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United States v. Westvaco Corp.

United States District Court, D. Maryland

August 26, 2016

UNITED STATES OF AMERICA Plaintiff
v.
WESTVACO CORPORATION Defendant

          MEMORANDUM AND ORDER APPROVING CONSENT DECREE

          MARVIN J. GARBIS UNITED STATES DISTRICT JUDGE

         The Court has before it the United States' Motion to Enter Proposed Consent Decree [ECF No. 438] and the materials relating thereto. The Court has held a hearing and has had the benefit of the arguments of counsel.

         I. BACKGROUND

         A. Case Summary[1]

         In 1981, Westvaco Corporation (“Westvaco”), [2] operator of a kraft pulp and paper mill (“the Luke Mill”) located in Maryland and West Virginia, decided to proceed with a major expansion project without obtaining a permit that this Court found to be required. Consequently, for some thirty years, the Luke Mill emitted more pollutants than this Court found that it should have.[3]

         The Environmental Protection Agency (“EPA”) did not commence the instant law suit until the year 2000. The Government claimed civil penalties and sought to have the Court impose pollution control obligations upon Westvaco due to its violation of the Clean Air Act (“CAA”). However, the Court held that the delay caused the Government to lose its ability to collect penalties from Westvaco.

         There was a 2005 sale of the Luke Mill by Westvaco to Luke Paper Company[4] (“LPC”) that continued to operate the mill. This required the Court to consider the effect upon LPC of any mandatory injunction requiring Westvaco to acquire control equipment and install it on the premises. Consequently, LPC was added as an Intervenor to participate in proceedings regarding relief that could affect its operations.

         Ultimately, the Court decided that it would not be able to issue an injunction that would require Westvaco to install control equipment at the Luke Mill and would, instead, impose an obligation to mitigate the harm caused by the excess emissions. An evidentiary hearing was scheduled but, prior thereto, the parties engaged in settlement proceedings with a Magistrate Judge. The proceedings resulted in the proposed Consent Decree [ECF No. 435-1] resolving all issues between Westvaco and the Government. There were no pending claims by or against LPC, and it was not a party to the agreement.

         In accordance with 28 C.F.R. § 50.7, the Government sought public comment on the Consent Decree by publishing a notice in the Federal Register. See 81 Fed. Reg. 14, 130 (Mar. 16, 2016). A comment by the Pennsylvania Department of Environmental Protection [ECF No. 438-1] and an objection by LPC [ECF No. 436] were received.

         By the instant motion, the Government (with the agreement of Westvaco) requests the Court to enter the Consent Decree as an Order of the Court.

         B. The Consent Decree

         As summarized by the Government in its supplemental memorandum:

The proposed Consent Decree would require Westvaco to pay $1.6 million, split equally between the National Park Service and the U.S. Forest Service. This money would be used to fund projects in Shenandoah National Park and the Monongahela National Forest to address harm from acidic deposition.
The Decree would require that the funds be used “in accordance with 54 U.S.C. § 100724 for the restoration of land, watersheds, vegetation, and forests in Shenandoah National Park” and “16 U.S.C. § 579c for the improvement, protection, and rehabilitation of lands in the Monongahela National Forest.” While the Decree does not require the implementation of any specific projects, it is anticipated that the money paid to the National Park Service would be used on the following types of projects: []

Project Type

Location

Approximate Cost

Watershed liming to address acidification in soils, forests, and aquatic systems

North Fork of Dry Run and Meadow Run in Shenandoah National Park

$300-500 per acre

Repairing culverts to increase habitat resiliency so organisms in impaired ecosystems are better able to withstand stress from acidification

Throughout Shenandoah National Park

$3, 000- $15, 000 per culvert

Decommissioning of roads near acid impacted watersheds and revegetation and reforestation of those areas to improve their ability to buffer acid impacts

Throughout Shenandoah National Park

$11, 000 per 100 feet of road removal and revegetation

Application of limestone gravel to roads as a method of delivering base cations to impaired watersheds

Throughout Shenandoah National Park

$1, 300 per mile

It is anticipated that the money paid to the U.S. Forest Service would be used on some combination of two projects to improve soils, watersheds, and aquatic resources in the Monongahela National Forest. One project would involve adding lime to soils in the Lower William River watershed, located in the southeastern portion of the Monongahela National Forest. This would involve the application of limestone sands in a 797-acre area in the Lower William River Watershed. The estimated cost of this project is $407, 000. The other project would involve restoring habitat in the Upper Greenbriar, Little River, and Big Run watersheds in the Monongahela National Forest. This would involve decommissioning roads, rehabilitating stream crossings, improving hillsides to reduce erosion and sediment production, reducing habitat fragmentation by removing stream barriers, rehabilitating floodplain functions, and/or replanting riparian areas. While the estimated cost for this work exceeds the amount of the settlement proceeds, the project is scalable.

Mem. in Support of Mot. at 7-8, ECF No. 438-1 (quoting Decree at ¶¶ 7 and 9).

         Westvaco has signed and approved the Consent Decree, consenting to its entry without further notice. The Government conditioned its approval on the public notice and comment procedure as required under 28 C.F.R. § 50.7. The 30-day public comment period has expired with one comment being received in addition to the objection by LPC.

         1. The Comment

         The Pennsylvania Department of Environmental Protection filed a comment, asking the Department of Justice to “consider allotting a portion of the mitigation moneys to projects within Pennsylvania that will reduce harmful air emissions on an ongoing basis into the future.” Id. Ex. A.

         2. LPC&#3 ...


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