EPA

By Lauren Rucinski

On May 4, 2017, Momentive Performance Materials Silicones, LLC (“MPM”) agreed to a settlement with the United States, on behalf of the Environmental Protection Agency (“EPA”), and the State of New York, that requires MPM to pay $1.5 million in fines. The action was brought against MPM pursuant to Sections 113(a) and (b) of the Clean Air Act (“CAA”) and Sections 3008(a) and (g) of Resource Conservation and Recovery Act (“RCRA”) and sought civil penalties for violations of federal law and federally-approved provisions of New York state law. The claims arise from MPM’s ownership and operation of a rotary kiln incinerator at its Waterford, New York facility.

MPM manufactures silicone products from basic raw materials to a wide variety of finished products. According to the settlement agreement, MGM bypassed an automatic shut off system in order to allow the incinerator to operate outside of its permitted limits thousands of times within a two year period. As a result, the incinerator released hazardous substances to the environment in violation of its operating permits and federal and New York state law. MPM also failed to continuously monitor certain operating parameters during those times of incinerator bypass, in derogation of its Title V and RCRA permits. MPM also allowed the incinerator to discharge carbon monoxide (“CO”) in excess of the permit limits at least 13 times during a 7 month period in 2007, constituting a violation of its Title V and RCRA permits, Hazardous Waste Combustor National Emissions Standards for Hazardous Air Pollutants (“NESHAP”) rules, and New York state law, which incorporates the NESHAP standards in its permitting program. MPM also falsely certified that it was in compliance with NEHSAP and Title V permit requirements in its 2006 Title V Annual Compliance Certification.

The EPA is authorized to initiate a civil enforcement action for injunctive relief and civil penalties of up to $32,500 per day for each violation. Similarly, New York state law authorizes its Department of Environmental Protection to initiate civil administrative and judicial enforcement actions for civil penalties for up to $15,000 per violation and $15,000 per day for each day the violation continues and, for a second and any subsequent violation, up to $22,500 per violation and $22,500 per day for each day the violation continues. Based on the various violations of CAA, RCRA, and New York State laws and regulations, MPM agreed to pay $1.5 million in fines, with half going to the state of New York and half to the federal government. The large fine is likely due in part to MPM’s intentional bypass of its automatic shut off system and its falsifying of its annual compliance report.