October 2008 Significant Cases
Table of Contents
Week of October 6, 2008
U.S. District Court holds Section 113(h) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Bars Resource Conservation and Recovery Act (RCRA) Citizen Suit.
On September 25, 2008, the U.S. District Court for the Northern District of Illinois, Eastern Division, dismissed three RCRA citizen suits. The Court held that the suits were precluded by Section 113(h) of CERCLA, even though the suits were filed prior to the commencement of the government's action under CERCLA.
Plaintiffs, Thomas Snitzer and River Valley West LLC, had filed three RCRA citizen suits, in April 2005, August 2006 and October 2006, against Defendant, Peoples Gas. The suits sought injunctive relief that would require Peoples Gas to abate an alleged imminent and substantial endangerment to health or the environment from eight former manufactured gas plants along the Chicago River. The three suits were consolidated into one action. On June 5, 2007, the United States Environmental Protection Agency (U.S. EPA) signed an Administrative Order on Consent with Peoples Gas. Pursuant to the terms of the Areas of Concern (AOC), Peoples Gas agreed to conduct an engineering evaluation and cost analysis (EE/CA) at eleven former manufactured gas plants and to pay oversight costs incurred by the U.S. EPA. Following the completion of the EE/CA, a final cleanup determination will be made for each site by U.S. EPA, in consultation with Illinois EPA, the City of Chicago and area residents. The eight sites that were the subject of Plaintiffs' lawsuits were among the eleven sites covered by the AOC.
In July 2007, Peoples Gas moved to dismiss the RCRA citizen suits arguing that the suits were barred by Section 113(h) of CERCLA, which precludes a challenge to a removal or remedial action selected by U.S. EPA. Plaintiffs argued that Section 113(h) did not apply to citizen suits filed before the commencement of a government action/order. In September 2007, the Court stayed the RCRA litigation pending the conclusion of U.S. EPA's actions. Plaintiffs moved for reconsideration of the stay and the Defendant again moved for dismissal of the suits.
In its September 2008 ruling, the Court found that the timing argument was a case of first impression. The Court held that Section 113(h) of CERCLA makes no reference to the timing issue of when a citizen suit is filed but speaks in general terms of the inability of federal courts to hear challenges to removal or remedial actions. Therefore, the Court found that Section 113(h) precludes any challenge to a removal or remedial action, regardless if a citizen suit was filed prior to an AOC being entered. The Court then concluded that Plaintiffs' litigation was a challenge for the purposes of Section 113(h). The Court found that allowing the Plaintiffs' litigation to go forward would constitute a review of Section 106(a) of CERCLA, which was the statutory basis of the AOC between Peoples Gas and U.S. EPA. The Court believed that in light of the ongoing action by U.S. EPA, it was U.S. EPA, not the Court, that was best equipped to deal with the alleged hazard in question. Lastly, the Court held that by dismissing the Plaintiffs cases, it was not denying all recourse as the Plaintiffs would be able to pursue any issues leftover from U.S. EPA's completed actions.
Contact: Peter Felitti, Office of Regional Counsel, 312-886-5114
Plant Manager Sentenced on Clean Water Act (CWA) Charges.
On October 6, 2008, Martin Wayne Meister was sentenced to serve 2 years on probation, perform 150 hours of community service and pay a criminal fine of $2501. Meister was the Plant Manager for Eco Finishing, an electroplating firm located in Fridley, Minnesota. Eco Finishing, its President, Keith David Rosenblum, Meister and another Eco Finishing employee were indicted for CWA violations and tampering with monitoring equipment. The company and one employee pleaded guilty earlier, but Rosenblum and Meister went to trial and were convicted by a federal jury in March 2008. Meister was found guilty on 8 counts of negligent violations of the CWA. Rosenblum was sentenced October 1 to 15 month's imprisonment.
Contact: David M. Taliaferro, Office of Regional Counsel/Criminal Investigation Division, 312-886-0815
Erler Industries Sentenced for Clean Air Crimes.
On October 2, 2008, Erler Industries Inc., was sentenced following its guilty plea to two Clean Air Act felony counts of knowingly submitting false quarterly reports. Erler was ordered to pay a $1,000,000 criminal fine ($500,000 to be suspended if Erler complies with all terms of its probation), as well as pay $25,000 in restitution to the Midwest Environmental Enforcement Association (MEEA) and $100,000 in restitution to the Indiana Department of Environmental Management. In addition the firm must serve one year on probation for one year with the special provisions that it 1) develop an environmental training program for its employees, 2) develop and implement a zero tolerance policy for environmental violations, 3) conduct an environmental audit of its facility, and 4) make a public apology in a local newspaper. Erler owns and operates a paint coatings facility for metal and plastic parts in North Vernon, Indiana which emits volatile organic compounds (VOC). In 2003 and 2004, Erler falsely reported its VOC emissions to appear to have stayed within the required emissions limitations on each plant.
