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September 2009 Significant Cases

Table of Contents

Week of September 7, 2009

7th Circuit Upholds U.S. EPA's Redesignation of Forest County Potawatomi Community's Reservation Lands to Class I under the Prevention of Significant Deterioration Program - Dismisses State Petition for Lack of Standing

On September 9, the 7th Circuit (Kane, Wood and Williams) issued a decision upholding EPA's redesignation to Class I status approximately 11,000 acres of reservation lands held by the Forest County Potawatomi (FCP) Community. The Court dismissed Michigan's petition for review on the grounds that the State had failed to demonstrate standing.

The Tribe applied for Class I status in February 1995, under Clean Air Act (CAA) Section 164, which allows states and tribes to seek Class I status for their lands under the CAA's Prevention of Significant Deterioration Program. The Administrator signed the Final FCP Class I redesignation package on April 18, 2008. This decision consisted of three elements: 1) U.S. EPA's final decision to grant the Tribe's request for Class I status of certain reservation lands, which includes a Federal Implementation Plan (FIP) to codify the Class I area at Part 52 of the Code of Federal Regulations and U.S. EPA's response to comments received during two public comment periods held during the now 13-year span of the rulemaking process; 2) A notice acknowledging U.S. EPA's recognition of a 1998 agreement reached between the Tribe and the State of Wisconsin which resolved a dispute between the parties initiated in 1995 under Section 164(e) of the CAA; and 3) the Administrator's final decision resolving, in the Tribe's favor, a similar dispute invoked by the State of Michigan under Section 164(e) which the Tribe and State were unable to resolve despite more than a decade of U.S. EPA-sponsored and professionally mediated dispute resolution. Michigan's petition seeks judicial review of all three elements of the redesignation decision.

Michigan's main merits arguments turned not on any legal issues involving the redesignation itself (e.g. process followed by Tribe, adequacy of redesignation application, U.S. EPA's review of application), but rather focused on two main issues: (1) U.S. EPA erred in codifying the redesignated area in the PSD FIP for Indian country in Wisconsin (40 CFR 52.2581(f)) because the CAA and Tribal Authority Rule (40 CFR Part 49) preclude U.S. EPA's use of a FIP where a Tribe does not have a pre-existing Tribal Implementation Plan or TIP) and (2) Even if a FIP were an appropriate tool for codifying a class I area, the use of a FIP is so confusing and complicated that U.S. EPA cannot be said to be "directly administering" its regulations as required by the CAA.

The Court held that the State had failed to demonstrate that it had standing because Michigan had not shown a connection between its alleged procedural complaint (that EPA used a FIP rather than a TIP) and any cognizable injury to the State. The Court found unpersuasive the State's argument that a TIP would have included anything different from what was included in EPA's FIP. Additionally, the Court found unpersuasive the State's list of alleged injuries flowing from the redesignation, which included simply adhering to the national federal regulatory requirements for Class I areas (found at 40 CFR 52.21), the potential economic impact of Class I redesignation on potential future emission sources which might not locate in Michigan, and the State's potential "confusion" about its regulatory obligations to the new Class I area. In response to the State's confusion over the Class I manager associated with the newly redesignated area, the Court offered its view that EPA would perform the federal land manager functions until such time as the Tribe would apply for approval of a TIP, pursuant to which EPA could delegate land manager functions. While the Court noted that EPA has not promulgated guidance on the implementation of non-federal class I areas, the Court did not agree with the State's arguments that such guidance was a prerequisite to EPA's appropriate redesignation of the Tribe's reservation lands. The Court concluded its decision with these words:

The Community has waited over fifteen years for finality on the redesignation of its lands. Michigan's challenge to the EPA's redesignation action raises some important issues about the PSD program's regulatory structure, but Michigan has failed to allege a cognizable injury in fact and thus lacks standing to pursue this case. As a result, the Community need not wait any longer.

Contacts: Barbara Wester, Office of Regional Counsel, 312-353-8514; David Coursen, Office of General Counsel, 201-664-0781; Constantine Blathras, 312-886-0671 and Benjamin Giwojna, 312-886-0247, Air & Radiation Division; Perry Rosen, Department of Justice, 202-353-7792

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EPA enters into a settlement with Kenall Manufacturing Company doing business as Subtronics Assembly Company

On September 10, 2009 the United States Environmental Protection Agency, Region 5 (EPA) entered into a Consent Agreement and Final Order (CAFO) to resolve two alleged violations of Sections 313 of the Emergency Planning and Community Right-to-know Act (EPCRA), 42 U.S.C. § 11023, by the Kenall Manufacturing Company, doing business as, the Subtronics Assembly Company, Gurnee, Illinois (Respondent). EPA filed a Complaint in this matter on June 29, 2009 alleging that during calendar years 2003 and 2006, the Respondent processed lead at its Gurnee, Illinois facility in quantities exceeding the threshold for reporting under Section 313(f) of EPCRA, 42 U.S.C. § 11023(f), and that Respondent violated Section 313 of EPCRA and 40 C.F.R. Part 372 by failing to submit Toxic Chemical Release Inventory Reporting Forms (Form R) to EPA and the State of Illinois for lead by July 1, 2004 for calendar year 2003 and by July 1, 2007 for calendar year 2006. EPA proposed a civil penalty of $12,769 for these alleged violations. Prior to the filing of the Complaint Respondent corrected the alleged violations by filing the required forms with EPA and the State of Illinois. Based upon Respondent's good faith and cooperation, EPA and Respondent have agreed to settle this matter for a civil penalty of $8,938.

