Enforcing Environmental Laws Through International Capacity Building

Enforcing Environmental Laws Through International Capacity Building. The Division has developed considerable expertise in providing civil and criminal environmental enforcement and related training to practitioners, country officials, and judges, and it continues to get requests from both agencies and foreign countries to provide such training. Among other activities, Division attorneys assisted senior officials from ASEAN nations to create a Southeast Asia wildlife law enforcement network at a late 2005 Workshop entitled "Stopping the Illegal Wildlife Trade in Southeast Asia" and have conducted several follow-up training workshops throughout the area in 2006. Division attorneys also lectured at the Lobster Workshop sponsored by the Gulf and Caribbean Fisheries Institute (GCFI) in Colombia in late 2005 to discuss Lacey Act prosecutions based on foreign law violations. As part of their work with the Enforcement Working Group of the Commission on Environmental Cooperation (CEC), Division attorneys developed and presented, with representatives from Canada and Mexico, a judicial training program for Mexican judges in Mexico City and an innovative enforcement techniques conference in Washington, D.C.. The Division also helped organize numerous meetings in D.C. to share information and expertise with visiting foreign enforcement and other personnel from countries such as China, Belgium, and the U.K. Finally, as a member of the U.S. Coral Reef Task Force, the Division organized and led extremely well-received interagency enforcement training workshops in three Task Force member jurisdictions. Together with a number of other federal agencies the Division is currently working with the Commonwealth of Puerto Rico on a similar workshop.

PROTECTING INDIAN RESOURCES AND RESOLVING INDIAN ISSUES

Defending Tribal and Federal Interests in Water Adjudications. Water adjudications are complex cases, often involving the rights of thousands of parties. During the past year, the Division settled or achieved entry of a final decree based on a settlement in four major water rights adjudications in which the United States asserted water rights claims for the benefit of tribes. First, in Arizona v. California, the Supreme Court issued a consolidated final decree that ended 54 years of litigation in the oldest original action brought before the Court. The decree approved the settlements between the United States, the Quechan Indian Tribe, and the State of Arizona, and between the Quechan Tribe, the Metropolitan Water District of Southern California, and the Coachella Valley Water District. The decree also consolidated five separate decrees previously issued by the Court. Second, the United States sought the adjudication court's final approval of the Gila River Indian Community Water Rights Settlement Agreement in In re Gila River System and Source. The settlement, if approved, will be the largest water rights agreement in Arizona history, and will provide the Gila River Indian Community with 653,000 acre-feet of water annually. Third, in United States v. Washington Department of Ecology (Lummi), the Division worked with the Interior Department, the State of Washington, private water users, and the Lummi Indian Nation to craft a historic settlement of an important water rights lawsuit involving groundwater underlying the Lummi Reservation. Finally, the Division negotiated a consent decree resolving the United States' claims on behalf of Duck Valley Reservation in In re SRBA.

Protecting Tribal Hunting, Fishing, and Gathering Rights. The Division litigates to defend treaty-protected tribal hunting, fishing, and gathering rights. In United States v. Michigan, the United States, several tribes, the State of Michigan, and interested Michigan hunting and conservation groups negotiated the terms of an agreement in principle that, when formalized in a consent decree, will recognize the existence and extent of the inland hunting and fishing rights of five tribes in Michigan. In United States v. Washington, the Division worked with 17 tribes, the State of Washington, and commercial entities to reach a settlement of the tribes' treaty right to take shellfish.

Protecting Tribal Lands. The Division also defends and brings suits relating to over 50 million acres of land that the United States holds in trust for tribes. In Fidelity Exploration & Production Co. v. United States, the Division successfully defended a challenge to whether the United States had a colorable claim that a portion of the Tongue River bed lies within the Northern Cheyenne Indian Reservation.

Protecting Tribal Governmental Authority. Following a decision by the Supreme Court that Indian tribes lacked jurisdiction to bring criminal prosecutions against members of other Tribes, Congress enacted legislation reinstating that authority. The Division has successfully opposed two constitutional challenges to that legislation, and secured rulings from the Ninth Circuit that the legislation does not violate due process or equal protection. The two cases are Means v. Navajo Nation and Morris v. Tanner; certiorari has now been denied in both cases.

Upholding Agencies' Authority to Implement Indian Policies. In addition to actively defending the Secretary of the Interior's land trust acquisition authority against constitutional and administrative law challenges, the Division successfully resolved a challenge to the Secretary's ability to take land into trust for use by the Nottawaseppi Huron Band of Potawatomi Indians in CETAC v. Norton.

