Discharges of Sediment from Construction Site in Virginia Lead to Penalties

We routinely deal with situations where development projects result in discharges of sediment onto surrounding properties and into nearby water bodies. U.S. EPA recently settled a similar case in Lynchburg, Virginia.

Last month, five defendants involved in the construction of a housing development agreed to pay a $300,000 penalty and fund more than $1 million in stream and wetlands restoration projects for alleged violations of the federal Clean Water Act. The settlement agreement resolved allegations that the defendants discharged and/or controlled and directed the discharge of pollutants including dredged or fill material, sediment, and other pollutants carried by stormwater into waters of the United States during the construction of a housing development without the required permits, and then in violation of their NPDES stormwater permit after one was obtained.

The current owner of the property, which was not a defendant in the enforcement action, agreed to implement approximately $250,000 in on-site restoration work, which will be funded by the defendants. The defendants will also pay approximately $825,000 to purchase credits to fund stream and wetland restoration projects in the region.

The alleged Clean Water Act violations at the site occurred from July 2001 through January 2003 when the defendants cleared and graded the site, installed roads and utilities, and completed or partially built several housing units. In the process, the defendants allegedly destroyed approximately 3,765 feet of stream, along with wetlands at the headwaters of tributaries to the Roanoke and James Rivers. Silt and sediment from the construction activities were also discharged into streams on and off the site and flowed downstream to Pine Lake and beyond. U.S. EPA claimed that these waters are important for flood control, nutrient and sediment retention, filtration, water quality improvement and maintenance of healthy aquatic ecological communities for other water bodies down stream. As the result of defendants’ actions, EPA said, water now flows downstream faster and at a higher temperature, killing or stressing aquatic animals and plants.

The site restoration plan requires restoration of one stream, restoration and enhancement of four ponds, installation of plantings, and eradication of invasive species in certain areas. The settlement agreement also prohibits future disturbances of the restoration project area.

Asbestos Convictions in New York

Let's get the ball rolling here. We'll start with a simple announcement about an enforcement action to ease our way into blogging.

Earlier this month, a federal judge sentenced two operators of asbestos abatement companies to prison for illegally removing and disposing of asbestos in upstate New York. John Wood was sentenced to four years in prison, required to pay restitution of $854,166.06 to victims, and placed on supervised release for three years following the completion of his prison term. Curtis Collins was sentenced to two years in prison, required to pay restitution of $114,902.89, and ordered to serve three years of supervised release.

Both defendants pleaded guilty to conspiring to violate the federal Clean Air Act and the mail fraud statute. Wood also pleaded guilty to contempt of court for numerous new asbestos-related crimes which he committed while awaiting trial on the original charges. (Can you say "Darwin Awards candidate"??)

In 2005, after being released from prison for unrelated felonies, Wood began operating an asbestos abatement company. He directed his employees to remove asbestos in a way which, rather than removing all asbestos, dispersed it and left substantial quantities behind, significantly contaminating numerous businesses and homes. Some of asbestos which was removed was buried on a farm which was cleaned up using Superfund monies.

In order to deceive clients into believing that the asbestos had been removed from their properties, Wood used Mark Desnoyers, a licensed air monitor. Desnoyers falsified air samples so that laboratory results appeared to prove that all asbestos had been removed from homes and business when, in fact, they remained seriously contaminated. Wood previously testified against Desnoyers at trial.

Collins worked for Wood and also ran his own asbestos abatement company. He pleaded guilty and cooperated with prosecutors by testifying against Desnoyers at trial.

Desnoyers was convicted on all counts of an indictment charging him with conspiracy to commit mail fraud and Clean Air Act violations, as well as related substantive violations. Desnoyers is scheduled to be sentenced next month.

This just goes to show that you've got to be careful who you hire to remove asbestos from your properties. The property owners who hired Wood and Collins had to pay a lot more to remediate their properties than they would have spent had they hired a competent, reputable contractor in the first place. They will likely never recover the money Wood and Collins have been ordered to pay in restitution.

Conviction for Discharging Bleach into Sewer System

Many people don't realize that discharges of certain chemicals into public sewer systems violates the federal Clean Water Act. Our firm represents a number of wastewater treatment plants here in Alabama, so we see firsthand the effects of illegal discharges into sewer systems.

Last month, KIK (Virginia) LLC pleaded guilty in federal court in Virginia and agreed to pay a $75,000 criminal fine plus $25,000 in community service payments for negligent discharges of bleach to the local sanitary sewer system, which is a misdemeanor violation of the federal Clean Water Act. In addition to the criminal fine and community service payment, KIK has agreed to serve one year of probation, during which it will continue to develop and implement an environmental management system that it began developing during the investigation. It also will complete an environmental audit conducted by an independent auditor.

KIK operated a facility that manufactured bleach and other household products. In September 2003, local authorities discovered elevated concentrations of bleach in the sanitary sewer lines servicing the facility. An investigation revealed that, at that time and for a number of years before, under previous owners, employees at the plant washed bleach that had been spilled in the production and bottling process and off-specification bleach into the plant’s floor drains. The floor drains channeled the bleach into the plant’s drainage system, which lead to the city's sanitary sewer system. The plant did not have a permit to discharge bleach to the sewer system and did not monitor its discharges.

The Clean Water Act prohibits discharges into a sewer system of any pollutants that the discharger knows (or should know) could cause property damage. Bleach is a corrosive chemical that, in sufficient concentration, may damage metal and other materials used in the sewer system and is considered a pollutant under the Clean Water Act. Other substances which could cause problems if dumped into the local sewer system include oil and grease, ammonia, pesticides, cleaning products, and medications, to name just a few.