Contact: John P. Steketee, Associate Regional Counsel, 312-886-0558

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Region 5 Executes Consent Agreement and Final Order with Pechiney Plastic Packaging, Inc., Resolving Resource Conservation and Recovery Act Hazardous Waste Violations at its Facility in Boscobel, Wisconsin

On September 11, 2009, the Region filed a Consent Agreement and Final Order commencing and concluding a proceeding against Pechiney Plastic Packaging, Inc., for four violations of federal and state regulations regarding its storage of hazardous waste at its Boscobel, Wisconsin, facility. The violations included recordkeeping violations under subparts BB and CC of 40 C.F.R. part 264 and violations of the requirements to maintain certification records regarding its hazardous waste storage tank system and to properly label a tank and other storage drums as required by federally-authorized Wisconsin regulations. The settlement requires Pechiney to pay a cash penalty of $7,200.

Contact: Robert Guenther, Office of Regional Counsel, 312-886-0566; Brenda Whitney, Land and Chemicals Division, 312-353-4796

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U.S. EPA issues Consent Agreement and Final Order to Parr's Septic Service LLC for Clean Water Act 405 violations

On September 11, 2009, EPA issued a Consent Agreement and Final Order (CAFO-#CWA-05-2009-0008) in the Parr's Septic Service, LLC (Parr's) CWA Section 405d Septage Land Application Case. Parr's will pay a $1,000.00 penalty, and return to full compliance with all relevant portions of the Clean Water Act (CWA). Parr's operates a septage land application service company in Ferryville (Vernon County), Wisconsin. Between March 2005 and July 2008, Parr's land applied approximately 50,000 gallons of septage sludge per year on open agricultural land. During the same time period, Parr's failed to follow the required record keeping provisions of 40 CFR Part 503, specifically involving development and retention of records of proof of: meeting the nitrogen requirement for the crop or vegetation growth on the land application areas, maintaining the requisite rate of septage application in gallons per acre per year, and descriptions of how Parr's complied with the vector attraction reduction requirements at 40 CFR 503.33(b)(12).

U.S. EPA issued a February 2009 Notice of Violation letter, and proposed assessment of a penalty of approximately $157,000. Parr's asserted an inability to pay the penalty figure, and submitted documentation in support of its assertion. U.S. EPA performed financial analysis of the documentation. Based upon U.S. EPA's analysis, the parties negotiated a settlement for $1,000.00 in penalty, and return to full compliance with the CWA. The above mentioned settlement represents an acceptable outcome based upon the facts of the case, and fulfills the purpose of the CWA.

Contact: Tom Turner, Office of Regional Counsel, 312-886-6613; Valdis Aistars, Water Division, 312-886-0264

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Superfund Sitewide Ready-For-Anticipated Use Determination for Big D Campground Site, OH

On September 4, 2009, EPA Region 5 signed a Superfund Sitewide Ready-For-Anticipated Use (SRAU) Determination for the Big D site located in Kingsville, Ohio. Under a UAO, Olin Corporation incinerated buried drums and associated soils and is monitoring low level groundwater contamination. EPA determined that the cleanup goals in the Record of Decision were met and the institutional controls are in place.

Contact: Richard Nagle, Office of Regional Counsel, 312-353-8222

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Week of September 14, 2009

United States District Court for the Southern District of Illinois lodges cost recovery consent decree

On September 14, 2009, the United States District Court for the Southern District of Illinois lodged a cost recovery consent decree signed by the United States and Pharmacia, Solutia, Mobil, Cerro Copper and the Village of Sauget, as well as co-defendant Department of Defense, in which the defendants pay a total of $5.975 million in cash. This decree is a companion to the decree already entered between the United States and the co-settling defendant Estate of Paul Sauget, under which the government cost recovered over $800,000. Thus, the government has recovered over $6.775 million on Sauget Area One costs. In addition, the decree enters on behalf of the United States a stipulated money judgment of $6.5 million that will be collected by the United States to the extent ongoing insurance coverage litigation between settling defendant Village of Sauget and its insurers is successful. This decree recovers funds expended by EPA Region 5 in its 1998 fund lead removal in Sauget Area One Site G, as well as funds expended by the Region and Department of Justice (DOJ) investigating and litigating matters relating to the entire Area One site. As of 10/1/07, the governments (EPA and DOJ) past costs totaled $7.6 M.

