The United States has provided notice at 84 FR 30243 (available at https://www.justice.gov/enrd/consent-decree/file/1177391/download) that the Seventh Amendment to the Consent Decree between Sinclair Wyoming Refinery Company (“SWRC”), the United States and the State of Wyoming lodged in the U.S. District Court for the District of Wyoming is available for public comment through July 26, 2019. The Seventh Amendment to the Consent Decree (available at https://www.justice.gov/enrd/consent-decree/file/1175756/download#Seventh%20Amendment%20to%20Consent%20Decree%20with%20Appendixes) seeks to address reported exceedances of flare and sulfur recovery plant emission limits and reported downtime of certain Continuous Emissions Monitoring Systems (“CEMS”) at the Sinclair Wyoming Refinery, in alleged violation of the Consent Decree, through revisions to certain Paragraphs in the Consent Decree dealing with Hydrocarbon Flaring Devices and the Sulfur Recovery Plant (“SRP”), including Tail Gas Units (“TGUs”), at the Sinclair Wyoming Refinery.
Specifically, the Seventh Amendment to the Consent Decree assesses $1.6 million in civil penalties for alleged violations of emissions standards under NSPS Subparts J and Ja at the Flaring Devices and at the TGUs at the Sinclair Wyoming Refinery through December 31, 2018; and (b) violations of CEMS regulations and requirements at the Sinclair Wyoming Refinery through December 31, 2018. Alleged violations of the emissions standards at the Flaring Devices and at the TGUs occurring after December 31, 2018, and alleged violations of the CEMS regulations and requirements occurring after December 31, 2018.
In addition, under the Seventh Amendment to the Consent Decree, violations of the emissions standards at the Flaring Devices and at the TGUs occurring after December 31, 2018, and violations of the CEMS regulations and requirements occurring after December 31, 2018, and prior to the Date of Entry of this Seventh Amendment are subject to stiff stipulated penalties set forth in Section XI of the Consent Decree.
Joe’s Takeaway: Federal enforcement officials do not forget; they have memories like elephants. Remember, environmental violations are subject to a 5-year statute of limitations set forth at 28 U.S.C. § 2462 with an exception for continuing violations. Put another way, even if you feel confident that the enforcement “heat” from EPA has waned, the environmental compliance reputation that you develop today with EPA and state regulators may come to roost in the future. Stay in compliance and keep your nose clean!