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July 2009 Significant Cases

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Week of July 6, 2009

On July 6, 2009, a Consent Agreement and Final Order was filed resolving Emergency Planning and Community Right-to-Know Act claims with American Cold Storage - North American, L.P., Boonville, Indiana

U.S. EPA has resolved its Emergency Planning and Community Right-to-Know Act (EPCRA) Section 312(a), 42 U.S.C. Section 11022(a) claims against the Respondent, American Cold Storage -North America, L.P. by entering into a Consent Agreement and Final Order (CAFO). The CAFO was filed with the Regional Hearing Clerk on July 6, 2009. The CAFO provides that American Cold Storage will pay the United States Treasury a civil penalty of $36,269 within thirty days of the CAFO becoming final by being filed with the Regional Hearing Clerk. This CAFO settles U.S. EPA's claims that American Cold Storage- North America, L.P. failed to file in a timely fashion the Form Rs required by EPCRA Section 312(a) with the three entities required by EPCRA: the State Emergency Response Commission, the Local Emergency Planning Committee, and the local Fire Department. EPCRA requires that the Respondent file on an annual basis completed Emergency and Hazardous Chemical Inventory forms, commonly known as Form Rs, with these three entities when it has at its facility one or more such chemicals above the reportable threshold quantity. The civil penalty agreed to in settlement reflects the fact that the company has been co-operative, quick to work with U.S. EPA to resolve this case; is a small business, along with other mitigating factors; and has come into compliance with the requirements of EPCRA.

Respondent American Cold Storage - North America, L.P. is a Tennessee partnership which operates a cold storage facility for frozen foods in Boonville, in southern Indiana. This action stems from an inspection of a Region 4 American Cold Storage facility, which revealed non-compliance with filing of required EPCRA Form Rs. Review of the Region 5 facility's record of compliance with EPCRA's requirements resulted in the instant enforcement action, hereby resolved by the CAFO. American Cold Storage - North America, L.P. stored ammonia, sulfuric acid, and lead in amounts beyond the threshold level, requiring reporting under EPCRA to the three entities identified above. This CAFO, which comes before a complaint was filed in this matter, commences and concludes U.S. EPA's claims against American Cold Storage -North America, L.P. in Region 5.

Contacts: Jerome P. Kujawa, Office of Regional Counsel, 312-886-6731; Ruth McNamara, Superfund Division, 312-353- 3193

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Region 5 enters into a Consent Agreement and Final Order requiring Central Sod Farms, Inc., Plainview, Illinois, to comply with the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136 to 136y and to pay a civil penalty in the amount of $880

On July 8, 2009, we filed against Central Sod Farms, Inc. (Respondent) a Consent Agreement and Final Order (CAFO) commencing and concluding a civil administrative action which alleged it failed to display to employees proper emergency medical care information for its use of the pesticide "Strike 3," as required by the regulations at 40 C.F.R. §§ 170.135(c) and 170.235(c), and in violation of section 12(a)(2)(G) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136j(a)(2)(G), and required it to pay a civil penalty of $880 pursuant to section 14(a)(4) of FIFRA, 7 U.S.C. § 136l(a)(4), and U.S. EPA's Enforcement Response Policy for FIFRA, dated July 2, 1990.

Contacts: Jeffery M. Trevino, Office of Regional Counsel, 312-886-6729; Terence Bonace, Land and Chemicals Division, 312-886-3387

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Region 5 signs a Compliance Order on Consent with Lucille and Tom Warfield

On July 7, 2009, Region 5 signed a Compliance Order on Consent with Lucille and Tom Warfield (Respondents) that resolves Clean Water Act (CWA) Section 301 violations. 33 U.S.C. § 1311. In August of 2003, Respondents discharged an unknown amount of pollutants into approximately 22.1 acres of wetlands that are adjacent to an unnamed tributary to Little Graham Creek in Ripley County, Indiana. Pursuant to Section 309 of the CWA, EPA issued this Compliance Order on Consent in which Respondents have agreed to 1) restore approximately 4 acres of forested wetland; 2) install and maintain a 60 foot wide riparian buffer along Little Graham Creek and two of its unnamed tributaries; and 3) legally protect these areas and an approximately 11 acres of existing forested wetlands with a conservation easement. Respondents have already performed a significant portion of their obligations under the Compliance Order.

