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January 2009 Significant Cases

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Week of January 5, 2009

Raybestos Products Company completes removal activities and submits payment of oversight costs for the Shelly Ditch Reach 4 Site in Crawfordsville, Indiana

The Shelly Ditch is an intermittent stream that accepts surface runoff that discharges into Sugar Creek. Sugar Creek is designated as a "full-body contact" water body and as an "expected use" stream by the Indiana Department of Natural Resources. Three culverts or outfalls located on the west perimeter of the Raybestos' facility at 1204 Darlington Avenue in Crawfordsville, Indiana empty into Shelly Ditch. The facility, established in 1951, manufactures friction plates for automatic transmissions. During its operation, there was a release of PCBs from the Raybestos facility into Shelly Ditch.On December 6, 2000, U.S. EPA issued a UAO to Raybestos to remove PCBs over 10 ppm from Reaches 1 to 3 of the Ditch. Raybestos complied with the UAO and completed the work in July 2003, spending approximately $18,700,000. In May 2003, U.S. EPA and Raybestos entered into negotiations to address Raybestos' potential liability for the Sugar Creek Remedial Site, which included Reach 4 of Shelly Ditch.On May 24, 2007, the United States District Court for the Southern District of Indiana, Indianapolis Division entered a Consent Decree for the Shelly Ditch, Sugar Creek, and Calumet Container Site. Pursuant to the terms of the Consent Decree, the Settling Defendant, Raybestos Products Company paid $119,519.18 of EPA's past costs incurred at the Shelly Ditch Site. Under the Consent Decree, the Settling Defendant received a release for liability for costs incurred at Shelly Ditch, except those covered by the Administrative Order on Consent, and a release from liability for the Sugar Creek and Calumet Container Sites. Pursuant to a May 15, 2007 Administrative Order on Consent between EPA and Raybestos, the Settling Defendant completed a removal action in Reach 4 of Shelly Ditch at a cost of $900,000. EPA acknowledged that the Reach 4 removal was completed in an October 1, 2008 letter. In January 2009, the Settling Defendant submitted payment of $43,447.56 of EPA's costs in overseeing the work.

Contact: Robert H. Smith, ORC, 312-886-0765.

Region 5 signs a Consent Agreement and Final Order (CAFO) with Wolf Paving Co., Inc.

Region 5 initiated this enforcement action with a complaint in July 2008. On January 5, 2009, Region 5 signed a CAFO with Wolf Paving Co., Inc. to settle violations of Sections 111 of the Clean Air Act (CAA) and the Particulate Matter limit of the New Source Performance Standards for Hot Mix Asphalt Facilities. Wolf is currently in compliance with the CAA. This settlement will require Wolf to pay a penalty of $20,080 and perform two Supplemental Environmental Projects. This penalty includes a reduction for cooperation and a reduction for implementation of supplemental environmental projects.

Contact: Padmavati Bending, Office of Regional Counsel, 312-353-8917

Dayton Company Sentenced for Making Illegal Discharges Into The Sewer System; UnitedStatesv.Techmetals, Inc.

On January 6, 2009, Techmetals, Inc. (Techmetals) was sentenced for making illegal discharges into the City of Dayton sewer system. Techmetals was sentenced to three years of probation. During the term of probation Techmetals will install a monitoring station at its facility so its discharge to the sewer system can be easily sampled. Techmetals was also was fined $20,000 and ordered to pay $15,000 to a Dayton area non-profit organization, for a total of $35,000.

Techmetals is a metal finishing company located in Dayton, Ohio. To reduce the amount of pollutants discharged into the sewer system Techmetals processes its wastewater using a pretreatment system. Bypassing the pretreatment system is prohibited by Dayton's ordinance which governs usage of the sewer system.

