EPA v. RICHARD WAITE AND GARY SANDS

Case summary

UNDER THE PRESENT CAUSE OF ACTION, WAITE AND SANDS PLACED DREDGED MATERIAL (I.E. A POLLUTANT) INTO A WATER OF THE U.D. WITH A FEDERAL PERMIT IN VIOLATION OF SECTIONS 301 AND 404 OF THE CLEAN WATER ACT. THE 6.8 ACRE WETLAND AREA HAS BEEN STRIPPED OF ITS TOPSOIL AND SOME SUBSOIL HAS BEEN EXCAVATED AND REMOVED FROM THE WETLAND TO CREATE TWO BERMS ALONGSIDE NEARBY ROADWAYS TO BEGIN CONSTRUCTION OF THREE WATER IMPOUNDMENT DIKES. THE WETLAND AREA IS RINGED WITH LARGE PILES OF THE STOCKPILED TOPPSOIL WHICH ARE ACTIVELY ERODING. DOWNSTREM WATERS ARE THREATENED BY SLUGS OF SEDIMENTATION AFTER STORM EVENTS AND SNOW MELT. ANY WILDLIFE NESTING, RESTING OR FORAGING HABITAT HAS BEEN DESTROYED WITHIN THE WETLAND AREA. THE STRIPPED AREAS NOW SUPPORT RAGWEED WHICH CONTRIBUTESS TO THE POLLEN LOAD IN THE AIR AND WHICH CAN NEGATIVELY EFFECT HUMANS SUSPECTABLE TO ALLERGIES. THE ABILITY OF THE SITE TO ABSORB PRECIPITATION HAS BEEN GREATLY DIMINISHED WITH THE DESTRUCTION OF THE VEGETATION AND THE REMOVAL OF THE MORE PERMEABLE SOIL LAYERS THAT WOULD OTHEWISE ACT AS SPONGES. CONSEQUENTLY, DOWNSTREAM AREAS SUBJECT TO FLOODING ARE NOW EVEN MORE PRONE TO INUDATION. RELATED TO THIS PHENOMENON, DOWNSTREAM WATER QUALITY, PARTICULARLY IN THE LARGE SWAMP WHICH RECEIVES THE IMMEDIATE DRAINAGE FROM THIS AREA, IS MORE VULNERABLE TO DEGRADATION FROM SEDIMENTATION AND THE LOSS OF THE WETLAND'S ABILITY TO BUFFER AGAINST EUTROPHICATION AND OTHER CONTAMINANTS THAT MAY BE IN THE UPSTREAM WATERSHED, E.G. PESTICIDES AND ROAD WASH. COMPLAINANT IN THIS CASE INTENDS TO ISSUE AN DMINISTRATIVE COMPLAINT TO ASSESS A CLASS 11 ADMINISTRATIVE PENALTY UNDER SECTION 309 (G) OF THE CLEAN WATER ACT ( CWA ), 33 UCS 1319(G) AGAINST RESPONDENTS WAITE AND SANDS FOR VIOLATIONS OF 301 OF THE CWA. THE ADMINISTRATIVE COMPLAINT ALLEGES THAT RESPONDENTS DISCHARGED DREDGED MATERIAL INCIDENTAL TO THE CONSTRUCTION OF SURFACE WATER IMPOUNDMENTS. BASED UPON THE FINDINGS OF VIOLATIONS SET FORTH IN THE ADMINISTRATIVE COMPLAINT, AND PURSUANT TO THE AUTHORITY OF THE AUTHORITY OF SECTION 309(G) OF THE CWA, COMPLAINTANT PROPOSES TO ISSUE A FINAL ORDER ASSESSING ADMINISTRATIVE PENALTIES AGAINST WAITE AND SANDS IN THE AMOUNT OF $100,000 (OR $45,000). PURSUANT TO SECTION 309(G)(3) OF THE CWA, 33 U.S.C. 1319(G)(3), IN PROPOSING THIS PENALTY AMOUNT, COMPLAINANT CONSIDERED THE NATURE, CIRCUMSTANCES, EXTENT AND GRAVITY OF THE VIOLATION OR VIOLATIONS, THE VIOLATOR'S ABILITY TO PAY, ANY PRIOR HISTORY OF SUCH VIOLATIONS, THE DEGREE OF CULPABILITY, ECONOMIC BENEFIT OR SAVINGS (IF ANY) RESULTING FROM THE VIOLATION, AND SUCH OTHER MATTERS AS JUSTICE MAY REQUIRE. EACH OF THESE FACTORS IS DISCUSSED BELOW. WE BELIEVE THERE IS LITIGATION RISK IN THIS CASE BECAUSE OF THE UNCERTAINITIES POSED BY LEGAL CHALLENGES DO THE UNDERLYING JURISDICTIONAL BASIS OF THIS ACTION. IN OTHER WORDS, COURTS MAY NOT CONDIDER THE EXCAVATION AND MECHANICAL LAND CLEARING THAT TOOK PLACE AT THIS SITE TO BE A DISCHARGE OF DREDGED MATERIAL BECAUSE THE BULK OF THE DREDGED MATERIAL HAS BEEN PUSHED UP ONTO ADJACENT UPLANDS. THERE REMAINS DREDGED MATERIAL WITHIN WETLANDS ON THE SITE, BUT THE SIZE IS SIGNIFICANTLY LESS THAN THE APPROXIMATELY 6.8 ACRES OF WETLAND THAT HAS BEEN DIRECTLY IMPACTED BY THE EXCAVATION AND MECHANICAL LAND CLEARING. CONSEQUENTLY, WE HAVE REDUCED THE MOUNT OF THE PROPOSED ASSESSED PENALTY. ON THE OTHER HAND, WAITE DID NOT - COMPLETELY ANSWER AN EARLIER U.S. EPA INFORMATION REQUEST UNDER SECTION 308 OF THE CLEAN WATER ACT. THE FAILURE TO SUPPLY COMPLETE INFORMATION SHOULD BE DISCOURAGED THROUGH AN INCREASE IN THE AMOUNT OF THE PROPOSED PENALTY.

Defendants (3)

• RM WAITE, INCNamed in settlement
• GARY SANDSNamed in settlement
• RICHARD WAITENamed in settlement

Facilities (1)

• WAITE'S WATER WORLD

  NW1/4 S16 125N R15E, MATTESON TOWNSHIP, WI, 54929

  Registry ID: 110010771940

Statutes cited

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

Enforcement conclusions (1)

• RICHARD WAITE AND GARY SANDSentered 1998-04-21

  Primary law: CWA

Timeline (5 milestones)

• 1998-03-27Enforcement Action Data Entered
• 1998-04-21Complaint Filed/Proposed Order
• 1998-04-21Final Order Issued
• 2000-05-11Compliance Achieved
• 2000-06-30Enforcement Action Closed