Contact: Thomas J. Martin, Office of Regional Counsel, 312-886-4273

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Judge rules in writing in U.S. v. Jupiter Aluminum Corp. on September 14, 2009

On September 14, 2009, Judge Simon ruled in the U.S. v. Jupiter Aluminum Corporation matter that: (1) defendant's motion to modify the consent decree is denied and (2) defendant's motion for declaratory judgment and preliminary injunction is denied. This written order follows up the court's verbal ruling of May 21, 2009. This ruling completes Judge Simon's Opinion and Order issued on February 18, 2009, which withheld judgment on whether defendant should be allowed to melt "other than clean" ("OTC") scrap prior to installing additional pollution controls. The Judge explains that he denied most of Jupiter's request to modify the Consent Decree in February, but given Jupiter's ostensible financial crisis he allowed Jupiter an opportunity to (a) prove at an evidentiary hearing that its interim upgrades were compliant with the federal emissions standards and (b) make its case that, in light of Jupiter's financial condition, the company should be allowed to melt OTC scrap pending completion of Appendix A modifications. The Judge found that Jupiter's interim upgrades exceed federal emission standards, but that Jupiter failed to demonstrate a sufficient change in circumstances to satisfy the extraordinarily high standard for modifying a judicially-approved consent decree. Unless this order is appealed, Jupiter will be required to pay $3,365,000 in stipulated penalties within 60 days, and immediately begin installing the additional pollution controls required by Appendix A to the Consent Decree.

This case involves enforcement of the Clean Air Act National Emissions Standards for Hazardous Air Pollutants (NESHAP) for secondary aluminum production, 40 C.F.R. Part 63, Subpart RRR. Together with the State of Indiana and the City of Hammond, the United States entered into a consent decree with Jupiter Aluminum in October of 2007 that addressed numerous Subpart RRR violations at its secondary aluminum smelter in Hammond, Indiana. When Jupiter almost immediately began violating the consent decree, the United States demanded stipulated penalties in December 2007. In an effort to renegotiate the consent decree that it was violating, Jupiter moved for relief under Federal Rules of Civil Procedure Rule 60(b) from key consent decree provisions, including the obligation to use only clean scrap until it installs the additional pollution controls required in Appendix A to the Consent Decree and to pay $3,365,000 in stipulated penalties for violations through February 5, 2008.

Contact: Cathleen Martwick, 312-886-7166 or Padma Bending, 312-353-8917, Office of Regional Counsel

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Region 5 Files a Consent Agreement and Final Order Resolving Underground Storage Tank Violations alleged against the Greater Cleveland Regional Transit Authority

In July 2008, Region 5 issued a Notice of Intent to File a Civil Administrative Complaint against the Greater Cleveland Regional Transit Authority (GCRTA) regarding alleged violations of Section 9006 of the Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6991e. The Notice alleged that the GCRTA had failed to comply with release detection and cathodic protection requirements for certain Underground Storage Tanks (USTs) at three of its facilities, and demanded a penalty of $38,548. On September 14, 2009, Region 5 filed a Consent Agreement and Final Order (CAFO) Commencing and Concluding the Administrative Penalty Proceeding. The CAFO alleged specifically that at two separate facilities, the GCRTA stored ethylene glycol anti-freeze, a hazardous substance, in a single-walled UST that did not have adequate secondary containment, and the GCRTA had failed to adequately test the cathodic protection on steel piping of a UST system at another of its facilities. The GCRTA agreed to pay a penalty of $6000 and to spend $22,500 to implement a Supplemental Environmental Project (SEP) to remove four 550 gallon underground draw-off tanks associated with oil/water separators at the GCRTA Central Rail Maintenance Facility.

Contact: Reginald Pallesen, Office of Regional Counsel, 312-886-0555; Mark Restaino, Land and Chemicals Division, 312-886-0394

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Former Indiana Water Treatment Plant Superintendent Sentenced to Prison for Falsifying Reports

On September 15, 2009, Herbert L. Corn, the former superintendent of the City of Rochester wastewater treatment plant in Rochester, Indiana, was sentenced to one (1) year in prison and one (1) year of supervised release, which includes three (3) months of home detention, for falsifying monthly discharge monitoring reports that concealed violations of the Clean Water Act. Corn had previously pleaded guilty to a five-count felony information charging him with making false statements in monitoring reports submitted to the Indiana Department of Environmental Management (IDEM). He admitted that from September 2004 and continuing through May 2007, he submitted at least five (5) reports containing false data for E. Coli, Ammonia (NH3-N), and CBOD-5, pollutants which were discharged to into Mill Creek, a tributary of the Tippecanoe River. The court found that Corn's offense conduct also included fifty-five (55) separate false statements since 2004, and that the offense conduct began even prior to 2004, although the exact dates and times are unknown.

Contact: David Mucha, Office of Regional Counsel, 312-886-9032

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Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Perelli Enterprises. Inc. d/b/a Advantage Sintered Metals, Inc. located in Battle Creek, Michigan

On September 18, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with the Respondent to settle violations of Section 313 of Emergency Planning and Community Right-to-Know Act, 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 2005 and 2006. The Respondent self disclosed its failure to submit Form Rs for copper for calendar year 2005 during prefiling settlement discussions. Region 5 initiated prefiling discussions on this matter in March, 2009. The proposed penalty was $12,468. During settlement discussions, the Respondent agreed to pay a civil penalty of $12,468.

