EPA v. BUFFALO BD OF ED-PS 28

Case summary

EPA REGION II SEEKS RESOLUTION OF A 10-YEAR ENFORCEMENT STALEMATE WITH THE BUFFALO BOARD OF EDUCATION THROUGH THIS THREE-FACILITY REFERRAL. THE OBJECTIVE IS TO BRING THE BOARD INTO COMPLIANCE WITH 6 NYCRR SECTION 227.4 AND TO COLLECT APPROPRIATE CIVIL PENALTIES. ON 4/10/85, EPA ISSUED A NOV TO THE BUFFALO BOARD OF EDU- CATION. THE NOV, ISSUED PURSUANT TO CAA/113, 42 USC 7413, CITED THE BOARD FOR VIOLATIONS OF THE NY SIP STANDARDS FOR SMOKE EMISSIONS, 6 NYCRR SECTIONS 227.4. THE BOARD OWNS AND OPERATES THE THREE SCHOOLS WITH COAL-FIRED BOILERS AT ISSUE (P.S. 28, P.S. 59, ROOSEVELT ACADEMY). A NOV CONFERENCE WAS HELD ON 5/1/85, AT WHICH TIME THE BOARD'S REPRESENTATIVE PRESENTED THE BOARD'S POSITION, OUT- LINED THE BOARD'S PLANS TO BRING THE OFFENDING SCHOOLS INTO COMPLIANCE AND STATED THAT THE BOARD WOULD PROVIDE EPA WITH PERIODIC PROGRESS REPORTS. EPA RECEIVED ONE SUCH REPORT, TWO WEEKS AFTER THE NOV CONFERENCE. FOLLOW-UP INSPECTIONS CONDUCTED BY NYSDEC & EPA ESTABLISHED CONTINUING VIOLATIONS AT THE SCHOOLS IN EARLY 1986. THIS REFERRAL IS THE RESULT O OF THOSE DETERMINATIONS. PROPOSED RELIEF SOUGHT: ORDER AND COMPLIANCE SCHEDULE RE- QUIRING THE BOARD TO COMPLY WITH 6 NYCRR 227.4; CIVIL PENAL- TY OF $64,000 - CALCULATED IN ACCORDANCE WITH THE CLEAN AIR ACT CIVIL PENALTY POLICY. SIGNIFICANT NATIONAL OR PRECEDENTIAL LEGAL ISSUES: THE CASE OF U.S. V. NEW BOSTON COKE CORP., DOCKET NO. C-1-84-1427 (S.D. OHIO, 8/16/85), RAISES THE QUESTION OF WHETHER AN OPACITY VIOLATION, WITHOUT A MASS EMISSIONS TEST, IS EVIDENCE OF A VIOLATION OF THE MASS EMISSIONS STANDARDS. THE COURT SUGGESTS THAT AN OPACITY VIOLATION IS NOT, BY IT- SELF, SUFFICIENT TO PROVE AN EMISSIONS VIOLATION. EPA RE- GION II BELIEVES THAT THE CASE MAY HAVE BEEN INCORRECTLY DE- CIDED, AND AT THE VERY LEAST THAT THE COURT'S INTIMATION THAT OPACITY STANDARDS ARE NOT INDEPENDENT FROM MASS EMIS- SION REGULATIONS IS OVERBROAD DICTA. IN ANY CASE, THERE IS NO EVIDENCE DEMONSTRATING THE BOARD'S COMPLIANCE, IN CON- TRAST TO NEW BOSTON COKE.

Defendants (2)

• BUFFALO BD OF EDNamed in complaintNamed in settlement
• BUFFALO, CITY OFNamed in complaintNamed in settlement

Facilities (3)

• P.S. 28

  SOUTH PARK AND ABBOTT, BUFFALO, NY, 14218

  Registry ID: 110010761951

• P.S. 59

  775 BEST STREET, BUFFALO, NY, 14211

  Registry ID: 110001569302

• ROOSEVELT ACADEMY

  SKELLEN STREET, BUFFALO, NY, 14207

  Registry ID: 110010614861

Statutes cited

• CAA 110 — Implementation Plan for National Primary and Secondary Ambient Air Quality Standards

Enforcement conclusions (1)

• BUFFALO BOE & BUFFALO, CITY OFentered 1989-05-16

  Primary law: CAA

  Federal penalty: $10,000

Timeline (8 milestones)

• 1985-04-17Enforcement Action Data Entered
• 1986-09-29Referred To Dept Of Justice
• 1987-08-20Referred TO U.S. Attorney
• 1987-09-10Complaint Filed With Court
• 1989-05-16Final Order Lodged
• 1989-05-16Final Order Entered
• 1989-05-16Concluded
• 1995-03-30Enforcement Action Closed