Previously, Techmetals pled guilty to a one-count Information. The Information charged that beginning on or about September 13, 2003, and continuing through on or about January 31, 2004, the pretreatment system would occasionally not operate properly. Instead of reporting these problems to Techmetals management, the pretreatment operators would bypass the pretreatment system in order to continue production. These discharges were in violation of Dayton's approved pretreatment program.

Contact: Brad Beeson, Office of Regional Counsel - Criminal Investigation Division, (440) 250-1761

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Week of January 12, 2009

Region 5 files a Consent Agreement and Final Order (CAFO) to settle administrative enforcement case against Electro-Max, Inc., Hampshire, Illinois.

On January 14, 2009, Region 5 filed a CAFO resolving an administrative penalty action against Electro-Max, Inc., for violations of Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. § 11023. The CAFO requires Electro-Max to pay a penalty of $6,500. On June 30, 2008, and July 17, 2008, Region 5 filed an Administrative Complaint and an Amended Administrative Complaint, respectively, against Electro-Max. The Amended Complaint alleged that Electro-Max failed to timely submit Toxic Chemical Release Inventory Reporting Forms (Form Rs) for nitric acid and nitrate compounds for calendar year 2002. Region 5 proposed a total penalty of $11,000 for these two violations. The parties engaged in settlement negotiations and Alternative Dispute Resolution. Recognizing some litigation risk, as well as Electro-Max's cooperation and compliance efforts, Region 5 determined that it was appropriate and consistent with the penalty policy to mitigate its proposed penalty to a settlement penalty of $6,500.

Contact: Mony Chabria, Office of Regional Counsel, 312-886-6842

Region 5 Files a Consent Agreement and Final Order (CAFO) Commencing and Concluding A Proceeding with Valtronic Technologies (USA), Inc. in Solon, Ohio

Region 5 initiated prefiling discussions on this matter on September 24, 2008. On January 5, 2009, Region 5 filed a CAFO Commencing and Concluding a Proceeding with USA to settle violations of Section 313 of the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11023. Specifically, USA failed to submit Toxic Chemical Release Inventory Reporting Forms (Form Rs) to the Administrator and to Ohio for lead for calendar years 2005 through 2007. During settlement discussions, USA agreed to pay a civil penalty of $7,672.

Primary Contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; additional contact: Robert Allen, Land and Chemical Division, 312-353-5871

Region 5 Files a Consent Agreement and Final Order (CAFO) Commencing and Concluding A Proceeding with Lapeer Grain Company

Region 5 initiated prefiling discussions on this matter in October, 2008. The proposed penalty was $14,500. On December 18, 2008, Region 5 filed a CAFO Commencing and Concluding a Proceeding with Lapeer Grain Company to settle violations of Sections 7(c)(1) and 12(a)(2)(L) of Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136e(c)(1) and 136j(a)(2)(L). Specifically, Lapeer Grain Company failed to file Annual Production Reports for calendar years 2004, 2006 and 2007. During settlement discussions, Lapeer Grain Company agreed to pay a civil penalty of $13,050.

Primary Contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; additional contact: Joseph Lukasyck, Land and Chemical Division, 312-886-6233

Region 5 enters into a Consent Agreement and Final Order (CAFO) requiring Five Star Mining, Inc., Petersburg, Indiana, (Five Star), to pay to the Treasurer, United States of America, a civil penalty in the amount of $75,000.00 and to comply with the Clean Water Act (CWA), 33 U.S.C. §§ 1251 to 1387.

On January 14, 2009, we filed a CAFO which alleged that on or about June 1, 2005, Five Star added approximately 4,207 cubic yards of dredged spoil from earthmovers and bulldozers into approximately 7.1 acres of forested wetlands abutting Conger Creek, at Prosperity Mines, 6594 West State Road 56, Petersburg, Indiana, in violation of Section 301 of the CWA, 33 U.S.C. § 1311. The CAFO requires Five Star to pay to the Treasurer, United States of America, a civil penalty in the amount of $75,000.00 and to comply with the CWA.