Contact: Crissy Pellegrin, 312-353-5263 or David Taliaferro, 312-886-0815, Office of Regional Counsel/Criminal Investigation Division
United States Environmental Protection Agency (U.S. EPA) issues compliance order for dairy feed operation.
On September 30, 2008, U.S. EPA issued to Rich-Lane Farms an Administrative Order for Compliance (Order) pursuant to Sections 308 and 309 of the Clean Water Act. Rich-Lane Farms operates a medium size Concentrated Animal Feeding Operation (CAFO). On May 7 and 8, 2008, U.S. EPA inspected the CAFO and noted that Rich-Lane Farms was discharging a pollutant, process wastewater, to waters of the United States without a permit. The U.S. EPA also noted that Rich-Lane Farms did not divert clean storm water from entering the production area. Under the terms of the Order, Rich-Lane Farms is required to cease all unauthorized discharges by implementing interim measures, submit a plan for a storm water diversion system, perform weekly inspections of the CAFO (performing such routine maintenance as needed) and maintain records to demonstrate compliance with the Order. The Order allows Rich-Lane Farms to request an informal conference with EPA within 10 business days of its receipt of the Order to discuss the terms and conditions of the Order.
Contact: Peter Felitti, Office of Regional Counsel, 312-886-5114
United States Environmental Protection Agency, Region 5 Resolves Lead Disclosure Rule Case Against Simmons Rental Properties, Inc. (Southfield, Michigan).
On August 21, 2008, the Regional Administrator signed a Consent Agreement and Final Order (CAFO) in which Simmons Rental Properties, Inc. (Simmons), agreed to pay a penalty of $539 and perform a supplemental environmental project (SEP) for violations of the "Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards Upon Sale or Lease of Residential Property" (Disclosure Rule), 40 C.F.R. Part 745, Subpart F, and Section 409 of Toxic Substances Control Act (TSCA), 15U.S.C. §2689, at three of its properties in Detroit, Michigan. Specifically, Region 5 alleged that Simmons had failed to include, as an attachment to one sales contract and either within or as an attachment to two lease contracts, certain information required by 40 C.F.R. § 745.113(a) [sale] and (b) [leases]. In performance of the SEP, Simmons will mitigate all sources of lead identified through lead inspections and replace 12 windows at two of its rental properties. The total cost of the SEP is $7,420. Based on EPA's Section 1018 - Disclosure Rule Enforcement Response and Penalty Policy, the nature, circumstances, extent, and gravity of the violations, and, with respect to the violator, ability to pay, effect on ability to continue to do business, any history of prior TSCA violations, the degree of culpability, and such other matters as justice may require, and Simmons' agreement to perform a SEP, EPA determined that it is appropriate to settle this matter for $539. The parties agreed that settling the matter, without further litigation, was in the public interest. The CAFO became effective on August 25, 2008.
Contacts: Ann Coyle, Office of Regional Counsel, 312-886-2248 or Joana Bezerra, secondary contact, 312-886-6004
United States Environmental Protection Agency (EPA), Region 5 Issues Clean Air Act (CAA) Operating Permit to Veolia Environmental Services.
On September 12, 2008, Region 5 issued to Veolia Environmental Services' Sauget, Illinois facility an operating permit under Title V of the CAA. The Veolia facility is a hazardous waste combustor which is subject to the requirements of the National Emission Standards for Hazardous Air Pollutants from Hazardous Waste Combustors, 40 C.F.R. part 63, subpart EEE (HWC MACT). Among other things, the permit contains operating parameter limits to ensure compliance with some of the emissions limits contained in the HWC MACT, and a compliance schedule that requires Veolia to perform compliance tests at its three combustion units and establish and submit to EPA by October 10, 2008, operating parameter limits for mercury, low-volatile metals and semi-volatile metals.
The state of Illinois had proposed to issue a Title V operating permit to Veolia, then known as Onyx Environmental Services. After receiving petitions to object to the proposed permit from environmental groups and the Illinois Attorney General, Region 5 objected to several aspects of the state permit. Region 5 took over as Title V permitting authority after the state of Illinois failed to issue timely a permit that addressed the Region's objections.
