of contaminants flowing into the River from upstream. So, the common denominator of these four businesses being within the boundaries of the Duwamish River Superfund site or upstream along the Green River (the main tributary to the Duwamish River) is probably reflective of EPA Region 10 prioritizing enforcement actions that address ongoing sources to the River.
There is a pattern that can be parsed out in terms of the amount of the penalties sought or imposed by Region 10, consistent with EPA’s criteria for assessing penalties under the Clean Water Act. The penalty against Ash Grove ($600,000) is the largest–reflecting the longest period of alleged discharges without permit coverage under the Clean Water Act (1992-2010) and perhaps the contaminants involved in the discharges, which included zinc and copper (common to industrial stormwater discharges, and perhaps from off-site sources) as well as mercury (often seen associated with cement manufacturing, and perhaps sourced at the facility). Ash Grove did what can best be described as the smart thing here–having settled liability with EPA, even if for a large amount of money, and obtaining permit coverage. The second part of the pattern of penalties are Waste Management and Gary Merlino Construction Company, both entities that settled for around $30,000, and agreeing to come into compliance and remedy the allegations against them. These two entities were both hit with lack of compliance with Washington’s industrial stormwater permit–and had in common failures to monitor or reduce zinc in their stormwater discharges. The zinc may again be something that is not necessarily associated with the operations at these two facilities, and the size of the penalties are relatively modest compared to Ash Grove and Special Interest Auto Works, reflective of the apparent willingness of Waste Management and Gary Merlino Construction Company to work with Region 10 to resolve these allegations, the shorter duration of the alleged CWA violations, and perhaps the lack of an intent by these two entities to violate the CWA.
Special Interest Auto Works is the most unique of these four cases. EPA Region 10 has alleged discharges of petroleum, zinc, copper, arsenic cadmium and lead without permit coverage over a period of four years (2008 to 2012). Those allegations are based on a single sample of stormwater runoff taken in March 2012 during a site inspection that was the capstone to correspondence and site inspections by EPA over the previous five months. Special Interest Auto Works is the only entity of the four that has chosen not to settle its potential liability, and, as a result, EPA has filed an Administrative Complaint seeking $177,500 in penalties from Special Interest Auto Works and its owner–who is alleged to have had sufficient control over the operations to be individually liable under the Clean Water Act. It will be interesting to keep tabs on how this complaint is handled.
What are the lessons for businesses in the Duwamish? Good housekeeping and attention to environmental compliance is key–you are under a microscope in terms of both the ongoing remediation of the Lower Duwamish under CERCLA and MTCA and ongoing source control efforts.