Contacts: Leslie Kirby-Miles, Office of Regional Counsel, 312-353-9443; Greg Carlson, Water Division, 312-886-0124

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Week of July 13, 2009

Region 5 enters into Administrative Order on Consent under the Clean Air Act in a Milwaukee targeted enforcement initiative

On July 13, 2009, U.S. EPA Region 5 signed an agreement with Auto & Scrap Recyclers (Auto & Scrap). This enforcement action was part of Region 5's targeted enforcement of scrap yards in the Milwaukee, Wisconsin metropolitan area for compliance with the Clean Air Act refrigerant recovery requirements at scrap yards. Auto & Scrap owns and operates a scrap metal recycling facility in Milwaukee, Wisconsin. In addition to complying with the Clean Air Act refrigerant recovery regulations Auto & Scrap agreed to purchase and use refrigerant recovery equipment at its facility; train its employees on its proper use; and reject appliances with cut lines or where individuals identified themselves as the person responsible for refrigerant recovery. It also agreed to provide U.S. EPA with copies of verification statements it accepts and information on loads it has rejected over a two year period.

Contacts: Richard Clarizio, Office of Regional Counsel, 312-886-0559; Natalie Topinka, Air and Radiation Division, 312-886-3853

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Region 5 signs a Consent Agreement and Final Order with Wisconsin Plating Works of Racine, Inc., Racine, Wisconsin

Region 5 initiated this enforcement action with a complaint on September 22, 2008.
On July, 10, 2009, Region 5 signed a consent agreement and final order (CAFO) with Wisconsin Plating Works of Racine, Inc., Racine, Wisconsin to settle violations of Section 112 of the Clean Air Act, 42U.S.C. § 7612, and 40 C.F.R. Part 63, Subpart T for failing to monitor and maintain records of monitoring the temperature of the freeboard refrigeration device used as control equipment on their vapor degreaser. The CAFO was filed on July 14, 2009. Wisconsin Plating Works of Racine, Inc. is currently in compliance with the Clean Air Act. This settlement will require Wisconsin Plating Works of Racine, Inc. to pay a penalty of $30,000. This penalty includes a reduction for the economic impact of the penalty on the company.

Contacts: Padmavati Bending, Office of Regional Counsel, 312-353-8917; Robert H. Smith, Office of Regional Counsel, 312-886-0765

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Change to Ohio's Permit Appeal Procedure - Reduced Time for Appeals

In July, the Ohio legislature passed, and the Governor signed into law, a state budget bill (HB1) which contained a provision limiting the time in which the state's permit appeals board (the Environmental Review Appeals Commission or "ERAC") must decide appeals. ERAC decides Ohio permit, rule, enforcement and other environmental appeals. The new Ohio law provides that ERAC must issue its written decision orders in appeals before it as follows:

- by December 15, 2009, for appeals filed before April 15, 2008
- by July 15, 2010, for appeals filed as of October 15, 2009
- within 12 months of appeal, for appeals filed after October 15, 2009

The statutory timeframes are much shorter than ERAC's past permit appeals case schedules have been, and affect hundreds of filed appeals. For example, the NRDC appeal of the AMP-Ohio air permit was filed in spring of 2008, and ERAC had set the hearing to begin on March 8, 2010, but the new statute requires a written decision in the case by December 15, 2009. ERAC's reaction to this new legislation was to estimate that they have 330 cases to settle by December 15, 2009, which would result in each case only being allowed a 1-hour hearing (30 minutes for each side).

The permit appeals process is not part of the Ohio State Implementation Plan (SIP), but it closely affects the SIP permit programs. Citizens groups with permit appeals pending have expressed concerns that the new rules violate their due process rights. It is likely that citizens may petition the Agency to find the Ohio SIP deficient due to having an inadequate appeals process.

Contact: Andre Daugavietis, Associate Regional Counsel, 312-886-6663

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Week of July 20, 2009

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Week of July 27, 2009

Court Enters Toxic Substances Control Act Section 406(b) Consent Decree in United States of America and the State of Michigan v. Wallside, Inc.