Contacts: Jane Woolums, Office of Regional Counsel, 312-886-6720; Genevieve Damico, Air & Radiation Division, 312-353-4761
United States Environmental Protection Agency (U.S. EPA), Region 5 files Resource Conservation and Recovery Act (RCRA) Consent Order concerning Mueller Brass Company.
On September 30, 2008, U.S. EPA filed a Consent Agreement and Final Order (CAFO) under 40 C.F.R. Part 22 against Mueller Brass Company (Mueller). In the CAFO, U.S. EPA alleges that Mueller violated Michigan's approved RCRA regulations at its facility in Port Huron, Michigan. Violations alleged in the CAFO include: storage of hazardous waste without a permit; failure to conduct tank integrity assessments; failure to conduct daily tank inspections; and failure to have a leak detection system. Mueller will perform RCRA closure of the unpermitted storage tank and has otherwise returned to compliance with the requirements of RCRA.
In the CAFO, Mueller agrees to pay a penalty of $110,000.00. As a Supplemental Environmental Project (SEP), Mueller also agrees to spend at least $555,000 to design and install an enhanced wastewater treatment and recycling system at the facility. Through use of this recycling system, Mueller will capture approximately 90% of the metals that would otherwise be discharged to the sewer. Mueller will then ship those metals off-site for recycling. In addition, the system will allow Mueller to reuse process wastewaters which previously have been discharged to the sewer. This will allow Mueller to recycle approximately 22 million gallons of wastewater per year and to reduce city water purchases by that amount.
Contacts: Chuck Mikalian, Office of Regional Counsel, 312-886-2242; Mike Beedle, secondary contact, 312-353-7922
Record of Decision Issued Establishing Remedy for Operable Unit 3 (Middle Fork Little Beaver Creek and Feeder Creek) of the Nease Chemical Superfund Site, Columbiana County, Ohio
On September 29, 2005, United States Environmental Protection Agency (U.S. EPA), Region 5 issued a Record of Decision establishing a remedy for sediment and floodplain contamination at the Nease Chemical Superfund Site in Columbiana County, Ohio. The site is on Route 14, 2.5 miles northwest of Salem on the Columbiana-Mahoning county line. Between 1961 and 1973, Nease Chemical produced household cleaning products, fire retardants and pesticides at the site, and left behind significant hazardous substances including mirex. Extensive mirex contamination migrated off the former plant area through Feeder Creek to the Middle Fork Little Beaver Creek The remedy chosen in the Record of Decision is expected to cost approximately $3.77 million and includes:
- Removal of the most contaminated sediment in the Middle Fork of Little Beaver Creek;
- Removal of Feeder Creek sediment;
- Removal of the most contaminated floodplain surface soil.
Previously, in September 2005, U.S. EPA issued a Record of Decision for Operable Unit 2 of the Nease Chemical Site, which comprised of the site's source areas and groundwater contamination. Next steps for the Nease Chemical Site include negotiation of a consent decree with Rutgers Organics Company, the current owner of the site, to conduct a Remedial Design/Remedial Action for the site based on the selected remedy.
Contacts: Mark Palermo, Office of Regional Counsel, 312-886-6082; Mary Logan: 312- 886-4699
Region 5 Signs Consent Agreement and Final Order with White Sanitation Service, Inc.
On September 30, 2008, Region 5 and White Sanitation Service, Inc. (White Sanitation) entered into a Consent Agreement and Final Order (CAFO) settling an action for Clean Water Act (CWA) violations before the filing of a complaint. White Sanitation operates a business in Staunton, Illinois that includes the collection and disposal of domestic septage. The CAFO requires White Sanitation to pay a penalty of $35,000 for violations of the Standards for the Use and Disposal of Sewage Sludge at 40 C.F.R. Part 503. More specifically, White Sanitation failed to comply with the vector attraction reduction, pathogen reduction, agronomic application rate and recordkeeping requirements at 40 C.F.R. Part 503. White Sanitation has ceased land application of domestic septage as of December 31, 2007.
Contacts: Christine Liszewski, Office of Regional Counsel, 312-886-4670; Valdis Aistars, additional contact 312-886-0264
Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Kester, Inc. in Des Plaines, Illinois
Region 5 initiated prefiling discussions on this matter in June 2008. On October 6, 2008, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with Kester, Inc., to settle violations of Section 313 of Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. Section 11023. Specifically, Kester, Inc., failed to submit Form Rs to the Administrator and to Illinois for tetrachlroethylene, zinc compounds, sec-butyl alcohol and methanol for calendar year 2003. During settlement discussions, Kester, Inc., agreed to pay a civil penalty of $56,998.
Contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; Terence Bonace, additional contact 312-886-6233
Region 5 signs Consent Agreement and Final Order (CAFO) with Vesuvius USA Corporation
Region 5 filed a CAFO on September 26, 2008 (Docket Number CAA-05-2008-0040) under Section 113 of the Clean Air Act (CAA) against Vesuvius USA Corporation in Charleston, Illinois. This CAFO resolves violations of the CAA=s regulations regarding industrial refrigeration equipment and an excess leak of Class II refrigerant in one of the units at this facility that manufactures ceramic parts for the iron and steel industry. Vesuvius violated several regulations at its facility including failing to detect an excessive leak of a Class II refrigerant, failing to repair the leak, and failing to develop and implement a plan to retrofit or retire the leaking unit within one year [See Subpart F regulations at 40 CFR '82.156(i)]. The CAFO requires Vesuvius to pay a $25,000 penalty and implement a supplemental environmental project (SEP). The SEP requires Vesuvius to install a Regenerative Thermal Oxider at a cost of $215,000 that will use less energy and reduce greenhouse gas emissions (carbon) by 236 tons per year. This SEP will also reduce all volatile organic compound emissions.
Contact: Susan Prout, Office of Regional Counsel, 312-353-1029
Environmental Appeals Board (EAB) Issues Order Denying Review of an Underground Injection Control (UIC) Well Permit Issued by the United States Environmental Protection Agency, Region 5, to the Beeland Group.
On October 3, 2008, the EAB issued an order denying review of the Region 5 under UIC permit issued to the Beeland Group, LLC. In denying review, Judges Reich, Stein and Wolgast considered and rejected seven arguments that the Region's permit decision was deficient.
On February 9, 2008, Region 5 issued a UIC permit to the Beeland Group, LLC pursuant to Part C of the Safe Drinking Water Act. This permit authorizes Beeland to construct and operate a Class I non-hazardous injection well near Alba, in Antrim County, Michigan. Beeland proposed injecting a daily average of 135,000 gallons of wastewater, ranging in pH level from 7.0 to 10.0, into a formation approximately 2150 feet below the surface. The top of injection formation, which is covered by a 100 foot thick confining zone, is approximately 1250 feet below the bottom of the lowermost underground source of drinking water. The source of wastewater for the Beeland injection well is surface runoff and leachate seeps collected near piles of cement kiln dust (CKD) at an on-going cleanup of a former cement facility at Bay Harbor, Michigan, along Little Traverse Bay. On March 11, 2008, Star Township, Antrim County and Friends of the Jordan River (together "FJR") filed with the EAB a petition for review of the Region 5 permit. A newspaper has reported that the Beeland Group may save approximately $5 million per year by replacing the current wastewater disposal practice with the Beeland injection well.
Contacts: Stuart Hersh, Office of Regional Counsel, 312-886-6235; or William Bates, Water Division, 312-886-6110
Week of October 13, 2008
United States Lodges Cost Recovery Consent Decree with Livingston and Company for the United Scrap Lead Site; Troy, Ohio.
On September 25, 2008, the United States lodged a proposed cost recovery Consent Decree in U.S. v. A-L Processors et al., No. 3:91-cv-00309-WHR, for the United Scrap Lead Site in Troy, Ohio. Under this Consent Decree, Livingston and Company, Inc. will pay the United States a total of $1,609,732 in response costs incurred by United States Environmental Protection Agency at the Site. Additionally, the Respondent Group, which performed the remedial design/remedial action at the Site, and which has a contribution cause of action against Livingston, will recover $290,268. This recovery by the Respondent Group is also based upon a cost recovery sharing agreement between the Group and the United States. The Consent Decree resulted from a detailed examination of Livingston's ability to pay.
Livingston will make payments under the Consent Decree to the United States and the Respondent Group over three years. All installments will carry interest at the Superfund interest rate. Livingston will pay a total of $1.9 million, plus interest, in settlement of its liability at the Site. This Consent Decree resolves both the liability of Livingston and Company, and Roger and Larry Livingston (Livingston Brothers), the principals of the corporation, individually. Payments under this settlement agreement will be made by Livingston and Company. The Livingston Brothers have given the United States and the Respondent Group a payment guaranty of all payments owed by the corporation under the Consent Decree. If these payments are not made when due by the corporation, each of the Livingston Brothers becomes jointly and severally liable (together with the corporation), for the payments, along with interest and stipulated penalties.
