EPA v. CONRAIL & LOWER LAKE

Case summary

CONRAIL OWNS A COAL HANDLING AND STORAGE FACILITY LOCATED ON THE BANKS OF THE ASHTABULA RIVER, E=NEAR ASHTABULA, OHIO. THE FACILITY IS OPERATED FOR CONRAIL BY A CONTRACTOR, THE LO LOWER LAKE DOCK COMPANY (HEREINAFTER, 'LOWER LAKE'). IN 1968, CONRAIL'S PREDECESSOR, PENN CENTRAL TRANSPORTATION CO. INSTALLED A COAL CONVEYOR TO TRANSPORT COAL RECIEVED AT THE HANDLING FACILITY ON THE EAST SIDE OF THE RIVER TO STORAGE PILES ON THE WEST SIDE. THE UNENCLOSED CONVEYOR PASSES ABOVE COAST GUARD STATION ASHTABULA. THE COAL CONVEYOR IS A CONSTANT SOURCE OF FUGITIVE COAL FINES AND SLURRY WHICH ARE DROPPED FROM THE CONVEYOR AND ENTER THE RIVER. BECAUSE THE COAST GUARD STATION IS ADJACENT TO AND BENEATH THE CONVEYOR, ITLIKEWISE IS OFTEN DRENCHED WITH THE SLURRY AND COATED WITH COAL FINES. IN ADDITION, OPEN STORAGE PILES ON THE WEST SIDE OF OF THE FACILITY ARE A CONSTANT SOURCE OF AIR- BORNE COAL DUST AND COAL CONTAMINATED RUN-OFF. NEITHER CON- RAIL NO LOWER LAKE HAVE AN NPDES PERMIT AUTHORIZING THE DIS- CHARGE OF COAL FINES, SLURRY, OR COAL PILE RUNOFF INTO THE THE VIOLATIONS OF THE CLEAN WATER ACT BY CONRAIL AND LOWER LAKE ARE UNCOMPLICATED. THEIR SIMPLICITY IS OBSCURED, HOW- EVER, BY THE TORTUOUS ENFORCEMENT HISTORY OF THE ASHTABULA FACILITY. IN 1971, THE UNITED STATES FILED AN ACTION IN THE U.S. DISTRICT COURT, NORTHERN DISTRICT OF OHIO, AGAINST PENN CENTRAL TRANSPORTATION COMPANY. THE UNITED STATES ALLEGED THAT THE OPERATION OF THE SUBJECT COAL CONVEYOR BY PENN CENTRAL CONSTITUTED A NUESANCE. NO STATUATORY THEORIES FOR RELIEF WERE PLED. IN JUNE 1973, A CONSENT JUDGMENT WAS EN- TERED REQUIRING PENN CENTRAL AND ITS SUCCESSORS TO OPERATE THE CONVEYOR IN A MANNER INTENDED TO MINIMIZE THE AMOUNT OF PARTICULATES RELEASED AND TO PERIODICALLY CLEAN COAL DUST FROM THE COAST GUARD'S BUILDINGS. CONRAIL, IN ACCORDANCE WITH THE JUDGMENT, WASHES DOWN THE COUAST GUARD'S BUILDINGS EVERY TWO MONTHS. THE PECULIAR CLEANING ARRANGEMENT HAS NEITHER PROVEN SATISFACTORY TO THE COUAST GUARD, NOR REMEDIE IED THE COAL FINES, AND SULRRY INTO THE ASHTABULA RIVER. I AM PERSUADED THAT THE CONSENT JUDGMENT ENTERED IN 1973 WILL NOT BAR (UNDER, FOR EXAMPLE, THE THEORY OF RES JUDICATA) A SUIT NOW FILED UNDER THE CLEAN WATER ACT. BECAUSE OF THE CONTINUING PROBLEMS AT ASHTABULA, THE EPA ISSUED A NOTICE OF VIOLATION TO CONRAIL IN JUNE 1980 FOR VIOALTION OF OHIO AIR POLLUTION CONTROL REGULATIONS. DURING THE AGENCY'S CONTINUING INVESTIGATION OF THE OCNRAIL FACILI TY, AND DOUBTLESS BECAUSE OF IT, CONRAIL APPLIED TO THE OHIO EPA FOR A NPDESPERMIT IN 9/80. ON 10/23/80. THE EPA REQUES TED THAT DOJ INITIATE A CIVIL ACTION AGAINST CONRAIL FOR VIOALTIONS OF THE CAA. THE DOJ REFERRED THE PROPOSED CAA CASE TO U.S. ATTY'S OFFICE THEREAFTER AGREED TO ADD LOWER LAKE AS AN ADDITIONAL DEFENDANT IN THE PROPOSED CAA SUIT. IN 5/81, OHIO EPA ISSUED AN ADMINISTRATIVE ORDER REQUIR- ING CONRAIL TO SUBMIT PLANS FOR THE CONSTRUCTION OF A FACILI TY TO TREAT ITS COAL PILE RUNOFF. THE DEADLINE FOR SUBMIS- SION OF THE PLANS WAS 10/01/81. THE ORDER FURTHER REQUIRES THAT CONSTRUCTION OF THE TREATMENT FACILITY BEGIN BY 5/1/82 AND BE COMPLETED BY 1/1/83. **** CONSENT DECREE VIOLATION: DATE VIOLATION DETERMINED: 09/29/87 DATE DOCUMENTS REC'D ORC : 12/01/87 DEFENDANTS IN VIOLATION OF 01/31/86 JUDICIAL ORDER REQUIRING WATERING OF COAL STORAGE PILLS. ACTION INVOKES STIPULATED PENALTY PROVISION FOR 210 DAYS OF VIOLATION AT $5000/DAY.

Defendants (2)

• CONSOLIDATED RAIL CORPNamed in complaintNamed in settlement
• LOWERLAKE DOCK CO.Named in complaintNamed in settlement

Facilities (1)

• CONRAIL ASHTABULA DIESEL SHOP

  WEST 38TH & BENEFIT AVE, ASHTABULA, OH, 44004

  Registry ID: 110008117304

Statutes cited

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

Enforcement conclusions (1)

• CONRAIL CORP. & LOWER LAKE CO.entered 1992-10-14

  Primary law: CAA

  Federal penalty: $75,000

Timeline (8 milestones)

• 1980-09-30Referred To Headquarters
• 1980-10-23Referred To Dept Of Justice
• 1982-04-02Referred TO U.S. Attorney
• 1982-10-13Complaint Filed With Court
• 1992-10-14Final Order Lodged
• 1992-10-14Final Order Entered
• 1992-10-14Concluded
• 1992-10-14Enforcement Action Closed