Defending Implementation of Indian Gaming Laws. The explosion in Indian gaming has brought an increasing number of challenges to its regulatory structure. The Division was successful in defending the constitutionality of provisions of the Indian Gaming Regulatory Act in Santee Sioux Tribe of Nebraska v. Kempthorne, in which the court rejected constitutional and statutory challenges to a regulation that provides procedures in lieu of a Tribal-State compact allowing gaming. The court also upheld the Interior Secretary's determination that casino games were not permitted under Nebraska law and could not be the subject of procedures in lieu of a compact. In Wyandotte Nation v. Sebelius, the Division preserved the exclusive jurisdiction of the United States to enforce Indian gaming laws on Indian lands in Kansas. In Sebelius v. Norton, the court affirmed that the Secretary acted properly in taking these same Indian lands into trust for the Wyandotte Nation as a mandatory acquisition directed by Congress and not subject to NEPA or the National Historic Preservation Act.

SUPPORTING THE DIVISION'S LITIGATORS

New ENRD Intranet. In April, the Executive Office rolled out its new and improved ENRDNET, an intranet site featuring daily announcements as well as one-stop access to more than 35 Division-wide services and programs with related guidance and online forms. The intranet upgrade has been well received by Division staff, and usage statistics (over 1 million page-views in the first 6 months) show that it is improving communication and knowledge management for the staff.

Computer System Upgrade. ENRD continued its commitment to providing top-quality technology for Division litigators with an upgrade to the JCON desktop office automation system in 2006. Over the first three months of the year, the desktop was upgraded with the latest software available in both the Microsoft and Corel office automation suites, the latest version of the Internet software, and new versions of the most-used litigation tools. This new desktop image was rolled out to all employees with minimal disruption. The Division also upgraded its video-teleconferencing hardware with portable systems that allow video-conferencing where a network system drop is available.

Automated Litigation Support. The Office of Litigation Support provided outstanding support to some of ENRD's most complex cases, making excellent use of technology, contract staff, and in-house expertise. We provided on-site trial support for major civil and criminal cases across the country, in locations as diverse as San Diego, Portland, Salt Lake City, Miami, Ohio, and Virginia. Case support ranged from assisting with document management to establishing technological infrastructure that can link the courtroom and hotel prep rooms with DOJ offices in DC or elsewhere. The litigation support team met complex demands for physical and electronic security of documents.

The Office of Litigation Support continued its exemplary "back office" support of trial teams this year with the creation of a mock electronic courtroom which trial teams can use to practice litigating in the new, entirely electronic, courtroom environment. The Division also saw growth in the use of technology through the expanded use of its secure extranet connection over which trial teams share documents with experts, outside agency counsel and other interested parties. ENRD's document scanning lab and other innovative approaches to automated litigation support have served as models of best practices that have been emulated by other DOJ components and outside agencies.

Security and Emergency Planning. In 2006, ENRD pursued an aggressive agenda for security and emergency planning. The Division completed writing a comprehensive Continuity of Operations Plan (COOP Plan) several months ahead of the required Departmental schedule and began required employee training on the Plan (which will continue into 2007). As part of the Plan, the Division's information technology staff developed a sophisticated mirror network system that will serve as an instantly available backup, current to within 24 hours, should the primary computer network system become unavailable due to an area-wide emergency event. About two-thirds of ENRD's employees have the capability to access the Division's computer network from a remote site if the office buildings are not fit for occupancy. This network redundancy ensures a more flexible and efficient work capability for ENRD employees. The Assistant Attorney General also approved extension of a telework policy for attorneys which can be expanded, if necessary, in support of the COOP and other emergency planning initiatives.

The Division is working with building security committees and other Federal agencies to ensure that physical security in our buildings continues to improve to the highest levels needed for the health and safety of all our employees. We have begun implementing the changes required for the issuance of government-wide identification cards mandated under Homeland Security Presidential Directive 12 (HSPD-12).

President's Management Agenda. ENRD has been an active participant in the DOJ initiatives to improve the management of the Federal Government under the President's Management Agenda. The Division contributes to the Departmental rating for three initiatives: Human Capital, Budget and Performance Integration, and e-Government. We were awarded a "green" score for each quarter of 2006 in which we received a "report card" rating. Beyond the regular quarterly contributions, ENRD also has worked with the DOJ Human Resources office on the Skills Gap survey analysis, Human Capital Survey, and the updating of the Department's Human Capital Strategic Plan.

Support Programs. ENRD's Human Resources staff implemented an Honors Paralegal Program, as part of the Federal Career Intern Program, that will provide a strong recruiting avenue for entry-level paralegal support. Several litigating sections and individual trial teams elected to participate in a pilot program for mail scanning, which allowed them to receive all of their mail in electronic format after it had already been opened and catalogued to the proper case. This pilot program was successful and will become the basis for a fully electronic mail and file management program to be implemented in 2007.