The Consent Decree is subject to a 30-day public comment period, which began on
October 8, 2008, with publication of a notice in the Federal Register.
Contact: Sherry Estes, 312-886-7164 or Deborah Garber, 312-886-6610, Office of Regional Counsel
United States Environmental Protection Agency (U.S. EPA) v. Heser Brothers.
On October 10, 2008, Administrative Law Judge (ALJ) Moran issued a Recommended Decision denying Heser Brothers' Application for Fees under the Equal Access to Justice Act, 5 U.S.C. § 504 (2006) (EAJA) in the U.S. EPA v. Heser Brothers case brought under Section 309(g) of the Clean Water Act (CWA). This CWA Section 404 case involved Rapanos issues but was decided based on the 5-year statute of limitations (SOL) found at 28 U.S.C. § 2462. The illegal discharge occurred in September of 1999 but was discovered via Corps of Engineers (COE) field inspection in February of 2000. After lengthy investigations, the case was referred to Region 5 Office of Regional Counsel (ORC) in November of 2005, over 5 years after the discharge but less than 5 years from the arguable discovery of the violation. Confronted with this case ORC decided to proceed based on the continuing violation and discovery rule exceptions to the 5-year SOL. Thereafter, the complaint was filed within 5 years of the February 2000 date (taking into account tolling agreements which were negotiated with Heser Brothers'). The case proceeded to hearing and post hearing briefs initially focused on the SOL issue. In its briefs, the Region argued both the continuing violation and discovery of violation exceptions to the 5 year SOL rule.
On December 19, 2007, ALJ Moran issued an Order of Dismissal holding that the general 5-year SOL in 28 U.S.C. § 2462 barred the Region 5 administrative penalty complaint for the alleged wetlands fill violations. In his dismissal order in In re Robert and Andrew Heser, Docket No. CWA-05-2006-0002, ALJ Moran noted the general rule that SOLs begin to run when the claim first accrues and then rejected the Region's argument that the running of the SOL should be tolled under the discovery rule or the continuing violations theory. With regard to the discovery rule, the court adopted the 3M case in ruling that the discovery rule exception does not apply to the Section 2462 SOL. Although the 3M decision was a Toxic Substances Control Act (TSCA) case, the court states that there is nothing in the court's reasoning which would limit its rationale to TSCA matters alone. Alternatively, apart from the reasoning in 3M, even if a "date of discovery" test were applied here, the court stated that a citizen complaint regarding activity in a farm field started the SOL clock as opposed to when the COE was inspected the site 5 months later to determine the existence of a wetland. The opinion also adopts the reasoning of the Telluride decision, which rejected the continuing violation theory in favor of requiring new or continuing additions of pollutants to keep the SOL clock from running.
On January 16, 2008, the Heser Brothers' filed an Application for Fees and Expenses under EAJA, seeking legal fees and costs of $255,277.53. On February 29, 2008, the Region chose not to pursue an appeal of the Dismissal Order before the U.S. EPA's Environmental Appeals Board. On March 7, 2008, the Hesers filed a Supplemental Application under EAJA seeking an additional $15,728.31 in fees and expenses, making the total amount requested by Heser Brothers' $271,005.84. The Region filed its brief in opposition on April 7, 2008.
October 10, 2008, ALJ Moran issued a Recommended Decision in the EAJA matter denying the Hesers' application for legal fees under EAJA. In the opinion, ALJ Moran ruled that U.S. EPA's interpretation as to the applicability of the continuing violation doctrine was substantially justified. In support, he states that case law concerning the continuing violation doctrine was not so clear that the Agency could have predicted the outcome of the SOL issue. Further, the court accepted the Region's position that the Telluride and 3M SOL cases do operate to preclude U.S. EPA's ability to argue that the continuing violation theory is viable in the context of application of statute of limitations. As a result, ALJ Moran found "without hesitation" that U.S. EPA's position was reasonable and substantially justified and recommended denial of the Heser Brothers' Application for fees.
Contact: Thomas J. Martin, Office of Regional Counsel, 312-886-4273
Week of October 20, 2008
United States Environmental Protection Agency (U.S. EPA), Region 5 resolves Clean Air Act (CAA) violations alleged against Michigan Sugar Company, located in Bay City, Michigan
On October 16, 2008, the Untied States District Court for the Eastern District of Michigan entered a Consent Decree which resolves CAA violations alleged against Michigan Sugar Company (MSC), located in Bay City, Michigan.
