1 Year Jail Term for Hazardous Material Transport Without Placard

On April 9, 2019, a court sentenced Ernesto Alvarez, Jr., to one year and one day of incarceration, followed by six months’ community confinement (as a special condition of three years’ supervised release), for transporting hazardous materials (specifically consumer-grade fireworks) without proper placarding (49 U.S.C. § 5124).

 

On May 23, 2016, Alvarez drove a truck containing illegal fireworks to a warehouse in South Gate, California. Upon arrival Alvarez and four others started unloading the truck, but fled and hid in the warehouse when investigators arrived. The truck contained more than 8,000 pounds of illegal fireworks, including at least 7,000 pounds of fireworks manufactured in China with a hazard classification of “1.4G.” The truck did not contain any placards identifying the contents as “Explosives 1.4G.”

 

The warehouse held more than 75,000 pounds of illegal fireworks, including those with hazard classifications of “1.1G,” “1.3G,” and “1.4G,” as well as approximately 7,500 explosive devices commonly known as “M-80s” and additional materials used to manufacture “M-80s.” Four semi-trailers located in the parking lot also contained substantial quantities of illegal fireworks. In total, emergency responders removed approximately 210,000 pounds of consumer-grade fireworks (hazard class “1.4G”), professional-grade fireworks (hazard class “1.3G”), mass explosion fireworks (hazard class “1.1G”), and explosives manufacturing materials from the warehouse, the truck, and four semi-trailers.

 

This case was investigated by the EPA Emergency Response Unit and the Los Angeles Fire Department’s Arson Investigation Unit, with assistance from the DOT Office of Inspector General.

 

 

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The Allegheny County Health Department (ACHD) announced that it has reached a draft settlement agreement with U.S. Steel to address a 2018 order and all subsequent penalty appeals for violations from 2018-19. The agreement requires the company meet the improvement criteria of the 2018 enforcement order, but also provides for additional, impactful

concessions.

 

“This settlement ensures that not only are the requirements of the 2018 order satisfied, but there will be major improvements to the battery operation,” said Dr. Karen Hacker, ACHD Director. “While we did not get everything we wanted, this settlement represents significant progress and includes vitally important components related to transparency and community benefit. We take our responsibilities to improve air quality very seriously, and this draft agreement is another step in the ongoing efforts to ensure clean air for all.”

 

The terms of the draft settlement agreement include the following:

 

Repairs to the batteries and battery operations to help reduce fugitive and stack emission

 

Commitments to improve transparency

 

Community benefit provisions

 

These improvements are expected to have a significant impact on emissions from the U.S. Steel Clairton Coke Works. The department will work to calculate specific estimates for future release. In order to provide U.S. Steel with predictability, ACHD has agreed to stipulate penalties for violations based on the department’s civil penalty policy, clarify ambiguities between regulation and source testing requirements, and, define the procedures for developing new coke oven emission standards.

 

Given the critical nature of the settlement agreement, it is being put out for a 30-day public comment period which began on July 1, 2019.

 

 

On April 11, 2019, a grand jury returned a six-count indictment naming three companies, two managers, and a technician with violations related to tampering with emission control devices on heavy-duty diesel trucks. Diamond Environmental Services, LP (DES), Diamond Maintenance Services, LLC (DMS) and Diamond Solid Waste Services, Inc. (DSW) (collectively “Diamond”), plus owner and manager Arie Eric De Jong III, manager Warren Van Dam, and technician Jorge Leyva Rodriguez of ECM Diesel Programming, are charged with conspiring to manipulate the electronic control module (ECM) on Diamond’s fleet of heavy duty diesel trucks.

 

In 2008, the EPA promulgated regulations requiring companies to equip all heavy-duty diesel trucks with a computerized system of electronics and sensors that monitored all emission-related engine systems and components. If a problem occurred within the emission system (i.e. the Diesel Particulate Filter, or DPF,) became dirty with soot requiring “regeneration” or burning off) the monitoring system would cause a “Malfunction Indicator/Check Engine Light” to turn on in the truck’s cabin. Failure to resolve this hardware emission system problem caused the monitoring system to limit the truck’s top speed to as low as five miles per hour (commonly referred to as “limp mode” or “power reduced mode”), providing an incentive for the truck’s operator to repair the truck.