Primary Contact: Jeffery M. Trevino, Office of Regional Counsel, 312-886-6729; additional contact: Greg Carlson, Water Division, 312-353-3193

Region 5 files a Consent Agreement and Final Order (CAFO) to commence and conclude case against Ottenweller Company, Inc., Fort Wayne, Indiana.

On December 30, 2008, Region 5 filed a CAFO simultaneously commencing and resolving an administrative penalty action against Ottenweller Company, Inc. for alleged violations of the National Emission Standards for Surface Coating of Miscellaneous Metal Parts and Products (MACT Subpart MMMM), found at 40 C.F.R. Part 63, §§63.3880 - 63.3981. Specifically, the facility violated MACT Subpart MMMM by exceeding its 12 month rolling average of organic Hazardous Air Pollutants (HAPs) per gallon of coating solids for its initial compliance period. These violations were reported to the United States Environmental Protection Agency by the facility through its Notification of Compliance Status.

Ottenweller has since come into compliance. In settlement, in addition to paying a cash penalty of $13,500, Ottenweller will perform Supplemental Environmental Projects (SEPs) including installing a new paint mixing system that will eliminate fugitive HAPs released during mixing and reduce paint waste. In addition, Ottenweller will switch to a low-HAP topcoat which is more costly than its current formulation. Together, the two SEPs will reduce HAPs by an additional 1,582 pounds annually.

Contact: Kathleen Schnieders, Office of Regional Counsel, 312-353-8912

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Week of January 19, 2009

Vice-President and Company Sentenced for Making False Statements; UnitedStatesv.Scott A. Forster and General Environmental Management

On January 21, 2009, Scott A. Forster and General Environmental Management (GEM) were sentenced for making false statements. Mr. Forster was sentenced to one year of probation during which he must perform 40 hours of community service. In addition, Mr. Forster was ordered to pay a $20,000 fine. GEM was sentenced to one year of probation. GEM was not ordered to pay a fine because the company was unable to pay a fine.

GEM was an industrial wastewater treatment facility and Mr. Forster was the Vice-President of GEM. GEM processed industrial wastewater and discharged the treated wastewater into the Northeast Ohio Regional Sewer District (NEORSD) sewer system which serviced the City of Cleveland and many of the surrounding suburbs.

Previously, Mr. Forster and GEM pled guilty to a three-count information. The first count of the information alleged that in 2004 GEM received industrial wastewater from a facility in Columbus, Ohio. All wastewater processed by GEM by must be pre-approved by NEORSD. GEM was not approved to process the wastewater from Columbus. The NEORSD asked about the wastewater from Columbus and was told by Mr. Forster that the wastewater was not processed by GEM. However, Mr. Forster knew that GEM had processed the unapproved wastewater and discharged it into the NEORSD sewer system. The first count of the information charged Mr.Forster and GEM for making a false statement to NEORSD concerning the processing of the Columbus wastewater.

The second count of the information further alleged that some of the industrial wastewater received by GEM was hazardous waste. While GEM was allowed to process hazardous wastewater, it was illegal for GEM to store hazardous wastewater at its facility. Beginning in 2002, GEM began the practice of storing hazardous waste at its facility. The practice ended in July 31, 2005. The second count of the information charged that GEM employees falsified documents to make it appear that hazardous waste was not being stored at the GEM facility.

The last count of the information alleged that GEM had a permit from the NEORSD which limits the concentration of pollutants which can be discharged into the sewer system. In addition, GEM is required to regularly report the concentration of pollutants discharged into the sewer system to the NEORSD. Between January 2004, and March 2005, on approximately a weekly basis, employees for GEM discharged wastewater into the sewer system that was above GEM's limit for methyl ethyl ketone, a toxic substance. The last count of the information charged that GEM employees sent false information to the NEORSD showing that the wastewater discharged to the sewer system was in compliance with GEM's permit limit, when the wastewater discharged into the sewer system was above the permitted limit for methyl ethyl ketone.