In compliance with new requirements from the Office of Management and Budget, the Comptroller's Office assisted the Division with implementing stronger internal controls over our financial programs. The Office also provided updated training to all attorneys on the use and management of their purchase cards for litigation expenses.

ENRD's Denver Field Office staff was moved into upgraded space in the Rogers Federal Building this spring. The space includes ergonomic office design, and better security for employees.

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Federal Government, State of Hawaii, and City and County Of Honolulu Agreement Will Address Vulnerabilities That Led to Waikiki Sewage Spill

WASHINGTON -- The Department of Justice, the U.S. Environmental Protection Agency, the Hawaii Attorney General's Office, and the Hawaii Department of Health (DOH) have reached an interim agreement with the City and County of Honolulu (CCH) that will correct the most significant problems in Honolulu's wastewater collection system. This settlement resolves a civil enforcement action that the United States and the state have filed against CCH.

"Today's settlement shows a commitment by the City and County of Honolulu to protect human health by making significant improvement to its wastewater system," said Matthew J. McKeown, Acting Assistant Attorney General for the Justice Department's Environment and Natural Resources Division. "We are pleased to have worked cooperatively with our federal and state partners to reach this important settlement."

"This agreement will result in measures by the city to prevent catastrophic spills from Oahu's most vulnerable sewage pipes," said Wayne Nastri, the EPA's Administrator for the Pacific Southwest region. "We will continue to work with the city to improve its wastewater system."

"This settlement is an important step in improving Honolulu's waste water management, and we look forward to further steps by the city," said Laurence Lau, DOH Deputy Director for Environmental Health. "Improvements will happen faster when the city, state, and United States agree on the work to be done."

The city's sewage collection system for Oahu contains numerous force mains. Force mains are pressurized pipes which carry sewage from residences, as well as commercial and industrial sources, to wastewater treatment plants. The EPA, DOH and the city analyzed these force mains and concluded that force mains at six locations were most vulnerable to future failure: Beachwalk, Ala Moana, Hart Street, Kaneohe/Kailua, Waimalu and Kahala.

As in other cities, the force mains in Honolulu are a critical link in the network of pipes that convey sewage to the city's wastewater treatment plants. Because force mains operate under pressure, even a small break can result in a large spill and a lengthy repair job. Unlike gravity flow pipes, force mains cannot carry sewage flow during the repair process. In the event a break occurs in a large volume force main and no backup is available, there is often no alternative but to release the untreated sewage to nearby waterways.

On March 24, 2006, Honolulu's Beachwalk force main burst, spilling approximately 50 million gallons of sewage. For five days before repairs could be made, the city pumped raw sewage into the Ala Wai canal, which runs into the Pacific Ocean. Contamination from this event resulted in high levels of bacteria in coastal waters, and led to the closure of beaches in Waikiki for one week. This interim settlement is intended to prevent repeated large force main spills. The settlement requires Honolulu to:

*Construct new replacement force mains at Ala Moana, Beachwalk and Kaneohe/Kailua.

*Assess the condition of six vulnerable force mains, and begin implementation of necessary repairs to prevent future sewage spills.

*Conduct a condition assessment of the Beachwalk pump station to determine whether repairs or replacement of the pump station is necessary.

*Submit within a year, site-specific spill contingency plans for each of the six vulnerable force mains.

*Provide for back-up force mains at four of these force mains at Beachwalk, Ala Moana, Kaneohe/Kailua, and Hart Street.

The current agreement is an interim settlement because it addresses only some of the problems in CCH's wastewater collection system. In addition to the force mains addressed in the agreement announced today, CCH's wastewater collection and treatment system includes many other features which are the subject of other regulatory processes and legal proceedings. As a next step, it will be the intention of the federal and state governments to attempt to reach a comprehensive resolution to CCH's remaining wastewater collection and treatment challenges.

The settlement, lodged today in U.S. District Court for the District of Hawaii, will be available for a 30-day public comment period before the U.S. seeks court approval of the settlement A copy of the consent decree is available on the Department of Justice Web site at http://www.usdoj.gov/enrd/Consent_Decrees.html.

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EPEC Polymers Agrees to Settlement Worth $ 23.4 Million to Clean Up Texas Superfund Site

WASHINGTON - EPEC Polymers Inc., headquartered in Houston, has reached a settlement worth an estimated $ 23.4 million regarding the Petro-Chemical Systems Inc. Superfund Site in Liberty County, Texas, the Justice Department and Environmental Protection Agency (EPA) announced today.