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

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Region 5 Enters into a Consent Agreement and Final Order Resolving Violations of Section 103 of CERCLA and Section 304 of EPCRA by Red Rock Rural Water System, Jeffers, Minnesota

On September 16, 2009, the Regional Administrator, U.S. EPA Region 5, filed a Consent Agreement and Final Order (CAFO) commencing and concluding a matter under Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA) Section 103 and Emergency Planning and Community Right-to-Know Act (EPCRA) Section 304 pursuant to which Red Rock Rural Water System agrees to pay a civil penalty of $6,117.54. The CAFO alleges violations of CERCLA Section 103 and EPCRA Section 304 based on Red Rock Rural Water System's failure to promptly notify the National Response Center (NRC) and State Emergency Response Commission (SERC) of a release of approximately 10.15 pounds of chlorine. The CAFO further alleges that Red Rock Rural Water System failed to timely submit a written follow-up notice to the SERC. Red Rock Rural Water System self-disclosed these violations on-line through EPA's eDisclosure EPCRA Pilot on August 27, 2008, but did not satisfy the criteria to receive a penalty reduction pursuant to EPA's "Small Business Compliance Policy" because they failed to timely correct the violation (criteria 3). EPA calculated an initial penalty calculation for these violations of $61,175.40. In consideration of Respondent's size of business, cooperation, willingness to quickly settle, and voluntary disclosure, EPA determined that an appropriate civil penalty to settle this action is $6,117.54. Pursuant to the CAFO, Red Rock Rural Water System will pay the penalty in 30 days from the effective date of the CAFO.

Contact: Robert H. Smith, Office of Regional Counsel, 312-886-0765; and Ruth McNamara, Superfund Division, 312-353-3193

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Region 5 enters into Administrative Order on Consent under the Clean Air Act in Minneapolis/St.Paul targeted enforcement initiative with Timm's Auto Salvage

On September 16, 2009, U.S. EPA Region 5 signed an agreement with Timm's Auto Salvage ("Timm's"). This enforcement action was part of Region 5's targeted enforcement of scrap yards in the Minneapolis/St. Paul, Minnesota metropolitan area for compliance with the Clean Air Act refrigerant recovery requirements at scrap yards. Timm's owns and operates a scrap metal recycling facility in St. Charles, Minnesota. It was one of the ten largest suppliers of auto scrap and small appliances to Gerdau Ameristeel, Inc. in Minneapolis, Minnesota. In addition to complying with the Clean Air Act refrigerant recovery regulations, Timm's agreed to reject appliances with cut lines or where individuals identified themselves as the person responsible for refrigerant recovery. Additionally, it agreed to provide U.S. EPA with copies of verification statements it accepts and information on loads it has rejected for a one year period.

Contacts: Rich Clarizio, Office of Regional Counsel, 312-886-0559; Lynne Roberts, Air and Radiation Division, 312-886-0250

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United States files complaint against Dearborn Refining Company and Aram Moloian for collection of $1,250,000

On September 14, 2009, the United States filed a complaint in the District Court for the Eastern District of Michigan seeking to collect $1,250,000 on a final decision issued by the Environmental Appeals Board against Dearborn Refining Company.

U.S. EPA filed an administrative complaint against Dearborn Refining Company on September 28, 2001, alleging that it violated the used oil and hazardous waste management regulations at the Dearborn, Michigan facility. On August 15, 2003, Administrative Law Judge Gunning imposed a civil penalty of $1,250,000 against Dearborn Refining Company. She also ordered it to resolve the violations and comply with Resource Conservation and Recovery Act (RCRA). On September 10, 2004, the Environmental Appeals Board issued a final order ("Order"), which affirmed Judge Gunning's initial decision in its entirety. In April of 2005, U.S. EPA conducted a follow-up inspection and determined that Dearborn Refining Company was not complying with the injunctive relief portions of the Order. On July 2, 2005, Region 5 referred the case to the Department of Justice for compliance with the Order. The City of Dearborn evicted Dearborn Refining on February 14, 2006. The Superfund program has been subsequently working with the generator responsible parties to clean-up the Site.

Contacts: Richard Clarizio, Office of Regional Counsel, 312-886-0559; Mike Valentino, 312-886-4582 and Sue Brauer, 312-353-6134, Land and Chemical Division

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Week of September 21, 2009

Region 5 files a Consent Agreement and Final Order to commence and conclude case against Metal Recycling Systems, Inc., Blue Island, Illinois

On September 22, 2009, Region 5 filed a Consent Agreement and Final Order (CAFO) simultaneously commencing and resolving an administrative penalty action against Metal Recycling Systems, Inc. (MRS) for alleged violations of the Regulations for the Protection of Stratospheric Ozone (CFC Regulations), found at 40 C.F.R. Part 82, Subpart F. Specifically, MRS, a scrap recycler, violated the regulations by failing to either collect verification statements for the appliances it accepted or attempting to recover any refrigerant from the appliances. The violations were discovered through an inspection of the facility.