On July 30, 2009, following notice and an opportunity for comment, the Eastern District of Michigan entered a consent decree in a matter brought under Section 406(b) of Title IV of the Toxic Substances Control Act, 15 U.S.C. § 2686(b) (TSCA) and the State of Michigan Abatement Act in United States of America and the State of Michigan v. Wallside, Inc.

Section 406(b) of TSCA directed U.S. EPA to issue regulations requiring that compensated lead-based paint renovators distribute the EPA-approved pamphlet to owners and occupants of most pre-1978 residential housing before beginning renovations. In this matter, the United States, on behalf of U.S. EPA, along with the State of Michigan, allege that Wallside, Inc. (Wallside) violated the requirements of Section 406(b) of TSCA, 15 U.S.C. § 2686(b), and its implementing regulations, referred to as the Residential Property Renovation Rule, as well as Michigan Rule 325.99408(6) and (7). The alleged violations are related to Walllside's failure to comply with the federal and state requirements for hazard notification and education.

In the consent decree, Wallside certifies that it is complying with the Residential Property Renovation Rule and State law. Wallside will pay a total penalty of $100,000, which includes a $50,000 administrative penalty to the United States and a $50,000 penalty to the State of Michigan. Wallside will also perform two supplemental environmental projects (SEPs). The first SEP (the Windows SEP) is a State SEP. Under the Windows SEP, Wallside will provide windows with a retail value of $350,000 to the State of Michigan for installation in owner-occupied target housing. The second SEP (Lead-Safe Work Practices SEP) is a federal SEP. Under the Lead-Safe Work Practices SEP, beginning no later than 30 days after entry of the consent decree, for all window replacement work by or on behalf of Wallside in "Target Housing" and "Child-occupied facilities", Wallside will use only Lead Safe Worker Practices Workers as defined in the consent decree for all window replacement work done by or on behalf of Wallside. The consent decree provides that at such time as EPA's final regulation on renovation and remodeling under Section 402 of TSCA becomes fully effective and applicable to Wallside, U.S. EPA's final regulation's requirements will supersede the Lead-Safe Work Practice requirements of the consent decree. The company will spend approximately $235,000 for the federal SEP.

Contacts: Mary McAuliffe, Office of Regional Counsel, 312-886-6237; Mark Palermo, Office of Regional Counsel, 312-886-6082; and Scott Cooper, Land and Chemicals Division, 312-886-1332

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Consent Decree Entered with Friction Holdings LLC Under the Clean Water Act, Resource Conservation and Recovery Act, Toxic Substances Control Act, and Clean Air Act

On July 27, 2009, the consent decree in United Statesv. Friction Holdings LLC, Civ. No. 1:09-cv-662-WTL-JMS, was entered by the United States District Court for the Southern District of Indiana. The consent decree resolves alleged violations of the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387; the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k; the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2692; and the Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q, in connection with Friction Holdings' operation of an automotive and heavy duty wet friction material and parts manufacturing facility in Crawfordsville, Indiana. This facility was previously owned by Raybestos Products Company.

Under the consent decree, Friction Holdings is required to: (1) pay a civil penalty of $337,500 based on their inability to pay a larger penalty; (2) pursuant to the Clean Water Act, prepare and implement various sampling, monitoring, training, reporting, and operation plans to insure that the facility's waste water is being handled properly; (3) pursuant to RCRA, investigate the facility's groundwater to determine if the groundwater is contaminated with PCBs and other hazardous substance, and if so whether the migration of the contaminated groundwater is under control; (4) pursuant to RCRA, remediate two small areas of suspected PCB contamination; and (5) pursuant to TSCA, eliminate several sources of PCB contamination at the facility, and study the need for, and conduct where required, risked-based disposals or remediation of on-facility PCB contamination. Workplans and schedules for all of the above work are due by September 25, 2009. The estimated cost of the injunctive relief is $305,000. Prior to entering into the consent decree, the Defendant brought the facility into compliance with the Clean Air Act and resolved the allegations in the Complaint pertaining to violations of that statute. U.S. EPA, Region 5, acted as pre-filing DOJ lead in negotiating the settlement and preparing the Complaint and consent decree.

