After five years of investigation, three years of negotiations with federal officials, and $6.8 million already spent on remediation at 23 Massachusetts
After five years of investigation, three years of negotiations with federal officials, and $6.8 million already spent on remediation at 23 Massachusetts and New Hampshire operations, Aggregate Industries-Northeast (NE) Region Inc., will pay a $2.75 million civil penalty and implement a regional evaluation and compliance program to resolve Clean Water Act violations.
The result of a mid-August consent decree, filed along with a joint Department of Justice-U.S. Environmental Protection Agency complaint in the U.S. District Court for Massachusetts, the penalty for violations is the largest ever assessed to a national ready mixed company.
Under terms of the consent decree, which was subject to a 30-day public comment period ending September 11 before being finalized by the court, the company will implement pollution-control measures, such as closed-loop water recycling systems, which should eliminate release of about 159,000 lb. of sediment; 2,100 lb. of oil and grease; and, 1,150 lb. of iron to the environment by the end of 2009.
The settlement also requires the company to perform comprehensive compliance evaluations at each of its 43 New England plants, as well as any facilities acquired in the next three years. Additionally, Agg Industries-NE must conduct monitoring and reporting of discharge, hire personnel certified in management to oversee compliance at all operations where water permits are required, and provide training in management for all operational employees.
The complaint cites a pattern of violations since 2001, discovered after several federal inspections. Among alleged infractions was the company’s discharging of process waste waters (which includes waters from concrete and sand & gravel production), plus sanitary waste waters, without proper permits at several facilities. Of the original 23 sites mentioned in the initial complaint, 10 were ready mixed plants (some based at quarries), nine were asphalt plants, three were quarrying operations, and one was a sand & gravel processing facility. Since EPA investigations began in December 2004, some of these plants have either been sold, or Aggregate-NE has terminated discharge entirely, so the list of facilities covered by the consent degree has been pared to 16.
As part of the settlement, Aggregate-NE, a subsidiary of Delaware-based Aggregate Industries Inc., did not admit to any wrongdoing. In a statement released the same day as the consent decree was announced, the company emphasized that it was fully committed to environmental compliance and exemplary environmental performance at all its facilities. This commitment is further demonstrated, according to the release, by the company’s environmental management system, which received ISO 14001 certification. Still, the EPA has made it clear that Aggregate-NE is responsible for analytical monitoring, evaluating itself for Clean Water Act compliance at various intervals, and reporting results for review, while remaining open to unannounced site inspections any time in the next 12 months.
The Agg Industries-NE settlement is the latest in a series of federal enforcement actions to address violations from industrial and construction sites around the country. In March, EPA Region 1 (Boston) announced a smaller-scale settlement with Consolidated Concrete Corp. of Rhode Island, in which the ready mixed producer paid a $55,000 fine and invested about $178,000 on three Supplemental Environmental Projects, which the company implemented almost immediately.
Several years ago, EPA issued its official statement of enforcement priorities between 20082010, with particular relevance to the homebuilding, retail construction and construction materials industries. Consistent with the agency’s earlier enforcement strategy memos (1994, 2000 and 2003), EPA continues to target discharge violations as a top national priority.
Three industrial groups were cited as sectors of particular interest to EPA for noncompliance with permitting requirements: residential construction, big box store construction, and ready mixed concrete plants with crushed stone and sand & gravel operations. EPA is also exploring the need for future regulation nationwide of discharge related to separate municipal storm sewer systems, ports, road building, and federal facility construction projects.
Stormwater discharge began receiving national attention in the late 1980s, when Congress directed EPA to develop a strategy to regulate stormwater. EPA answered this call by developing and implementing the National Pollutant Discharge Elimination System (NPDES) stormwater permitting program. Over the next 15 years, EPA transitioned its focus from compliance assistance to enforcement, concluding that many industrial dischargers were failing to comply with the program.
In 2001 and 2002, the Office of Enforcement and Compliance Assurance and EPA Region III (the Mid-Atlantic Region) implemented a dual compliance and enforcement strategy in the Anacostia River watershed. EPA adopted this approach nationwide in its 2003 stormwater discharging enforcement strategy, and focused on construction and industrial discharging into impaired waterways, seeking to focus enforcement efforts on several large operators responsible for a majority of the nation’s construction activities. EPA estimated that less than one half of industrial sources had a stormwater permit at that time and suggested it would consider applying its enforcement strategy to concrete and asphalt makers as well.
Since implementing the new strategy, EPA has reached a significant settlement with Wal-Mart Stores, Inc., and has actively pursued similar settlements with other retail developers and homebuilders. In 2005, EPA stated that sand & gravel operations were not the subject of national enforcement. Nevertheless, the agency has continued to inspect ready mixed, asphalt and sand & gravel sites during this time, and has commenced a number of stormwater enforcement actions against regional and national ready mixed, crushed stone and sand & gravel producers. To this day, EPA contends that stormwater compliance rates within all these industries remain unacceptably low, and companies will likely see increased enforcement activities, including inspections, requests for information, and possibly pursuit of administrative or judicial enforcement cases.