The company will perform investigation and cleanup work estimated to cost $ 13.4 million at as part of a settlement lodged today in the U.S. District Court for the Eastern District of Texas. In addition, EPEC will reimburse EPA for $ 6.9 million of its past costs and approximately $ 3.1 million for costs incurred after July 31, 2004. A portion of the payments will be used to fund EPA's oversight of cleanup activity at the site, which is also known as the "Turtle Bayou Site." The balance will be paid into the Superfund, a revolving fund established by Congress and used to pay for cleanups at such sites.

The Justice Department sued EPEC in 2002 to secure cleanup work and recover costs on behalf of EPA under the Comprehensive Environmental Response Compensation and Liability Act. EPEC's corporate predecessor, Tenneco Chemicals, disposed of wastes at the site that were generated from its vinyl chloride monomer facility in Pasadena, Texas. The United States had filed an earlier lawsuit in 1994 in connection with the same site against other parties including Atlantic Richfield Company (ARCO) and ARCO Chemical Company (ACC). That earlier suit was resolved in 1998 by a settlement that required those companies to perform substantial cleanup work. The agreement reached today with EPEC requires the cleanup of virtually all the remaining contamination at the site.

"Vigorous enforcement of the Superfund program should secure the performance of work by responsible parties and reimbursement of cleanup costs expended by the EPA. That is exactly what this settlement accomplishes," said Matthew J. McKeown, Acting Assistant Attorney General for the Justice Department's Environmental and Natural Resources Division. "This agreement takes an important step towards completing the cleanup of this longstanding Superfund Site."

"EPA vigorously pursues those that contaminate our environment," said Granta Nakayama, assistant administrator for EPA's Office of Enforcement and Compliance Assurance. "This shows that EPA will make sure that the polluter pays for Superfund site cleanups."

"The Environmental Protection Agency will continue to vigorously enforce our nation's environmental laws," said EPA Regional Administrator Richard E. Greene. "Our enforcement staff works very closely and effectively with the Department of Justice to ensure a cleaner and healthier environment."

The site is located approximately 15 miles southeast of the city of Liberty and sixty-five miles northeast of Houston. Land use in the area near the Turtle Bayou site is divided among crop-land, pasture, range, forest, and small rural communities. In the late 1960s, the past owners of the Turtle Bayou Site, Donald R. Lang and Wallis W. Smith, allowed waste transport companies to use the Turtle Bayou Site for illegal disposal of wastes until about 1979.

EPA and the state of Texas' response actions at the site included cleanup of contamination from 1987 until 1988 along the then unpaved Frontier Park Road which runs through the site. This work included excavation and on-site containment of 5900 cubic yards of highly contaminated soil. In 1998, EPA selected cleanup remedies for the other areas of known contamination at the site. Some of those remedies were performed by ARCO and ACC under the 1998 consent decree. The major components of the remedy for contaminated soil were soil vapor extraction, catalytic thermal destruction of the extracted vapor, and groundwater sparging. When all work is completed and costs fully reimbursed, the total expenditures for the Turtle Bayou Site are likely to exceed $ 59 million.

The proposed consent decree is subject to a 30-day public comment period and final court approval and will be available on the Justice Department Web site at http://www.usdoj.gov/enrd/Consent_Decrees.html.

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United States Announces Clean Air Act Settlement with PSEG Fossil LLC for Violations of 2002 Consent Decree

Utility Required to Pay Significantly Increased Penalties and Reduce Emissions

WASHINGTON -- The U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice today announced that they have lodged with federal district court in New Jersey a Clean Air Act (CAA) settlement with PSEG Fossil LLC related to PSEG's failure to comply with a 2002 consent decree requiring installation of pollution controls at its coal-fired power plants in Jersey City and Hamilton, N.J. This new settlement, which was done in coordination with the state of the New Jersey and which is subject to court approval, secures additional air pollution reductions, tighter controls, valuable environmental projects and a significant penalty.

Under the terms of today's settlement, PSEG will be required to pay a civil penalty of $ 6 million--$ 4.25 million to the federal government and $ 1.75 million to New Jersey PSEG will also perform environmental mitigation projects valued at $ 3.25 million to reduce particulate matter from diesel engines in New Jersey.

"The new agreement with PSEG will benefit New Jersey's environment," said Alan J. Steinberg, EPA Regional Administrator. "The agreement contains new, more stringent requirements than those to which we originally agreed. Failure to comply with a consent decree is serious business, and we will hold the parties accountable until every obligation is satisfied. These changes will advance our commitment to improving air quality for New Jersey and its neighbors."