Contact: Brad Beeson, Office of Regional Counsel - Criminal Investigation Division, 440-250-1761

United States Lodges a Consent Decree Resolving Clean Air Act (CAA) Violations and Requiring Pollution Controls by Chemtrade Logistics, Chemtrade Refinery Services, and Marsulex at Six Sulfuric Acid Plants.

On January 12, 2009, the United States lodged a Consent Decree that will require Chemtrade Logistics, Chemtrade Refinery Services, and Marsulex to spend at least $12 million on air pollution controls and pay a civil penalty of $700,000. The required pollution controls are expected to eliminate more than 3,000 tons of harmful emissions annually from six sulfuric acid plants located in Louisiana, Ohio, Oklahoma, Texas and the Wind River Reservation in Wyoming. Between January 2010 and January 2013, at its four production facilities in Beaumont, Texas; Shreveport, Louisiana; Tulsa, Oklahoma; and Riverton, Wyoming, Chemtrade will upgrade existing pollution control equipment called scrubbers to meet new, lower emission limits for sulfur dioxide. At its facility in Oregon, Ohio, Marsulex will improve chemical processing equipment that will reduce sulfur dioxide emissions by no later than July 2011. Finally, Marsulex will install a new scrubber at Chemtrade's sulfuric acid plant in Cairo, Ohio, to meet lower sulfur dioxide limits by July 2011. The United States' complaint, filed with the consent decree, alleges that Chemtrade and Marsulex made modifications to their plants, which increased emissions of sulfur dioxide without first obtaining pre-construction permits and installing required pollution control equipment required by the New Source Performance Standard and Prevention of Significant Deterioration provisions of the CAA. The states of Louisiana, Ohio, and Oklahoma, and the Northern Arapaho Tribe, joined the federal government in the settlement. United States Environmental Protection Agency (EPA), Region 5, working with United States Department of Justice, acted as the lead EPA region in the settlement negotiations and coordinated with Regions 6 and 8.

Contacts: Robert H. Smith, Office of Regional Counsel, 312-886-0765 and Nathan Frank, Air and Radiation Division, 312-886-3850

United States District Court Grants United States' Motion to Dismiss Declaratory Judgment Action Against Environmental Protection Agency (EPA) and Ohio Environmental Protection Agency (Ohio EPA).

On January 13, 2009, Judge Edmund A. Sargus, Jr., of the United States District Court for the Southern District of Ohio granted the United States' and Ohio motions to dismiss, for lack of subject matter jurisdiction, a complaint for declaratory judgment filed by U. S. Technology Corporation (US Tech). US Tech argued that its Sealtech masonry blocks, which contain Resource Conservation and Recovery Act (RCRA) characteristic hazardous wastes, are a benign recycled waste product and are no longer hazardous when used in an approved manner. Ohio EPA sent US Tech letters explaining that the regulatory recycling exemption no longer applies when the recycled hazardous waste product is "applied to or placed on the land," such as when the Sealtech block is used in constructing a building foundation. After the Ohio EPA determination was upheld by the Ohio Environmental Review Appeals Commission and a state appeals court, US Tech sought further review in federal court. In dismissing US Tech's complaint, the Court considered and rejected US Tech subject matter jurisdiction arguments, including (1) EPA indirect action, through the promulgation of 40 C.F.R. §266.20, that caused harm; (2) EPA inaction pursuant to the APA or the RCRA citizen suit provision; (3) jurisdiction pursuant to 28 U.S.C. §1331; (4) the Tucker Act, and; (5) the Declaratory Judgment Act. Finding that US Tech failed to establish any EPA action sufficient to establish a case or controversy based on subject matter jurisdiction, the Court did not address several alternative arguments for dismissal. In addition, the Court held that it lacked jurisdiction over the US Tech claims against Ohio EPA because these claims arise under State and not federal law.