 

Between 2015 and 2018, the defendants agreed to reprogram the ECMs to avoid the costs associated with cleaning the DPFs on Diamond’s trucks. Employees removed the ECMs from their trucks and shipped them out of California for reprogramming. Rodriguez travelled from Mexico to Diamond locations in San Marcos and San Diego to reprogram the ECMs.

 

In order to keep trucks operating with dirty DPFs, employees punched holes through the filters’ cores, allowing air to flow through this portion of the emission system, without filtration. Employees prepared false opacity (smog) test results on trucks with emissions problems, or ran tests on entirely different trucks to achieve passing results on faulty trucks.

 

When the defendants learned that a grand jury had been convened to investigate this matter in May 2018, Rodriguez returned to the Diamond facilities to reprogram the software of the fleet’s ECMs to conceal the 2016 alterations. Prosecutors charged all defendants charged with conspiracy (18 U.S.C. § 371). Additionally, DES, Jong, and Rodriquez are charged with Clean Air Act tampering with a monitoring device and tampering with evidence (42 U.S.C. § 7413(c)(2)(C), 18 U.S.C. § 1512(c)(1)). Jong also is charged with committing an offense while on pre-trial release (18 U.S.C. § 3147).

 

This case was investigated by the Federal Bureau of Investigation and the EPA Criminal Investigation Division.

 

 

Paul Potter pleaded guilty to violating the Toxic Substance Control Act (15 U.S.C. § 2615(b)). Sentencing is scheduled for July 26, 2019. Potter owned the Chelsea Environmental Corporation (Chelsea Environmental), an asbestos abatement company in Virginia. The Hunting Point

Apartment Complex consisted of three buildings, one of which was torn down during a bridge expansion project. The other two buildings, both eight-stories high, were slated for renovation. After a survey revealed significant amounts of asbestos, a real estate developer hired Potter’s company to remove and dispose of non-friable asbestos from 530 apartments.

 

Between October 2013, and March 2014, under Potter’s supervision, workers improperly removed asbestos-containing material from the apartments. During the renovation work, tenants occupied most of the apartments. Tenants found dry chunks of asbestos in their apartments, and inspectors located approximately 50-60 garbage bags containing vinyl asbestos tile and linoleum in an open dumpster. Many of the workers failed to wear protective equipment and were not certified to handle asbestos.

 

This case was investigated by the DOT Office of Inspector General with assistance from the EPA Criminal Investigation Division.

 

 

Recycling executive Brian Brundage was sentenced on April 12, 2019 to three years in federal prison for illegally landfilling potentially hazardous electronic waste as part of a scheme to re-sell the materials and avoid paying income taxes.

 

Brundage owned Intercon Solutions Inc. and EnviroGreen Processing LLC, which purported to recycle electronic waste on behalf of corporate and governmental clients. Brundage represented to the clients that the materials would be disassembled and recycled in an environmentally sound manner. In reality, from 2005 to 2016, Brundage caused thousands of tons of e-waste and other potentially hazardous materials to be land- filled, stockpiled, or re-sold at a profit to companies who shipped the materials overseas. Brundage evaded $743,984 in federal taxes by concealing the income he earned from re-selling the e-waste and from paying himself funds that he falsely recorded as Intercon business expenses. Brundage spent the purported expenses for his own personal benefit, including wages for a nanny and housekeeper, jewelry purchases, and payments to a casino in Hammond, Ind.

 

Brundage, 47, of Schererville, Ind., pleaded guilty last year to one count of wire fraud and one count of tax evasion. U.S. District Judge Joan Humphrey Lefkow imposed the three-year prison sentence and ordered Brundage to pay more than $1.2 million in restitution to his victims.

