EPA v. CUNDIFF, RUDY AND CUNDIFF, CHRISTOPHER SETH

Case summary

THIS CASE INVOLVES VIOLATIONS OF CWA 404 AT TWO ADJACENT SITE IN MUHLENBERG COUNTY, KY. THE TWO SITE LIE ADJACENT TO EACH OTHER ON OPPOSITE SIDE OF A RAILROAD TRACK, WHICH RUN GENERALLY IN AN EAST-WEST DIRECTION. THE TRACT ON THE SOUTHERN SIDE OF THE RAILROAD TRACK (SOUTHERN TRACT) IS WHERE THE SECTION 404 VIOLATIONS WERE FIRST OBSERVED. THE DEFENDANTS LATER ACQUIRED THE TRACT OF LAND NORTH OF THE RAILROAD TRACKS (NORTHERN TRACT) AND CONTINUED THEIR ILLEGAL ACTIVITIES ON THIS TRACT AS WELL. THE DEFENDANTS IN THIS CASE ARE GEORGE RUDY CUNDIFF (MR CUNDIFF) AND HIS SON CHRISTOPHER SETH CUNDIFF. ALTHOUGH CHRISTOPHER CUNDIFF IS NAMED AS A DEFENDANT DUE TO HIS OWNERSHIP OF THE NORTHERN TRACT, MR. CUNDIFF IS CONSIDERED TO BE THE PRIMARY VIOLATOR BECAUSE HE HAS ADMITTED TO CONDUCTING ALL OF THE WORK ON BOTH TRACTS OF LAND. FOLLOWING NUMEROUS INSPECTIONS BY EPA (SEPT 9, 1992; OCT 14, 1998; JUNE 28, 2001; OCT 15-16, 2001), THE ARMY CORPS OF ENGINEERS (OCT 3, 1991; JUNE 30, 1992; DEC 16, 1993; OCT 15, 1997; AND JUNE 28, 2001), AND THE KY DIV OF WATER (OCT 1, 1991; OCT 3, 1991; AUG 14, 1998; NOV 5 & 10, 1998; JAN 20, 1999; AND SEPT 9, 2001), MR. CUNDIFF AND CHRISTOPHER SETH CUNDIFF WERE DETERMINED TO BE IN VIOLATION OF SECTIONS 301 AND 404 OF THE CWA. THE CUNDIFFS HAVE EXCAVATED APPROX 6,600 LINEAR FEET OF NEW DITCHES AT THE SITE AND ENLARGED ANOTHER 5,300 LINEAR FEET OF EXISTING DITCHES, THEREBY ADVERSELY IMPACTING THE SITE'S WETLAND HYDROLOGY. THEY HAVE ALSO DIRECTLY IMPACTED APPROX 35.6 ACRES OF WETLANDS THRU MECHANIZED LAND CLEARING AND FILLING ACTIONS. AFTER A BENCH TRIAL IN 2004 AND AN ADD'L JURISDICTIONAL HEARING IN 2007 JUDGE MCKINLEY FOUND THE CUNDIFFS IN VIOLATION OF THE CWA AND ORDERED RESTORATION OF THE IMPACTED WETLANDS AND EXCAVATED DITCHES. JUDGE MCKINLEY ALSO IMPOSED A $225,000 PENALTY WITH $200,000 SUSPENDED IF THE CUNDIFFS RESTORED THE SITES IN ACCORDANCE WITH THE COURT'S RESTORATION PLAN. HOWEVER, IN 2008, THE CUNDIFFS CONTINUED TO IMPACT WETLANDS ON THE SITES IN VIOLATION OF THE CWA AND THE COURT'S ORDER. IN A THIRD HEARING BEFORE JUDGE MCKINLEY IN 2009, THE JUDGE IMPOSED AN ADD'L $25,000 PENALTY AND AMENDED THE PREVIOUS WETLAND RESTORATION PLAN TO INCLUDE THE NEW VIOLATIONS. AS OF NOV 2013, THE CUNDIFFS COMPLETED ALL COURT ORDERED REQUIREMENTS; PAID A $50,000 PENALTY, RESTORED ALL IMPACTED WETLANDS AND DITCHES, AND COMPLETED THE MONITORING PERIOD FOR THE WETLAND VEGETATION RESTORATION ON THE SITES.

Defendants (2)

• CUNDIFF, CHRISTOPHER SETHNamed in complaintNamed in settlement
• CUNDIFF, RUDYNamed in complaintNamed in settlement

Facilities (1)

• LAND ADJACENT TO POND CREEK

  ADJACENT TO POND CREEK, GREENVILLE, KY, 42345

  Registry ID: 110010624681

Statutes cited

• CWA 301 — NPDES Discharge without a Permit
• CWA 404 — Permits for Dredge and Fill Material

Enforcement conclusions (1)

• CUNDIFF, RUDY AND CUNDIFF, CHRISTOPHER SETH (04-2009-C030)entered 2009-02-04

  Primary law: CWA

  Federal penalty: $50,000

Timeline (8 milestones)

• 2000-03-20Referred To Headquarters
• 2000-03-31Enforcement Action Data Entered
• 2000-07-07Referred To Dept Of Justice
• 2001-01-12Complaint Filed With Court
• 2009-02-04Concluded
• 2009-02-04Final Order Entered
• 2009-02-04Final Order Lodged
• 2012-02-21Enforcement Action Closed