EPA v. QUALITY ASPHALT PAVING INC AND KIKIKTAGRUK INUPIAT CORPORATION

Case summary

This case involves mechanized land clearing & excavation of gravel resulting in the discharge of fill material consisting of soil, gravel, & overburden into waters of the U.S. including wetlands (wet tundra) without Dept of the Army (DA) permit authorization. QAP was the contractor who conducted the work and KIC was the land owner & gravel supplier. The unauthorized work occurred on Pipe Spit, approx. 8 miles NE of Kotzebue, AK. The wetlands are adjacent to Hotham Inlet, a navigable water of the U.S. KIC initially applied for a DA permit to impact 2.5 acres of wetlands for gravel extraction on Dec. 1, 2005. On Mar. 29, 2006 a provisional DA permit was sent to KIC with a letter explaining that final DA permit was pending the Alaska Coastal Management Program (ACMP) consistency determination. On June 27, 2006 KIC sent a letter to the U.S. Army Corps of Engineers (USACE) requesting a modification to their permit to authorize impacts to 12 acres of wetlands for additional gravel. The ACMP final consistency determination was issued on July 13, 2006 and the USACE faxed a copy of the signed final permit to KIC on July 21, 2006. On July 24, 2006 the USACE received a complaint from the Northwest Arctic Borough (NWAB) that work was performed prior to the permit issuance & the work was outside the permit area. The USACE sent a hard copy of the signed DA permit to KIC on July 26, 2006. On the same day, July 26, 2006, the NWAB e-mailed photos of work at pipe spit. The USACE sent a letter of non-compliance to KIC asking for additional information. KIC responded to the USACE letter of non-compliance on Aug. 8, 2006 indicating they began work on July 12, 2006 and that USACE is misinformed. KIC further stated there was no filling of wetlands other than the area where pit stripping is temporarily being placed and submitted updated drawings. The updated drawings show stockpiles of overburden on the west side of the gravel pit which were not part of the original authorized permit. On Aug. 22, 2006 Mr. Robert Jobson of the USACE made a site visit to the gravel extraction site on Pipe Spit and found that land clearing activities and discharges of fill material into jurisdictional wetlands had occurred beyond the 2.5 acres authorized by the USACE permit. Mr. Jobson found that fill was discharged into jurisdictional wetlands during land clearing for the gravel extraction, road construction, & that overburden and gravel was stock piled in wetlands. Mr. Jobson found the wetlands on Pipe Spit characterized by standing water with palustrine emergent scrub shrub broadleaf deciduous plant community on permanently saturated peat soils. Mr. Jobson estimated 7 acres of jurisdictional wetlands were impacted by the unauthorized work. On Sep. 28, 2006 the USACE sent KIC a Cease & Desist (C&D) order for the unauthorized work and directed KIC to develop interim corrective measures to restore & reclaim the damage to the wetlands. The wetlands which were impacted by the discharge of dredged and/or fill material have been identified as “waters of the United States” within the meaning of Section 502(7) of the Act, 33 U.S.C. 1362(7) by COE staff while on-site to investigate the violation. The unauthorized work by Respondents caused the loss palustrine emergent scrub shrub wetlands that provided wildlife habitat, water quality benefits for Hotham Inlet, and shoreline stabilization for Pipe Spit. Runoff from disturbed soils caused sediments to flow into adjacent undisturbed wetlands. The USACE Cease & Desist Order required corrective measures to restore and reclaim the damage to the wetlands. As an interim corrective measure the Respondents seeded the overburden piles and exposed soils in April 2007 to stabilize soils and prevent erosion during break up. CONTINUED ON CASE DATA FORM

Defendants (2)

• Kikiktagruk Inupiat Corporation (SB)Named in complaintNamed in settlement
• Quality Asphalt Paving Inc (SB)Named in complaintNamed in settlement

Facilities (2)

• KIKIKTAGRUK INUPIAT CORPORATION (KIC)

  LOT 1 ON PIPE SPIT, APPROX 8 MILES NE OF KOTZEBUE, KOTZEBUE, AK, 99752

  Registry ID: 110006532546

• QUALITY ASPHALT PAVING INC (QAP)

  LOT 1 ON PIPE SPIT, APPROX 8 MILES NE OF KOTZEBUE, KOTZEBUE, AK, 99752

  Registry ID: 110037948175

Statutes cited

• CWA 404 — Permits for Dredge and Fill Material

Enforcement conclusions (1)

• QUALITY ASPHALT PAVING INC AND KIKIKTAGRUK INUPIAT CORPORATIONentered 2008-12-30

  Primary law: CWA

  Federal penalty: $30,600

Timeline (4 milestones)

• 2008-10-28Enforcement Action Data Entered
• 2008-12-30Complaint Filed/Proposed Order
• 2008-12-30Final Order Issued
• 2009-12-24Enforcement Action Closed