MRS has since come into compliance. In settlement, in addition to paying a cash penalty of $ 30,000, MRS will undertake a one-year Intact Appliance Pilot Program as a Supplemental Environmental Project (SEP). To implement the Pilot Program, MRS will offer an increased price for intact appliances as an incentive to those who might otherwise cut the refrigerant lines, thus illegally and unnecessarily venting the refrigerant contained within. MRS will use its CFC recovery equipment to properly collect refrigerant from the appliances it accepts and track the number of appliances processed through the program.

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

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U.S. EPA Enters into a Settlement with Jeffery and Michael Hoffman of Minneota, Minnesota to resolve alleged violations of Sections 309(g) and 404 of the Clean Water Act

On September 23, 2009, the United States Environmental Protection Agency, Region 5 filed a Consent Agreement and Final Order (CAFO) with U.S. EPA's Regional Hearing Clerk resolving several alleged violations of Sections 309(g) and 404 of the Clean Water Act (CWA), 33 U.S.C. §§ 1319(g) and 1344, by the individuals Mr. Jeffery Hoffman and Mr. Michael Hoffman (Respondents) on property they jointly owned near Minneota, Minnesota. The CAFO alleges that, among other things, the Respondents' failed to obtain a permit for certain construction activities in wetlands adjacent to a stream on their property which resulted in the illegal discharge of pollutants to waters of the United States. The Respondents' have corrected the alleged violations by restoring the damaged wetlands on their property and they have also agreed to pay U.S. EPA a civil penalty of $10,000 to resolve the matter. Prior to filing the CAFO, U.S. EPA consulted the State of Minnesota regarding the assessment of the proposed civil penalty and U.S. EPA issued a public notice seeking comments on a draft of the CAFO as required by 40 C.F.R. § 22.45.

Contact: John P. Steketee, Office of Regional Counsel, 312-886-0558

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Region 5 Files a Consent Agreement and Final Order Commencing and Concluding an Action against Middlebury Hardwoood Products, Inc., Middlebury, Indiana

On September 22, 2009, Region 5 filed a Consent Agreement and Final Order concluding an action against Middlebury Hardwood Products, Inc. Region 5 alleged that Middlebury Hardwood Products, Inc. violated Section313(a) of Emergency Planning and Community Right-to-Know Act (EPCRA). 42U.S.C. §11023(a), and 40C.F.R. §372.30 require the owner or operator of a facility subject to the requirements of Section313 and Part372 to complete and submit to the Administrator of U.S. EPA and to the state in which the facility is located, no later than July1, 1988 and each July1 thereafter, a chemical release form published pursuant to Section 313(g) for each toxic chemical listed under Section313(c) that was manufactured, processed, or otherwise used at the facility during the preceding calendar year in a quantity exceeding the threshold established by Section313(f). The reporting threshold for a chemical identified at Section 313(c) of EPCRA, 42U.S.C. §11023(c), and listed at 40C.F.R. §372.65, that is processed during the 2004 calendar year is 10,000 pounds (42U.S.C. §11023(f) and 40C.F.R. §372.25(b)). Toluene and xylene are chemicals identified at Section 313(c) of EPCRA, 42U.S.C. §11023(c). During the 2004 calendar year, the Respondent's facility processed 16,298 pounds of toluene, CAS No. 108-88-3, and 14,628 pounds of xylene, CAS No. 1330-20-7. The Respondent failed to submit to the Administrator of U.S. EPA and to Michigan a FormR for toluene and a Form R for xylene during the 2004 calendar year on or before July 1, 2005. Middlebury Hardwood Products, Inc. has agreed to pay a civil penalty of $9,832.

Contact: Jose Deleon, Office of Regional Counsel, 312-353-7456

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

On September 22, 2009, U.S. EPA Region 5 signed an agreement with Midwest Iron and Metals ("Midwest"). 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. Midwest owns and operates a scrap metal recycling facility in Milwaukee, Wisconsin that accepted small appliances. In addition to complying with the Clean Air Act refrigerant recovery regulations, Midwest 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 EPA with copies of verification statements it accepts and information on loads it has rejected over a two year period.

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

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Week of September 28, 2009

Region 5 Enters Into a Consent Agreement and Final Order with Johnsonville Sausage, LLC in Sheboygan Falls, Wisconsin to Settle CERCLA Reporting Violations

On September 29, 2009, U.S. EPA, Region 5, filed a fully executed Consent Agreement and Final Order initiating and concluding an action for violations of Section 103(a) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) at a plant owned by Johnsonville Sausage, LLC (Johnsonville) in Sheboygan Falls, Wisconsin. Johnsonville will pay a penalty of $5,000 and perform a supplemental environmental project (SEP) estimated to cost at least $25,000 for failure to immediately notify the National Response Center of a release of approximately 972 pounds of anhydrous ammonia on January 25, 2005. The SEP includes the purchase and installation of four ammonia detectors and one centralized monitoring panel. U.S. EPA initially proposed a penalty of $24,179 in a pre-filing notice letter issued on May 13, 2009 and agreed to reduce the proposed penalty in consideration of Johnsonville's cooperation and agreement to perform a SEP.

