Former Berkshire Power employees charged in monitor tampering

A Department of Justice investigation found violations of the federal Clean Air Act.

BOSTON – The former operations manager and a control technician at Berkshire Power Plant have been charged with tampering with environmental monitors in violation of the Clean Air Act.

Fred Baker, 51, of Southampton, Mass., the former Operations and Maintenance Manager at Berkshire Power Plant in Agawam, Mass. and Scott Paterson, 44, of Manchester, Conn., the former Instrument and Control Technician were charged today in Informations with conspiracy to violate the Clean Air Act, and other criminal violations of that statute. Both Baker and Paterson have agreed to plead guilty to the charges.

“Air pollutants emitted in the western part of our state can have a profound impact on our urban environments in and around Boston, as well as into coastal Maine,” said United States Attorney Carmen M. Ortiz. “Protecting New England’s airshed, through the criminal enforcement of the Clean Air Act, plays an important role in preserving human health and the environment. Berkshire Power Plant’s managers and a compliance worker deliberately sought to deceive regulators about the release of air pollutants, and fittingly now face criminal prosecution for that conduct.”

According to the Informations, from 2008 until March 2011, Baker instructed Paterson and other operators at Berkshire Power Plant to tamper with the plant’s Continuous Emissions Monitoring System (CEMS). The CEMS is an environmental monitoring system, required by federal law, which continuously samples, measures and records the concentration of regulated pollutants. Baker, Paterson and others at Berkshire Power Plant, tampered with the CEMS to save money, delay repairs and to avoid reporting to federal and state regulators that the plant, at times, was releasing pollutants – in this case, nitrogen oxides — in excess of regulatory limits.

Initially, the defendants lowered the CEMS monitors by approximately .5 parts per million (ppm). In the summers of 2009 and 2010, when the plant underwent required independent audits of the pollution monitoring equipment, Baker instructed Paterson to take out the fraudulent adjustments in the monitors prior to the audit and re-introduce them after the auditors had left. Paterson made the fraudulent adjustments prior to, and after, each independent audit. Berkshire Power Plant was required to and did report the results of these audits to the Massachusetts Department of Environmental Protection (MassDEP) and the United States Environmental Protection Agency.

In 2010, the .5 ppm adjustment was not sufficient to allow the plant to run at full power and comply with the facility’s Clean Air Act permit. Rather than doing the necessary repairs to the plant and its environmental pollution control equipment, or running the plant at lower power levels, Baker instructed staff, including Paterson, to lower the CEMS readings even more to avoid reporting pollution emissions.

“Berkshire Power Plant management and staff had institutionalized a deliberate scheme to evade compliance with the Clean Air Act by altering their emission monitoring equipment as it suited them and not the law. This not only creates an unfair advantage over competitive energy and utility sources, but underscores how our environment suffers at the hand of criminal greed,” said Tyler Amon, Special Agent in Charge of the Environmental Protection Agency’s Criminal Investigation Division in Boston.

“These employees intentionally cut corners and violated environmental laws intended to monitor pollution emissions,” said Massachusetts Attorney General Maura Healey. “These charges are the result of a collaborative effort with our state and federal partners, and we will continue to investigate cases in which people seek to take shortcuts at the expense of the environment.”

“This complex technical investigation and resulting plea agreement, involving fraudulent practices related to air pollution monitoring, is the result of state and federal officials combining resources and working together to find the truth,” said Massachusetts Department of Environmental Protection Commissioner Martin Suuberg. “Through partnership with our federal law enforcement and environmental protection counterparts, MassDEP increases its ability to fulfill our mission to protect our air and the public health.”

The statutory maximum penalties for the conspiracy charge are five years in prison and three years of supervised release. The statutory maximum penalties for each of the Clean Air Act charges are two years in prison and one year of supervised release. Both statutes provide for a maximum fine of $250,000 or twice the gross loss or gain per count, whichever is greater. Actual sentences for federal crimes are typically less than the maximum penalties. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and other statutory factors.

U.S. Attorney Ortiz, Attorney General Healey, and EPA SAC Amon, made the announcement today. The case was investigated with the assistance of the Massachusetts Attorney General’s Environmental Crimes Strike Force, the Massachusetts Environmental Police and the Massachusetts Department of Environmental Protection. The case is being prosecuted by Sara Miron Bloom of Ortiz’s Economic Crimes Unit and Daniel Licata, Assistant Attorney General with the Massachusetts Attorney General’s Office working as a Special Assistant U.S. Attorney.

The details contained in the Informations are allegations. The defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law.

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