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October 2009 Significant Cases

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Week of October 5, 2009

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

Region 5 determines Forest County Potawatomi Community Eligible to Receive Clean Water Act 319 (Non-point source) Program Funding

On October 6, 2009, Region 5 determined that the Forest County Potawatomi Community had demonstrated ‘treatment as state' eligibility to receive funding under Section 319 of the Clean Water Act for a non-point source program.

Section 319 of the Clean Water Act (CWA) provides a framework for controlling non-point sources of pollution which can affect water resources. There are two major components to this scheme: (1) Each state/tribe must prepare and submit an assessment report to U.S. EPA for approval. This report identifies, among other things, those waters that are not expected to meet applicable water quality standards without additional measures to control non-point pollution sources, and a process for developing best management practices to address non-point sources. (2) Each state/tribe must submit a management program to U.S. EPA for approval, which outlines implementation plans. 33 U.S.C. §§ 1329(a)-(b). A state/tribe with an approved report and management plan is eligible to apply for grants to help fund program implementation. 33 U.S.C. §§ 1329(h). Pursuant to Section 518 of the CWA, U.S. EPA is authorized to treat tribes in the same manner as states for, among other things, Section 319 of the CWA. 33 U.S.C. 1377(e). The requirements for such treatment as state include: (1) the tribe must be federally recognized; (2) the tribe has a governing body carrying out substantial governmental duties and powers; (3) the functions to be exercised by the tribe pertain to the management and protection of waters held by the tribe, held by the United States in trust for the tribe, or otherwise within the borders of an Indian reservation; and (4) the tribe is expected to be capable of carrying out program activities. 33 U.S.C. §§ 1377(e), (h).

The Forest County Potawatomi Community (FCPC or Tribe), a tribe of about 1,200 members, submitted an application for treatment as a state for purposes of CWA Section 319 in August 2009. The Tribe's reservation comprises nearly 16,000 acres of non- contiguous lands ranging across several counties in northeastern Wisconsin. Trust lands account for nearly 12,000 acres, and the reservation is rich in lakes, streams, and wetlands, which together comprise nearly 44 acres of surface waters and 18 miles of streams. The Tribe's water program has received funding under the CWA since 1993, and its work includes water sampling, groundwater monitoring, and stream habitat assessments. In making this eligibility determination, the Region evaluated the Tribe's application materials and sought additional information regarding the Tribe's grant and program implementation performance history, including both U.S. EPA-administered grant programs and one funded by the U.S. Department of Agriculture. After evaluating all of this information, the Region determined FCPC had demonstrated that it met the criteria of CWA Sections 518 and 319. FCPC joins several other Region 5 tribes who have established CWA 319 eligibility.

Contact: Barbara Wester, Office of Regional Counsel, 312-353-8514

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Week of October 12, 2009

U.S. EPA Issues Order in Response to Petition to Object to Clean Air Act Title V Permit for BP North America Whiting, Indiana

On October 16, 2009, the Administrator signed an Order responding to a petition requesting that U.S. EPA object to the Indiana Department of Environmental Management's (IDEM) modification of a Clean Air Act Title V operating permit for BP North America's Whiting, Indiana facility. IDEM previously had issued a minor source construction permit to authorize BP to modify its facility to process Canadian tar sand crude. IDEM modified the Title V permit to reflect the requirements of the construction permit. In the Order, the Administrator granted the petition in part because (1) IDEM did not place a prohibition on, or otherwise address in the netting calculation for the construction permit, emissions from flares during start-up, shutdown or malfunction; (2) IDEM did not include in the netting calculation for the construction permit emissions from the source's coker quench water tank; (3) IDEM did not respond adequately to public comments on residual emissions from vessel and coke drum depressurization, whether the physical modification would result in an increase in total reduced sulfur emissions, and fugitive emissions; and (4) IDEM did not conduct a proper netting analysis. The Administrator denied the petition in part because (1) the petitioners did not demonstrate that the BP Title V permit impermissibly allows venting of emissions; (2) IDEM's interpretation of requirements related to greenhouse gases is reasonable and consistent with U.S. EPA's then-current policy on greenhouse gases; and (3) the petitioners did not demonstrate that the Title V permit should have included a compliance schedule. IDEM has 90 days to propose to U.S. EPA a permit that addresses the Administrator's objections.