Contacts: Christine Liszewski, Office of Regional Counsel, 312-886-4670; Ginger Jager, Superfund Division, 312-886-0767

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U.S. EPA's decision to terminate Environmental Disposal System's Underground Injection Control permits is appealed to the 6Th Circuit Court of Appeals and briefing schedule is set

In a decision issued on July 18, 2008, the Environmental Appeals Board denied a petition to review Region 5's October 22, 2007, decision to terminate two Underground Injection Control (UIC) permits issued to Environmental Disposal Systems, Inc. (EDS) for a facility in Romulus, Michigan. The effective date of the EAB's order was delayed until July 21, 2009.

On September 3, 2009, RDD Investment Corp. and RDD Operations, LLC (which now own and occupy the facility), and the Police and Fire Retirement System of the City of Detroit (which owns the RDD entities and was a major investor in EDS), appealed the permit termination decision to the 6th Circuit Court of Appeals.

On September 10, 2009, the Petitioners filed a motion for stay pending appeal. The Department of Justice (DOJ) will be filing the government's opposition to the stay request on October 2, 2009. DOJ worked closely with Office of Regional Counsel and Office of General Counsel in preparing the brief.

The Petitioners' brief on the merits is due in mid-November. The government's response will be due in mid-December.

Contact: Thomas Krueger, Office of Regional Counsel, 312 886-0562; Leslie Patterson, Underground Injection Control, 312-886-4904; Mindy Nigoff, Office of General Counsel, 202-564-0883

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Region 5 Files a Consent Agreement and Final Order Commencing and Concluding a Proceeding with DeKalb Metal Finishing, Inc.

On September 29, 2009, Region 5 filed a Consent Agreement and Final Order (CAFO) commencing and concluding a proceeding to assess a penalty against DeKalb Metal Finishing, Inc. (DeKalb) under Section 3008 of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6928. DeKalb conducts electroplating, plating, polishing, anodizing, and coloring primarily for the automobile industry. Region 5 alleged that DeKalb stored hazardous waste without a permit or interim status in violation of Section 3005 of RCRA, 42 U.S.C. § 6925(a) and the requirements of 329 IAC §§ 3.1-13-1, 3.1-13-2(1), (2), (3), (4), and Sections 3.1-13-3 through 3.1-13-17. EPA also alleged that DeKalb improperly managed and stored used oil in violation of the used oil requirements of RCRA. The CAFO requires DeKalb to pay a civil penalty of $100,000 over a four year time period. The CAFO also requires DeKalb to comply with all rules, regulations, and statutory requirements of RCRA.

Contacts: John C. Matson, Office of Regional Counsel, 312-886-2243; Sheila Burrus, Land and Chemicals Division, 312-353-3443

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Region settles Emergency Planning and Community Right-to-Know Act 313 Reporting Case against Automated Circuit Technology, Inc. in Menominee Falls, Wisconsin

On September 30, 2009, Region 5 filed a Consent Agreement and Final Order (CAFO) commencing and concluding the proceeding, resolving an administrative case under Section 313 of Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. § 11023, against Automated Circuit Technology, Incorporated (the Respondent) located in Menominee Falls, Wisconsin. The Region alleged that the Respondent failed to submit to the U.S. EPA and to the State of Wisconsin a Form R for lead for the 2004 calendar year, on or before July 1, 2005, as required.

The Region's inspection of the Automated Circuit facility revealed that during the calendar year 2004, the Respondent processed, as defined by 40 C.F.R. § 372.3, the toxic chemical lead, listed at 40 C.F.R. § 372.65, in quantities exceeding the 100 pound threshold for reporting set forth at Section 313(f) and at 40 C.F.R. § 372.28, but that no Form R had been filed for the chemical for that year. The Respondent has subsequently come into compliance by submitting the required Form R.

The assessed civil penalty for the violation in the CAFO is $4,315. This amount was calculated in accordance with the Enforcement Response Policy and represents a reduction from the base level penalty of $6,448 in recognition of the Respondent's good faith and co-operation and its voluntary return to compliance.

Contacts: Andre Daugavietis, Office of Regional Counsel, 312-886-6663, Kenneth Zolnierczyk, Land and Chemicals Division, 312-353-9687

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Region 5 Issues an Administrative Order on Consent Requiring Corrective Action at Textileather Corporation's Toledo, Ohio Facility

On September 30, 2009, U.S. EPA issued an Administrative Order on Consent requiring corrective action under Section 3008(h) of Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6925(h), at Textileather Corporation's Toledo, Ohio facility. Until recently, Textileather manufactured vinyl products at the facility for use primarily in the automotive industry. The 47 acre facility is located in a mixed land-use area including industrial, commercial, and residential properties. The schedule in the Order requires submission of a Corrective Measures Study in December 2012 followed by a U.S. EPA final decision on corrective measures in 2013.