 

The sentence was announced by John C. Kocoras, First Assistant United States Attorney for the Northern District of Illinois; Jennifer Lynn, Special Agent-in-Charge of the EPA’s Criminal Investigation Division; Gabriel L. Grchan, Special Agent-in-Charge of the Chicago office of the Internal Revenue Service Criminal Investigation Division; James M. Gibbons, Special Agent-in-Charge of the Chicago office of the U.S. Immigration and Customs Enforcement’s Homeland Security Investigations; and Jeffrey Ryan, Special Agent-in-Charge of the U.S. General Services Administration’s Office of Inspector General, Great Lakes Regional Investigations Office. The Hong Kong Environmental Protection Department provided valuable as- sistance in the investigation. The government was represented by Assistant U.S. Attorneys Sean J.B. Franzblau and Kelly Greening of the Northern District of Illinois, and Special Assistant U.S. Attorney Crissy Pellegrin of the EPA.

 

Brundage admitted in a plea agreement that he caused employees of Chicago Heights-based Intercon and Gary, Ind.-based EnviroGreen to sell some of the e-waste and other materials to vendors who Brundage knew would ship the materials overseas. Some of the materials contained Cathode Ray Tubes, which are glass video display components of computer and television monitors, and which contain potentially hazardous amounts of lead. Brundage admitted causing multiple tons of CRT glass and other potentially hazardous materials to be destroyed in environmentally unsafe ways and later landfilled.

 

“Improper management of cathode ray tubes can pose risk to human health and the environment, as they contain significant quantities of lead,” said Special Agent-in-Charge Lynn. “This case demonstrates that EPA and our law enforcement partners are committed to protecting the environment and ensuring that companies follow the law.”

 

“The GSA Office of Inspector General will aggressively pursue contractors who make false representations in order to obtain federal business,” said Special Agent-in-Charge Ryan.

 

“This sentence should serve as a reminder that HSI will continue to work with its federal, state and local partners to pursue offenders who endanger others by engaging in fraud and deceit,” said Special Agent-in-Charge Gibbons.

 

The case was investigated by EPA’s Criminal Investigation Division, IRS, ICE’s Homeland Security Investigations, and GSA’s Office of Inspector General, with assistance from the Hong Kong Environmental Protection Department. The case was prosecuted by a DOJ litigation team.

 

 

The Pennsylvania Department of Environmental Protection denied Erie Coke’s application to renew its Title V operating permit and has filed a complaint for injunctive relief in Erie County Court seeking to shut down the coke production facility following years of numerous repetitive environmental violations.

 

“For more than a decade, DEP has received persistent complaints from the community and has continuously cited Erie Coke for various environmental violations. DEP has given Erie Coke many opportunities to address violations and comply with state and federal laws. Our staff have participated in stakeholder meetings and have worked with the community, elected officials and the company to address issues and concerns,” said DEP Secretary Patrick McDonnell. “Unfortunately, the frequency and severity of Erie Coke’s violations have only increased during our review of its permit renewal and the operator has offered no tangible causes for its non-compliance nor viable plans to assure future compliance.

 

“After careful consideration of Erie Coke’s history of environmental violations and the company’s lack of intention or ability to comply with state and federal laws, DEP has made the rare decision to not only deny the company’s application to renew its operating permit, but also seek a court injunction to shut down the facility.”

 

Erie Coke has a significant and lengthy history of non-compliance with environmental regulations and has received numerous past enforcement actions, including notices of violations, shut down orders, consent decrees, civil penalty assessments, and unilateral enforcement orders by both DEP and the U.S. Environmental Protection Agency.

 

“DEP does not take this action lightly. DEP understands and appreciates the importance of industrial facilities to local communities. DEP proactively works with operators to achieve and maintain compliance and industrial sites across Pennsylvania demonstrate that economic success and environmental compliance are not mutually exclusive ideas,” McDonnell said. “Ultimately, DEP’s responsibility is to ensure that industrial facilities comply with environmental laws and Erie Coke has a fundamental responsibility to comply with those laws to maintain facility operations. Unfortunately, Erie Coke has failed to do so.”

 

The plant was nearly shut down in 2010 by DEP before a court-ordered settlement was reached. Under a 2010 consent decree with DEP, Erie Coke rebuilt Battery A and made certain repairs to Battery B, but Battery B has been in continuous operation without being rebuilt. Erie coke also paid a fine of $4 million.