The U.S. EPA alleged that MSC violated Prevention of Significant Deterioration (PSD) and New Source Review (NSR) requirements of the CAA. The Consent Decree requires MSC to pay a civil penalty of $210,000. MSC must also implement injunctive relief at the Bay City Facility with an estimated cost of at least $13 million. MSC will among other things, operate and maintain a Steam Dryer, which will phase out three pulp dryers over a fixed period of time and will reduce volatile organic compounds (VOC) and carbon monoxide (CO) emissions to nominal amounts. This innovative technology will reduce VOC emissions by approximately 446 tons per year.
Contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; Sara Breneman, Air and Radiation Division, 312-886-0243
Region 5 enters into Consent Agreement and Final Order (CAFO) with Domtar Industries, Inc. (Domtar), Port Edwards, Wisconsin to resolve violations of the Clean Air Act regarding the Pulp and Paper National Emissions Standards for Hazardous Air Pollutants (NESHAP).
On October 23, 2008, Region 5 and Domtar entered into a CAFO commencing and concluding an administrative penalty action with Domtar, to address alleged violations of the Pulp and Paper NESHAP at its Port Edwards, Wisconsin sulfite process paper mill. Testing information obtained by EPA shows that the mill exceeded a 2.2 lbs/ton oven-dried pulp emission limitation for methanol. The mill closed in June 2008 before a return to compliance could be achieved and verified. Under the CAFO, Domtar has agreed to pay a civil penalty of $90,000.
Contact: Mark J. Palermo, Office of Regional Counsel, 312-886-6082
Week of October 27, 2008
Executives of Michigan Business Convicted of Environmental Crimes for Untreated Wastewater Discharges.
On October 21, 2008, a federal jury in Detroit, Michigan convicted three former managers of Comprehensive Environmental Solutions, Inc. (CESI) of environmental crimes following a three week jury trial before U.S. District Judge Victoria A. Roberts. CESI is a company that operates an industrial waste treatment and disposal facility in Dearborn, Michigan. Michael Panyard, the former general manager of the company, was convicted of nine felony counts, including one conspiracy count, two counts of violating the Clean Water Act (CWA) and six counts of making false statements in connection with illegal discharges of millions of gallons of untreated liquid wastes from the facility. Charles Long, a former plant manager, was convicted of two felonies, including conspiracy and a CWA violation. Bryan Mallindine, the former chief executive officer, was convicted of one count of negligently bypassing the facility's required pretreatment system, a misdemeanor violation of the CWA. Evidence at trial showed that during the period of January 2001 to June 2002, facility employees routinely bypassed the facility's treatment system in order to discharge untreated liquid wastes directly into the sanitary sewer system. During most of this time, the facility had no operable equipment to treat incoming liquid wastes and its 10 million gallon tank farm was full. Evidence at trial showed that company employees discharged approximately 13 million gallons of untreated liquid waste into the sanitary sewer in violation of the CWA. Company employees also took steps to conceal the lack of treatment from customers and regulatory officials, including Detroit Water and Sewerage Department personnel, through false statements andtampering with legally required compliance samples. An additional plant manager pleaded guilty earlier this year to violating the CWA and has not yet been sentenced. On September 4, 2008, CESI pleaded guilty to related charges and agreed to pay a fine of $600,000 plus an additional $150,000 to fund a community service project for the benefit, preservation and restoration of the environment and ecosystems in the waters adjoining the Rouge River and the Detroit River. In addition to accepting responsibility today for its past misconduct, CESI, which is under new management, has taken a number of steps during the last several years to install new equipment and systems to treat liquid industrial waste before it is discharged to the sewer. As a condition of probation, CESI has agreed to abide by the terms of a consent order with the Michigan Department of Environmental Quality for the cleanup of the facility, at an estimated cost of $1.5 million that includes the proper disposal of the liquid waste previously stored in the facility's tank farm.
Contact: David Mucha, Office of Regional Counsel, 312-886-9032
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Administrative Order on Consent (AOC) Signed for Cedar Creek, WI Source Control RD
On September 29, 2008, Region 5 signed a AOC with Mercury Marine, Inc., to design the selected the remedy for the former Mercury Marine plant source control operable unit at the Cedar Creek Superfund Alternative Site in Cedarburg, Wisconsin. Mercury Marine is collaborating with the City of Cedarburg, so that the elements of the remedy can be designed to allow a public library to be constructed at the site directly upon completion of the remedy.