Contacts: Thomas Kenney, Office of Regional Counsel, 312-886-0708; Robert H. Smith Office of Regional Counsel, 312-886-0765

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Region 5 issues Unilateral Administrative Order to Behr Dayton Thermal Products LLC at Behr Dayton Thermal Systems VOC Plume Site in Dayton, Ohio

Region 5 issued a unilateral administrative order (UAO) to Behr Dayton Thermal Products LLC (Behr) for a removal action to address the threat posed by vapor intrusion at the Behr Dayton Thermal Systems VOC Plume Site in Dayton, Ohio (the Site). The groundwater beneath Behr's facility is contaminated with volatile organic compounds (VOCs), including trichloroethene (TCE). Vapor intrusion occurs when vapors produced by a chemical spill or groundwater contamination plume migrate through soil into the foundations of structures and into the indoor air. Elevated levels of TCE have been detected in homes and other structures near the Behr facility.

U.S. EPA conducted negotiations with Behr and the predecessor of Old Carco LLC (Chrysler) in 2006 to address the threat posed by vapor intrusion at the Site. Chrysler entered into a settlement with U.S. EPA on December 19, 2006, requiring it to investigate the contamination and install vapor abatement units in structures where TCE exceeded health-based levels. To date, U.S. EPA and/or Chrysler have installed 205 vapor abatement mitigation systems and a soil vapor extraction (SVE) system to address certain residences near the Behr facility whose vapor abatement systems were not adequately lowering TCE levels. Chrysler stopped work on the removal on July 10, 2009, and EPA has been operating that SVE system. Under the UAO, Behr would continue the removal action. The UAO requires Behr to operate and maintain that SVE system; conduct annual performance sampling monitoring of installed abatement systems; based on that sampling, modify and/or update abatement systems to achieve health based levels; conduct vapor intrusion sampling at locations U.S. EPA identifies; and install abatement systems at those locations exceeding health base levels.

The Site was listed on the National Priorities List on May 11, 2009. U.S. EPA is conducting a separate remedial investigation and feasibility study to assess the nature and extent of the contamination, and to evaluate potential remedial options. The effective date of the removal UAO is July 31, 2009.

Contact: Maria Gonzalez, Office of Regional Counsel, 312-886-6630

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Michigan men admit dumping fish offal in Lake Michigan

Carl and Don Frazier, Incorporated, a fish processing firm in Michigan's Upper Peninsula, pleaded guilty July 28, 2009 to felony charges arising from the dumping of fish offal into Lake Michigan. The owners of the firm, Carl L. Frazier and Donald R. Frazier, admitted negligently violating the federal Clean Water Act. The investigation revealed that Carl L. Frazier and Donald R. Frazier, who are brothers, launched Carl and Don Frazier, Incorporated in 1986. The corporation processed whitefish and other fish for commercial sale, creating waste fish offal (the internal organs and other body parts). The offal was collected in 50 gallon barrels, each of which held 400-500 pounds of waste. Beginning in the late 1990's, Carl and Don Frazier themselves, as well as employees, began dumping barrels of fish offal into the waters and onto the shoreline of Epoufette Bay, in Mackinac County. Carl and Don Frazier individually will be subject to a minimum fine of $2,500 and a maximum fine of $100,000. The corporation faces a minimum fine of $5,000 and a maximum fine of $500,000. Under the terms of plea agreements, Carl and Don Frazier have agreed to be personally liable for any fine imposed on the corporation. In addition, Carl and Don Frazier could also each be sentenced to up to a year in prison.

Contact: David M. Taliaferro, Office of Regional Counsel, 312-886-0815

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Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with A C Foundry, Incorporated of Battle Creek, Michigan

On July 29, 2009, Region 5 filed a Consent Agreement and Final Order commencing and concluding a proceeding with the Respondent (i.e., A C Foundry, Incorporated) to settle violations of Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. Section 11023. Specifically, the Respondent failed to submit Form Rs to the Administrator and to Michigan for copper for calendar years 2004 through 2006 and for lead for calendar years 2004 through 2007. The Respondent self disclosed its failure to submit Form Rs for copper for calendar years 2004 and 2005 and for lead for calendar years 2004, 2005 and 2007 during prefiling settlement discussions. Region 5 initiated prefiling discussions on this matter in February 26, 2009. During settlement discussions, the Respondent agreed to pay a civil penalty of $8,000.

Contacts: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; Robert Allen, Land and Chemicals Division, 312-353-5871

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