 

Erie Coke has had violations since the 2010 consent decree terminated. Beginning in June 2017, DEP started to identify an increasing number of air quality violations at the facility.

 

On Feb. 4, 2019, DEP issued an order to Erie Coke requiring Erie Coke to complete an investigation into the cause of recent increases in air quality violations associated with the operation of the pushing emission control system and increased opacity of emissions from the coke oven battery stack. In addition, the order required Erie Coke to submit a plan for the installation of a back-up hydrogen sulfide removal system to prevent the combustion of coke oven gas, which contains excess quantities of hydrogen sulfide.

 

Nearly two months later, on March 31, 2019 Erie Coke experienced a large release from a wastewater tank on the property. DEP estimates that over 30,000 gallons of wastewater were released from the tank that provides pretreatment of wastewater prior to its conveyance to the City of Erie sewage treatment plant. The wastewater was suspected to contain contaminants from the coking process including benzene, cyanide, naphthalene, ammonia and several other constituents. Erie Coke recovered contaminated water and material from the spill and repaired the wastewater tank but DEP did not allow Erie Coke to continue using the tank.

 

On May 6, DEP placed Erie Coke on the air quality compliance docket for nearly 80 unresolved air quality violations over the past two years. The Pennsylvania Air Pollution Control Act and DEP regulations prevented DEP from renewing Erie Coke’s federal Title V operating permit if the violations were not resolved and until DEP determined that Erie Coke had the intention and ability to comply with the Air Pollution Control Act and the federal Clean Air Act.

 

On June 4, DEP sent a notice of violation with more than a dozen violations based on a May 15 inspection. Because Erie Coke has failed to adequately demonstrate an ability or its intent to comply, DEP issued a denial of Erie Coke’s application to renew its Title V Operating Permit.

 

Erie Coke owns and operates the foundry coke production facility, located at the foot of East Avenue between Presque Isle Bay and the Bayfront Highway in the City of Erie. The facility includes 58 coke ovens, a coke oven battery underfiring system, two boilers, a byproduct tar recovery system, and a wastewater treatment system.  Thirty-five of the 58 coke ovens in the coke oven battery were put into operation at the facility in 1942 (Battery B). Twenty-three of the 58 coke ovens in the coke oven battery were put into operation at the Facility in 1952 (Battery A).

 

 

The California Air Resources Board (CARB) launched an investigation in March 2015 and discovered that the St. Louis-based brewing company had failed to properly self-inspect 19 diesel trucks, as required by the Periodic Smoke Inspection Program (PSIP), to ensure they met state smoke emission standards. In addition, CARB staff discovered that Anheuser Busch was not in compliance with the State’s Truck and Bus Regulation because they failed to meet required compliance deadlines. The company’s fleet headquarters is in San Diego.

 

“No business large or small has the right to shirk responsibility when it comes to proper maintenance of the trucks it uses,” said CARB Enforcement Division Chief Todd Sax. “California has some of the country’s poorest air quality and because of this, our laws are tough to protect public health.  All businesses must do their part to ensure their fleets are fully compliant with California’s anti-pollution regulations that are designed to clean our air and protect our children.”

 

Anheuser Busch agreed to pay a $500,000 fine and to comply with all applicable CARB programs. The company also agreed to instruct its vehicle operators to comply with California’s anti-idling regulations, ensure that staff responsible for compliance with smoke-inspection program attend training classes, and provide documentation to CARB that the smoke inspection requirements are being met for the next two years.

 

Of the total, $250,000 will go to the Air Pollution Control Fund to support air pollution research.  The remaining $250,000 will go to the South LA Urban Greening and Community Forestry Project, where it will fund the planting of 300 trees over a five-year period in the public parkways of disadvantaged communities in South Los Angeles County. To facilitate the project, and to ensure community engagement and participation, California Greenworks will host 15 neighborhood outreach events and 10 South Los Angeles Community Forestry Workshops featuring certified arborists.

 

Diesel exhaust contains a variety of harmful gases and more than 40 other known cancer-causing compounds. In 1998, California identified diesel particulate matter as a toxic air contaminant based on its potential to cause cancer, premature death and other health problems.