The Cedar Creek Site includes Cedar Creek from the Ruck Pond dam in Cedarburg, to its confluence with the Milwaukee River, and the former Mercury Marine plant. The contaminant of concern is Prevention of Significant Deterioration (PCB)s, which were used at the plant in the 1970's. Plans for the creek and are under development with field work in the creek scheduled for the 2008 work season.
Contact: Richard Nagle, Office of Regional Counsel, 312-353-8222
Vice-President and Company Charged With Making False Statements; UnitedStatesv.Scott A. Forster and General Environmental Management
On October 23, 2008, Scott A. Forster and General Environmental Management (GEM) were charged in a three-count information for making false statements. Mr. Forster was the Vice-President of GEM, an Ohio limited liability company. GEM was an industrial wastewater treatment facility. GEM processed industrial wastewater and discharged the treated wastewater into the Northeast Ohio Regional Sewer District (NEORSD) sewer system which serviced the City of Cleveland and many of the surrounding suburbs.
The information alleges that in 2004 GEM received industrial wastewater from a facility in Columbus, Ohio. All wastewater processed by GEM by must be pre-approved by NEORSD. GEM was not approved to process the wastewater from Columbus. The NEORSD asked about the wastewater from Columbus and was told by Mr. Forster that the wastewater was not processed by GEM. However, Mr. Forster knew that GEM had processed the unapproved wastewater and discharged it into the NEORSD sewer system. The information charges Mr.Forster for making a false statement to NEORSD concerning the processing of the Columbus wastewater.
The information further alleges that some of the industrial wastewater received by GEM was hazardous waste. While GEM was allowed to process hazardous wastewater, it was illegal for GEM to store hazardous wastewater at its facility. Beginning in 2002, GEM began the practice of storing hazardous waste at its facility. The practice ended in July 31, 2005. The information charges that GEM employees falsified documents to make it appear that hazardous waste was not being stored at the GEM facility.
The information also alleges that GEM had a permit from the NEORSD which limits the concentration of pollutants which can be discharged into the sewer system. In addition, GEM is required to regularly report the concentration of pollutants discharged into the sewer system to the NEORSD. Between January 2004, and March 2005, on approximately a weekly basis, employees for GEM discharged wastewater into the sewer system that was above GEM's limit for methyl ethyl ketone, a toxic substance. The information charges that GEM employees sent false information to the NEORSD showing that the wastewater discharged to the sewer system was in compliance with GEM's permit limit, when the wastewater discharged into the sewer system was above the permitted limit for methyl ethyl ketone.
Contact: Brad Beeson, Office of Regional Counsel, 440-250-1761
Plaintiffs file Notice of Appeal of U.S. District Court's Dismissal of Resource Conservation and Recovery Act (RCRA) citizens suits
On October 24, 2008, Plaintiffs, River Village West, L.L.C., River Village, LLC, JS II, LLC and Thomas Snitzer, filed a notice of appeal with the U.S. Court of Appeals for the Seventh Circuit regarding the lower court's dismissal of their RCRA citizen suits. On September 25, 2008, the U.S. District Court for the Northern District of Illinois, Eastern Division (Court), dismissed three RCRA citizen suits. The Court held that the suits were precluded by Section 113(h) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), even though the suits were filed prior to the commencement of the government's action under CERCLA.
The Plaintiffs had filed three RCRA citizen suits, in April 2005, August 2006 and October 2006, against Defendant, Peoples Gas. The suits sought injunctive relief that would require Peoples Gas to abate an alleged imminent and substantial endangerment to health or the environment from eight former manufactured gas plants along the Chicago River. The three suits were consolidated into one action. On June 5, 2007, the United States Environmental Protection Agency (U.S. EPA) signed an Administrative Order on Consent (AOC) with Peoples Gas. Pursuant to the terms of the AOC, Peoples Gas agreed to conduct an engineering evaluation and cost analysis (EE/CA) at eleven former manufactured gas plants and to pay oversight costs incurred by the U.S. EPA. Following the completion of the EE/CA, a final cleanup determination will be made for each site by U.S. EPA, in consultation with Illinois EPA, the City of Chicago and area residents. The eight sites that were the subject of Plaintiffs' lawsuits were among the eleven sites covered by the AOC.