Contacts: Brian Barwick, Office of Regional Counsel, 312-886-6620; Carolyn Bury, Land and Chemicals Division, 312-886-3020

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Region 5 enters into Administrative Order on Consent under the Clean Air Act in Minneapolis/St.Paul targeted enforcement initiative with Alter Trading Corporation

On September 30, 2009, U.S. EPA Region 5 signed an agreement with Alter Trading Corporation ("Alter"). This enforcement action was part of Region 5's targeted enforcement of scrap yards in the Minneapolis/St. Paul, Minnesota metropolitan area for compliance with the Clean Air Act refrigerant recovery requirements at scrap yards. Alter owns and operates a number of scrap metal recycling facilities in Region 5. It was one of the ten largest suppliers of auto scrap to Gerdau Ameristeel, Inc. in Minneapolis, Minnesota. From April 1, 2008 until September 9, 2008, U.S. EPA identified over 300 verification statements that were deficient. Deficiencies included one or more of the following: did not have sworn statements; were not completed; did not identify the person recovering refrigerant; or identified persons who most likely could not have recovered refrigerant. In addition to complying with the Clean Air Act refrigerant recovery regulations, Alter agreed to: establish a refrigerant recovery program for its suppliers who are peddlers; institute an inspection program for motor vehicles it receives from its peddlers; revise its verification statement and frequent supplier contracts; and not accept small appliances. Additionally, it agreed to provide U.S. EPA with copies of verification statements it accepts and information on load it has rejected over a one year period.

Contacts: Rich Clarizio, Office of Regional Counsel, 312-886-0559; Lynne Roberts, Air and Radiation Division, 312-886-0250

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Region 5 enters into Administrative Order on Consent under the Resource Conservation and Recovery Act with Usher Enterprises, Inc. for almost $700,000 in facility upgrades in Detroit, Michigan

On September 30, 2009, U.S. EPA Region 5 signed a Consent Agreement and Final Order (CAFO) with Usher Enterprises, Inc. ("Usher"). The CAFO requires Usher to upgrade two of its facilities by installing new tanks, upgrading secondary containment, and decontaminating and testing the integrity of other tanks. Usher will also pay a penalty of $19,700 plus $300 interest based on its financial condition. Usher is a used oil processor with two facilities located in the Detroit area. It stored close to 1,000,000 gallons of used oil at one location and had over 50 tanks at the other location. U.S. EPA inspected the Usher facilities in 2002 and 2005. The inspections were identified as part of the Detroit Flyway Initiative.

Contacts: Rich Clarizio, Office of Regional Counsel, 312-886-0559; Brenda Whitney, Land and Chemicals Division, 312-353-4796

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Region 5 files a combined Complaint and Consent Agreement and Final Order with A&A Manufacturing of New Berlin, Wisconsin

Region 5 initiated and completed this enforcement action with a combined Complaint and Consent Agreement and Final Order (CAFO) on September 30, 2009, with A&A Manufacturing of New Berlin, Wisconsin. This document settles violations of Section 110 of the Clean Air Act, 42 U.S.C. § 7610, and the Wisconsin State Implementation Plan by failing to apply for and receive an operating permit for their operations. A&A Manufacturing has resolved this violation by applying for an operating permit and is awaiting issuance of such a permit by the Wisconsin Department of Natural Resources. This settlement will require A&A Manufacturing to pay a penalty of $79,429 and to implement two Supplemental Environmental Projects, which reduce the toluene and volatile organic compound emissions from two coatings that they use. This penalty includes a reduction for cooperation and good faith efforts at compliance, along with credit for implementing a supplemental environmental project.

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

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Region 5 enters into Administrative Order on Consent under the Clean Air Act in Minneapolis/St.Paul targeted enforcement initiative with Toy's Scrap and Salvage Corporation

On September 28, 2009, U.S. EPA Region 5 signed an agreement with Toy's Scrap and Salvage Corporation ("Toy's"). This enforcement action was part of Region 5's targeted enforcement of scrap yards in the Minneapolis/St. Paul, Minnesota metropolitan area for compliance with the Clean Air Act refrigerant recovery requirements at scrap yards. Toy's owns and operates a scrap metal recycling facility in Eau Claire, Wisconsin. It was one of the ten largest suppliers of auto scrap to Gerdau Ameristeel, Inc. in Minneapolis, Minnesota. From September 1, 2007 to September 30, 2008, it processed an estimated 12,000,000 pounds of crushed automobiles without recovering refrigerant or verifying the recovery of refrigerant. In addition to complying with the Clean Air Act refrigerant recovery regulations Toy's agreed to reject appliances with cut lines or where individuals identified themselves as the person responsible for refrigerant recovery. It modified its verification statements, frequent supplier contracts and third-party recovery contracts. Additionally, it agreed to provide U.S. EPA with copies of verification statements it accepts and information on loads it has rejected for a one year period.