"PSEG failed to live up to its obligations under the 2002 Consent Decree, putting air quality and public health at risk," said Granta Y. Nakayama, EPA Assistant Administrator for the Office of Enforcement and Compliance Assurance. "This new agreement shows that there are serious consequences to violating court orders like the 2002 Consent Decree, and that EPA will take the necessary steps to enforce its prior agreements to ensure that the public is protected from excessive air pollution."

"This amended settlement provides increased public health benefits over the original settlement," said Sue Ellen Wooldridge, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division. "The new hardware commitments in the Amendment add assurance that toxic mercury emissions will be dramatically reduced and will also provide important long-term reductions in NOx and SO2 emissions."

The amended agreement, signed by the United States and the state of New Jersey, requires the electric utility to accelerate the installation of air pollution control equipment at its Mercer plant, to install additional control equipment that was not previously required and to carry out a host of interim pollution control measures in exchange for delaying the installation of pollution controls required under the original timeline at the Hudson Plant.

Under the 2002 consent decree, PSEG was required to install pollution control equipment at the Mercer and Hudson plants to reduce sulfur dioxide, nitrogen oxide and particulate matter (PM), and take steps to reduce mercury and carbon dioxide emissions. The utility did install pollution control equipment for nitrogen oxides known as selective catalytic reduction (SCR) at its Mercer plant. SCR is capable of reducing nitrogen oxides (NOx) by approximately 90%. However, PSEG Fossil has failed to take the necessary steps to install required pollution control equipment at the Hudson facility as required by the original settlement.

To compensate for the pollution reductions not achieved due to PSEG's noncompliance, PSEG will be required to install an acid gas scrubber--state-of-the-art technology for removing sulfur dioxide from exhaust gases produced by the power plant -- at one of the Mercer plants by 2010, two years earlier than the previous requirement to install it by 2012. PSEG will also install an acid gas scrubber at the other Mercer plant in 2010 as required by the 2002 agreement. PSEG Fossil must also now meet a new NOx emissions limit at the Mercer plant starting Jan. 1, 2007. In addition, the company will install baghouses or dust collection chambers at its Mercer plant, which were not required under the original agreement, to cut pollution more than a less effective technology it was previously using. Lastly, PSEG is required to use carbon injection systems, not previously required, to reduce mercury emissions from the Mercer facility.

At the Hudson Power Plant, PSEG will be required to take interim steps to reduce emissions of NOx, sulfur dioxide (SO2) and PM until the required pollution control equipment is installed or the unit is shut down. These interim measures include year-round operation of the existing NOx control equipment utilizing selective non-catalytic reduction to reduce NOx, use of ultra-low sulfur coal, compliance with annual emission caps for NOx and SO2, and operation of an electrostatic precipitator and a fly ash conditioning system to control PM. Installation of permanent controls will be delayed until Dec 31, 2010, unless PSEG chooses to shut down the unit altogether in 2008. If PSEG does not shut down the Hudson facility and installs permanent controls, PSEG will also be required to install a more effective baghouse than previously required and use a carbon injection system to reduce mercury emissions from this facility after the pollution control equipment is installed.

As a result of the more stringent emission limits and installation of controls, the new settlement will likely result in ever greater reductions in air pollution than agreed to in the original consent decree. For the period of the consent decree, PSEG will significantly reduce its emissions of NOx by 534 tons, SO2 by 257 tons and fine particle emissions by 252 tons.

The utility has also elected to shut down other fossil fuel burning units in Kearny, N.J. These shutdowns will further reduce air pollution PSEG will be required to install continuous emissions monitoring systems that measure pollutants emitted into the atmosphere in exhaust gases for soot and mercury at its Hudson and Mercer plants. These new requirements will enable the company to continuously track these pollutants and enable it to take appropriate steps to address any problems observed. The EPA will use information from these monitors to determine PSEG's compliance with the emissions limits.

Should PSEG fail to meet the requirements of the amended consent decree, they will be subject to stipulated penalties, ranging from $ 10,000 per day to $ 32,500 per day contingent on the type and length of the violation. The amendment also imposes new recordkeeping and reporting obligations to ensure that PSEG stays on schedule with the terms of the agreement.

SO2 and NOx are significant contributors to acid rain; NOx also increases low level ozone, which causes smog; fine particulate matter causes haze. All of these pollutants cause severe respiratory problems and exacerbate cases of childhood asthma.

The modified consent decree, which is subject to a 30-day public comment period and final court approval, is available on the Justice Department Web site at http://www.usdoj.gov/enrd/Consent_Decrees.html. More about the EPA's efforts in combating air pollution is available at http://www.epa.gov/Region2.

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