In July 2007, Peoples Gas moved to dismiss the RCRA citizen suits arguing that the suits were barred by Section 113(h) of CERCLA, which precludes a challenge to a removal or remedial action selected by U.S. EPA. The Plaintiffs argued that Section 113(h) did not apply to citizen suits filed before the commencement of a government action/order. In September 2007, the Court stayed the RCRA litigation pending the conclusion of U.S. EPA's actions. The Plaintiffs moved for reconsideration of the stay and the Defendant again moved for dismissal of the suits.
In its September 2008 ruling, the Court found that the timing argument was a case of first impression. The Court held that Section 113(h) of CERCLA makes no reference to the timing issue of when a citizen suit is filed but speaks in general terms of the inability of federal courts to hear challenges to removal or remedial actions. Therefore, the Court found that Section 113(h) precludes any challenge to a removal or remedial action, regardless if a citizen suit was filed prior to an AOC being entered. The Court then concluded that Plaintiffs' litigation was a challenge for the purposes of Section 113(h). The Court found that allowing the Plaintiffs' litigation to go forward would constitute a review of Section 106(a) of CERCLA, which was the statutory basis of the AOC between Peoples Gas and U.S. EPA. The Court believed that in light of the ongoing action by U.S. EPA, it was U.S. EPA, not the Court, that was best equipped to deal with the alleged hazard in question. Lastly, the Court held that by dismissing the Plaintiffs' cases, it was not denying all recourse as the Plaintiffs would be able to pursue any issues leftover from U.S. EPA's completed actions.
Contact: Peter Felitti, Office of Regional Counsel, 312-886-5114
Great Lakes Legacy Act Agreement Amendment Signed for West Branch of the Grand Calumet River, Hammond, Indiana.
On October 6, 2008, the Great Lakes National Program Office (GLNPO) and the Indiana Department of Environmental Management (IDEM) and the Indiana Department of Natural Resources (IDNR) signed an amendment to the Project Agreement under the Great Lakes Legacy Act (GLLA) for the West Branch of the Grand Calumet River near Hammond, Indiana. The amendment increases the authorized expenditures under the agreement for sediment remediation to $33 million. As required under GLLA, the local sponsors will provide 35% of the resources for the project.
The West Branch of the Grand Calumet River is located in Northwest Indiana and runs from East Chicago, Indiana, through Hammond, Indiana, and then into Illinois. This stretch of river runs through predominantly commercial and industrial areas. The sediments that will be addressed are contaminated with heavy metals, PCB Aroclors, SVOCs (primarily PAHs), and pesticides (e.g., DDT and degradation products). Remediation of contaminated sediment between Columbia Avenue and Hohman Avenue will effectively restore approximately 1/4th of this portion of the river.
Contact: Richard Nagle, Office of Regional Counsel, 312-353-8222
Region 5 approves Four Tribes for Treatment in the Same Manner as a State for purposes of Section 319 of the Clean Water Act (CWA)
During September, 2008, Region 5 approved the application of four tribes for treatment in the same manner as a state for the purpose of receiving grants under the CWA's section 319 non-point source program. At the same time, the Region approved the assessment report and management program for each tribe. The tribes were: Red Lake Band of Chippewa Indians (Minnesota); Sokaogon Chippewa Community (Wisconsin); Lac du Flambeau Band of Lake Superior Chippewa Indians (Wisconsin); and Red Cliff Band of Lake Superior Chippewa Indians (Wisconsin).
Section 319 of the CWA is a statutory scheme for controlling nonpoint sources of pollution affecting water resources. Each state must prepare and submit to Environmental Protection Agency (EPA) for approval an assessment report and a management program which outlines the measures proposed to be undertaken to control nonpoint source pollution. (Section 319(a) and (b) of the CWA, 33 U.S.C. § 1329(a) and (b)). A state which has an approved report and management plan is eligible for grants to assist in implementing the management program. (Section 319(h) of the CWA, 33 U.S.C. § 1329(h)). Section 518 of the CWA, 33 U.S.C. § 1377(e) authorizes the Administrator to treat an Indian tribe in the same manner as a state for purposes, inter alia, of Section 319 of the CWA.
The four tribes have carried out water programs within their reservations for many years. The Region determined that each tribe met the statutory criteria for treatment in the same manner of state. In addition, the Region reviewed and approved the assessment report and management plan which each tribe had submitted. Each of these tribes will now be eligible to receive grants from EPA to carry out the activities identified in the approved management program. There are now 10 tribes in Region 5 eligible for funding under Section 319.
Contacts: Rodger Field, Office of Regional Counsel, 312-353-8243; Dan Cozza, Water Division, 312-886-7252