Contacts: Jane Woolums, Office of Regional Counsel, 312-886-6720; Constantine Blathras, Air and Radiation Division, 312-886-0671

Week of October 19, 2009

Ohio Concentrated Animal Feeding Operation and Supervisor Sentenced For Making Illegal Discharge Into Tributary Of Tymochtee Creek; United States v. Ohio Fresh Eggs, LLC

On October 20, 2009, Myron P. Lawler and Ohio Fresh Eggs, LLC ("OFE") were sentenced for illegally discharging egg wash wastewater into Kreisel Ditch, a tributary of Tymochtee Creek. OFE was fined $150,000 and ordered to pay a total of $150,000 to three different non-profit organizations. OFE was also ordered, as part of the plea agreement, to make several improvements to its facilities in Marseilles and Mt. Victory, Ohio. Mr. Lawler was sentenced to three years of probation and ordered to perform 50 hours of community service.

OFE, a Concentrated Animal Feeding Operation (CAFO), is the largest egg producer in the State of Ohio with 12 production facilities located in Northwest and Central Ohio. In Northwest Ohio, OFE operates a commercial egg farm located in Marseilles. Approximately three million egg laying chickens are housed at this egg production facility. Kreisel Ditch is located near the facility.

Eggs produced at the Marseilles OFE facility are washed prior to shipment. The water from the egg washing process is collected in a lagoon at the farm. This wastewater contains broken eggs, soap, and a minor amount of manure. To dispose of the wastewater in the lagoon, OFE applies it to a nearby field owned by OFE. OFE has a permit to apply the wastewater to the field.

A contractor for OFE, Myron P. Lawler, directed a crew which applied the wastewater to the field. At Mr. Lawler's direction, the wastewater was negligently over applied onto the field through the night of March 6, 2007, and into next morning, March 7. As a result of the over-application, on March 7, 2007 the wastewater flowed off of the field, through a series of drainage tiles, into Kreisel Ditch and subsequently into Tymochtee Creek. An information charged both OFE and Mr. Lawler with negligently violating the Clean Water Act.

This case was prosecuted by United States Department of Justice, United States Attorney, Northern District of Ohio, following an investigation by the U.S. EPA Criminal Investigation Division; the Ohio Attorney General's Office, Bureau of Criminal Identification and Investigation; and the Ohio Environmental Protection Agency, Office of Special Investigations, all members of the Northwest Ohio Environmental Crimes Task Force.

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

Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Axss USA, LLC in Platte City, MO

On October 21, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with the Respondent to settle violations of Section 12(a)(1)(B) of FIFRA 7 U.S.C. § 136j(a)(1)(B). Specifically, the Respondent distributed or sold a registered pesticide with claims on its label that substantially differed from claims made for it as a part of the statement required in connection with its registration under Section 3 of FIFRA, 7 U.S.C. § 136a. Region 5 initiated prefiling discussions on this matter in September 2009. The proposed penalty was $7,500. During settlement discussions, the Respondent agreed to pay a civil penalty of $7,500.

Contacts: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; Claudia Niess, Land and Chemicals Division, 312-886-7598

Region 5 Issues Administrative Consent Orders to Six Cleveland Area Metal Recyclers

On October 21, 2009, Region 5 of the U.S. Environmental Protection Agency entered into the last of six administrative consent orders negotiated with metal recycling facilities in the Cleveland, Ohio metropolitan area over the last several months to ensure compliance with Section 608 of the Clean Air Act and U.S. 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. Metal recyclers are required by law to recover the refrigerant from an appliance, or alternatively to verify that such recovery has been completed by someone else, before dismantling the appliance for recycling. A number of Cleveland area companies received finding of violation notices from U.S. EPA in 2008 after inspections in April of that year revealed the facilities' failure to comply with appliance disposal practices required to prevent release of the refrigerants. The following companies subsequently agreed to receive administrative consent orders from U.S. EPA to resolve their violations: A & B Metal Recycling, All City Recycling Inc., JBI Scrap Processors Inc., Brookside Auto Parts Inc., All Scrap Salvage Co. Inc., and Aetna Recycling. Under the terms of the orders, the companies agreed to purchase and use refrigerant recovery equipment, and must, among other things, keep a log documenting their refrigerant recovery activity for two years.