Contacts: Rich Clarizio, Office of Regional Counsel, 312-886-0559; Lynne Roberts, 312-886-0250

Region 5 enters into Administrative Order on Consent under the Resource Conservation and Recovery Act with U.S. Army Corps of Engineers for clean-up of lead contamination near Mississippi River

On September 28, 2009, U.S. EPA Region 5 signed a Consent Agreement and Final Order (CAFO) with the U.S. Army Corps of Engineers (USACE) to clean-up lead contamination from excavation activities at lock and dam 12 (LD12). LD12 is located on the Illinois side of the Mississippi River near Savanna, Illinois. The CAFO requires USACE to remove residual lead contamination from LD12 and an off-site location (Midwestern 3PL). USACE also agreed to pay a penalty of $22,000 to resolve the violations. From November 2-3, 2004, USACE excavated and shipped off-site approximately 200 tons of lead contaminated soils to the Midwestern 3PL site located near Savanna, Illinois. The lead contamination may have originated from sand blasting of bulkheads at LD12. Although USACE had removed a majority of the 200 tons from Midwestern 3PL, there was residual contamination exceeding the TCLP and Illinois Tier I TACO concentrations. Additionally, lead concentrations exceeded the TCLP and Illinois Tier I TACO levels at the LD12 Site. USACE anticipates that the remaining clean-up work will cost between $220,000 and $400,000, depending on the amount of lead to be excavated.

Contacts: Rich Clarizio, Office of Regional Counsel, 312-886-0559; Graciela Scambiatterra, Land and Chemicals Division, 312-353-5103

U.S. EPA enters into settlement with Paw Paw Plating, Inc. of Paw Paw, Michigan

On October 1, 2009, EPA Region 5, entered into a Consent Agreement and Final Order (CAFO) to resolve alleged violations of Sections 312 of the Emergency Planning and Community Right-to-know Act (EPCRA), 42 U.S.C. § 11022, by Paw Paw Plating, Inc. (Respondent) located in Paw Paw, Michigan. The combined Complaint and CAFO in this matter alleges that during calendar years 2004 and 2005, sulfuric acid and nitric acid were present at the Respondent's facility in quantities exceeding the threshold for reporting under Section 313(a) of EPCRA, 42 U.S.C. § 11022(a), and that the Respondent violated Section 312 of EPCRA by failing to submit the required Emergency and Hazardous Chemical Inventory Forms to the appropriate emergency organizations as required by the Act. The Respondent corrected the violations and has certified to U.S. EPA that it is currently in compliance with the Act. Based upon Respondent's good faith, cooperation and inability to pay the proposed civil penalty in this matter, U.S. EPA and the Respondent have agreed to settle this matter for a civil penalty of $9,000.

Contact: John P. Steketee, Office of Regional Counsel, 312-886-0558

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Great Lakes Legacy Act Agreement Amendment Signed for Eighteenmile Creek Project, Niagara County, NY

On September 29, 2009, the Great Lakes National Program Office (GLNPO) and the Niagara County Soil and Water Conservation District signed an amendment to the Project Agreement under the Great Lakes Legacy Act (GLLA) for the Eighteenmile Creek watershed. The amendments incorporated new provisions of GLLA that allow a site investigation to be done at 100% federal expense. The feasibility and design work cost will cost approximately $690,000. As required under GLLA, the local sponsor, together with the New York State Department of Environmental Conservation, will provide 35% of the resources in funds and service-in-kind.

The Eighteenmile Creek is located in Northwest New York, near the towns of Lockport and Newfane, New York, and eighteen miles east of the Niagara River. It flows from south to north emptying into Lake Ontario at Olcott Harbor. The land surrounding the creek is primarily croplands and orchards, interspersed with small towns and commercial facilities. The major sources of sediment contamination are believed to be the historically industrialized areas in Lockport and the Lockport sewage collection system.

Contact: Richard Nagle, Office of Regional Counsel, 312-353-8222

Region 5 Signs a Consent Agreement and Final Order with Paragon Firstronic Resolving Toxics Release Inventory Reporting Violations

On September 30, 2009, U.S. EPA Region 5 filed a Consent Agreement and Final Order (CAFO) with the Regional Hearing Clerk that resolves, under Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. § 11023, Respondent's alleged violations of the regulations at 40 C.F.R. §§ 372.22 and 372.30, requiring completion and submittal of a toxic chemical release inventory form for the years 2004 through 2007, for processing lead at its facility in quantities exceeding the reporting threshold. Under the terms of the CAFO, the Respondent agreed to, and has paid, a $78,498.00 penalty.

Contacts: Maynard Shaw, Land and Chemicals Division, 312-353-5867; Harriet Croke, Office of Regional Counsel, 312-343-4789

Region 5 Issues Administrative Consent Order to Cleveland Corporation

On September 30, 2009, Region 5 of the U.S. Environmental Protection Agency entered into an administrative consent order with the Cleveland Corporation of Zion, Illinois, to ensure compliance with Section 608 of the Clean Air Act and EPA's regulations for the protection of the stratospheric ozone. Certain refrigerants contained in appliances and motor vehicle air conditioners, if released to the environment, deplete the stratospheric, or "good," ozone layer, allowing dangerous amounts of cancer-causing ultraviolet rays from the sun to strike the earth. Cleveland Corporation, a metal recycler, is required by law to recover refrigerants from the appliances it recycles, or, alternatively, verify that such recovery has been completed by someone else, before dismantling the appliance for recycling. Under the terms of the order, Cleveland Corporation purchased refrigerant recovery equipment, and must, among other things, keep a log documenting its refrigerant recovery activity for two years.

Contacts: Erik Olson, Office of Regional Counsel, 312-886-6829; Natalie Topinka, Air and Radiation, 312-886-3853

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