Primary Contact: Stuart Hersh, Office of Regional Counsel, 312-886-6235; additional contact: Mike Cunningham, Land and Chemicals Division, 312-886-4464

Region 5 Refers the Filing of a Proof of Claim in the Quebecor Entities Bankrupcy Filing

On January 14, 2009, Region 5 referred to the Department of Justice for filing of a protective proof of claim against Quebecor World (USA) Inc., Quebecor World RAI, Inc., Quebecor World KRI, Inc., and related entities, in the United States Bankruptcy Court for the Southern District of New York, for recovery of approximately $14 million in response costs under Comprehensive Environmental Response, Compensation, and Liability Act incurred and to be incurred at the Lenz Oil Superfund Site, near Lemont, Illinois. United States Environmental Protection Agency, Region 5 takes the position that a proof of claim is not required since the debtor entities have an injunctive obligation to comply with work requirements arising under a court order that is not a claim under 11 U.S.C. § 101(5). Quebecor and its related entities, along with other potentially responsible parties at the Lenz Oil site, are Settling Work Defendants in the United States v. Alpha Construction Co., No. 02 C 3609 Consent Decree entered on August 14, 2002 in the United States District Court for the District of Illinois.

Primary Contact: Stuart Hersh Office of Regional Counsel, 312-886-6235; additional contact: Scott Hansen, Superfund Division, 312-886-1999

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Week of January 26, 2009

Region 5 Office of Regional Counsel (ORC) successfully completes full year of training attorneys as an Accredited Continuing Legal Education provider in the State of Illinois.

On January 28, 2009, the Region 5 ORC submitted to the Illinois Minimum Continuing Legal Education Board (Illinois MCLE) its annual report of Continuing Legal Education (CLE) classes offered during 2008. ORC is required to submit this report to the Illinois MCLE since it is an Accredited CLE Provider. ORC offered 29 separate classes which were attended by 369 attorneys from ORC, State and City environmental offices and the Chicago Bar Association. The classes qualified for 22 hours of professional responsibility credit and 100 hours of general credit in Illinois. The classes included topics in negotiations, mediation, conflict resolution, trial skills practice, legal writing, federal and state ethics laws, anti-discrimination law, bankruptcy, mental illness and addiction, wetlands, regulation of combined sewer overflows under the Clean Water Act, Emergency Planning & Community Right-to-Know Act and Federal Insecticide, Fungicide and Rodenticide Act. The instructors included subject matter experts within Environmental Protection Agency, university professors, skilled negotiators and mediators, and Chief Administrative Law Judge Biro. ORC used webinars and live video broadcasts for ten of the classes.

Office of Regional Counsel Contacts: Rich Clarizio 312-886-0559, Jane Lupton 312- 886-2238, Timothy Thurlow 312-886-6623 and Barbara Wester 312-353-8514

Judge Enters Cost Recovery Consent Decree with Livingston and Company for the United Scrap Lead Site; Troy, Ohio

On January 23, 2009, Judge Rice of the Southern District of Ohio entered a cost recovery Consent Decree in U.S. v. A-L Processors et al., No. 3:91-cv-00309-WHR, for the United Scrap Lead Site in Troy, Ohio. Under this Consent Decree, Livingston and Company, Inc. will pay the United States a total of $1,609,732 in response costs incurred by United States Environmental Protection Agency at the Site. Additionally, the Respondent Group, which performed the remedial design/remedial action at the Site, and which has a contribution cause of action against Livingston, will recover $290,268. This recovery by the Respondent Group is also based upon a cost recovery sharing agreement between the Group and the United States. The Consent Decree resulted from a detailed examination of Livingston's ability to pay.