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

District Court enters Consent Decree that resolves claim for the recovery of past costs arising out of a removal action at the Watertown Tire Site in Watertown, Wisconsin

On October 23, 2009, the United States District Court, Eastern District of Wisconsin entered a Consent Decree. 1The Consent Decree enters judgment against Thomas Springer and Watertown Tire Recyclers, LLC (the Settling Defendants) in the amount of $790,930. The Settling Defendants will pay in settlement $1,000. They have also assigned their claims in a pending State court insurance coverage action. The settlement is significant because it occurs in the context of a filed cost-recovery action in which U.S. EPA has settled with PRPs against whom it has alleged liability solely as a result of arranging for the disposal of old tires.

On July 19, 2005, a fire started in the tire chip pile on the east side of the tire processing facility. The fire destroyed the facility and a large tire stockpile. The plume from the fire covered more than 637 square miles, including 290 miles of Lake Michigan. At the request of the Wisconsin Department of Natural Resources, EPA performed air monitoring and expanded a containment basin and constructed a treatment system for run-off water. EPA treated a total of 1,069,931 gallons of water from the containment basin. It incurred costs totaling $1,131,828.11.

The court had previously entered a Consent Decree that resolved the government's claims against a group of generator defendants in exchange for payment of $340,898. In this Consent Decree, the court has entered judgment in the amount of $790,930. DOJ's Corporate Financial Unit has reviewed tax returns and other financial information pertaining to the Settling Defendants. It established that the Settling Defendants had virtually no ability to pay past costs. The assigned claim to proceeds from the insurance litigation may have value. The State trial court recently found that damages arising out of the fire while excluded under the pollution provisions were covered under a fire damage provision of the policy.

Contact: Steven P. Kaiser, Office of Regional Counsel, 312-353-3804

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October 26, 2009

Region Resolves Resource Conservation and Recovery Act Violation Case against Bridgeview Aerosol, Inc. (Bridgeview, Illinois)

On October 22, 2009, the Acting Regional Administrator signed a Consent Agreement and Final Order (CAFO) in which Bridgeview Aerosol, Inc., agreed to pay a penalty of $30,000 for violations of the Resource Conservation and Recovery Act (RCRA) at its automotive and household aerosol product manufacturing facility in Bridgeview, Illinois. Specifically, Region 5 alleged that Bridgeview Aerosol failed to: 1) meet the conditions of 35 IAC § 725.134 necessary to exempt it from the requirement to obtain interim status or apply for and obtain a permit for the storage (accumulation) of hazardous waste and, therefore, stored hazardous waste without a permit or interim status in violation of Section 3005 of RCRA, 42 U.S.C. § 6925(a), and 35 IAC § 703.121; 2) keep seven containers containing hazardous waste closed during storage in violation of 35 IAC § 724.273(a); 3) conduct, record, or maintain a record at the facility of a weekly inspection for the weeks of January 23, 2006, July 16, 2007, and September 24, 2007, in violation of 35 IAC §§ 724.115(d), 724.173(a) and (b)(5) and 724.274; and 4) maintain records documenting that facility personnel received and completed the 2007 annual review of initial hazardous waste management training in violation of 35 IAC § 274.116(d). The parties agreed that settling the matter, without further litigation, was in the public interest. The CAFO became effective on October 26, 2009.

Contacts: Ann Coyle, Office of Regional Counsel, 312-886-2248; Spiros Bourgikos, Land and Chemicals Division, 312-886-6862


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