Livingston will make payments under the Consent Decree to the United States and the Respondent Group over three years. All installments will carry interest at the Superfund interest rate. Livingston will pay a total of $1.9 million, plus interest, in settlement of its liability at the Site. This Consent Decree resolves both the liability of Livingston and Company, and Roger and Larry Livingston (Livingston Brothers), the principals of the corporation, individually. Payments under this settlement agreement will be made by Livingston and Company. The Livingston Brothers have given the United States and the Respondent Group a payment guaranty of all payments owed by the corporation under the Consent Decree. If these payments are not made when due by the corporation, each of the Livingston Brothers becomes jointly and severally liable (together with the corporation), for the payments, along with interest and stipulated penalties.

Office of Regional Counsel Contacts: Sherry Estes 312-886-7164 and/or Deborah Garber 312-886-6610

Consent Agreement and Final Order (CAFO) executed in Clean Water Act (CWA) Administrative Action: Michael Aukerman, d/b/a Aukerman Excavating

On January 21, 2009, the Regional Administrator executed a CAFO resolving an administrative complaint filed against Michael Aukerman, d/b/a Aukerman Excavating (Aukerman), under the CWA. The CAFO provides for payment of a $1,000 civil penalty by Aukerman for violations of Section 405(e) of the CWA, 33 U.S.C. § 1345(e).

On June 18, 2008, Tinka G. Hyde, Acting Director, Region 5 Water Division, on delegated authority of the Administrator, filed an Administrative Complaint, alleging that Aukerman violated Section 405(e) of the CWA, 33 U.S.C. § 1345(e). In four counts, the Complaint alleges that Aukerman failed to meet recordkeeping requirements of 40 CFR 503.17(c); failed to meet pathogen requirements of 40 CFR 503.15(b); failed to meet vector attraction reduction requirements of 40 CFR 503.15(d); and failed to apply septage at the required agronomic rate required by 40 CFR 503.14(d). A penalty amount of $102,000 was proposed in the Complaint. In his Answer, Aukerman claimed an inability to pay the amount of penalty proposed, and submitted financial data to support his claim. On review of the financial data provided by Aukerman, Complainant has determined that Aukerman has an ability to pay no more than $1,000. Consequently, in the CAFO, Complainant agrees to accept in resolution of this matter a $1,000 civil penalty paid by Aukerman. Aukerman agrees to pay that penalty amount.

Contact: Richard Wagner, Office of Regional Counsel, 312-886-7947

The Great Lakes National Program Office (GLNPO) Signs Agreement for the Cleanup of Contaminated Sediments in the Ottawa River in Toledo, Ohio.

On January 26, 2009, the Acting Program Manager for GLNPO signed a project agreement with the Ottawa River Group for the remediation of contaminated sediments from the Ottawa River, which flows into Maumee Bay and Lake Erie. The cleanup will be conducted under the Great Lakes Legacy Act at a cost of $43 million. The cost of the project will be shared equally by the United States Environmental Protection Agency (EPA) and the Ottawa River Group, the local sponsor. The Ottawa River Group is comprised of the City of Toledo and businesses located along the Ottawa River, including: Allied Waste North America, Inc.; Chrysler LLC; DuPont Corporation; GenCorp, Incorporated; Honeywell, Incorporated; Illinois Tool Works, Inc.; and United Technologies Corp. The project will remove 270,000 cubic yards of contaminated sediment from a 5.5 mile stretch of the Ottawa River. Sediments are contaminated with high levels of Polychlorinated biphenyls (PCBs) (up to 800 ppm), polycyclic aromatic hydrocarbons (PAHs) (over 8,000 ppm) and lead (up to 1,600 ppm). The project will remove over 10,000 pounds of PCBs and 100,000 pounds of PAHs from the Ottawa River and result in a healthier benthic community and lower PCB concentrations in fish. The project will reduce human health and ecological risks to acceptable levels as approved by EPA and the State of Ohio, and will help eliminate an Area of Concern from the Great Lakes Basin. Additionally, the project will reduce the mass of PCBs entering Maumee Bay and Lake Erie.

Contacts: Craig Melodia, Office of Regional Counsel, 312-353-8870 and/or Scott Cieniawski, Great Lakes National Program Office, 312-353-9184

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