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November 2008 Significant Cases

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Week of November 3, 2008

United States Environmental Protection Agency (U.S. EPA) issues Unilateral Administrative Order (UAO) for access for removal work in East Sparta, Ohio

On October 31, 2008, U.S. EPA issued a UAO for access to Edna Elliot, the owner of the Site, and Charles Alborn, the operator at the Site. Pursuant to the terms of the UAO, the Respondents are require to grant U.S. EPA access to sample, delineate and address the contaminated drums, containers and slag piles at the Site and not to interfere with U.S. EPA's removal actions at the Site.

Contact: Peter Felitti, Office of Regional Counsel, 312-886-5114

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United States Environmental Protection Agency (U.S. EPA) enters into Administrative Order on Consent (AOC) with Peoples Gas for an RI/FS at four sites in Chicago, Illinois

On October 31, 2008, the U.S. EPA signed an AOC with Peoples Gas. Pursuant to the terms of the AOC, the Respondent agreed to conduct a Remedial Investigation and Feasibility Study (RI/FS) at the four Sites covered by the AOC and to pay oversight costs incurred by the U.S. EPA at each Site. None of the Sites are on the National Priorities List but are considered sites under the Superfund Alternative Site Program. Following the completion of the RI/FS, 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.

This AOC replaces a June 5, 2007 AOC signed by U.S. EPA and Peoples Gas for the Respondent to conduct an engineering evaluation and cost analysis at each property and to pay oversight costs incurred by the U.S. EPA.

Contact: Peter Felitti, Office of Regional Counsel, 312-886-5114

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Two Ability-to-Pay Consent Decrees Entered in IEL Cost Recovery Case

On November 4, 2008, the U.S. District Court for the Northern District of Ohio entered two ability-to-pay consent decrees in connection with the Industrial Excess Landfill Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery case. The settling defendants in the first decree are the current owner/operators of the landfill: Industrial Excess Landfill, Inc., Hybud Equipment Corp., and Hyman Budoff. The decree requires these defendants to pay approximately $200,000 to the United States and $10,000 to the State of Ohio, to record environmental covenants for the Site properties they own, and to put these properties up for sale, with the proceeds going to the United States and the State of Ohio. The settling defendants in the second decree are former owner/operators of the landfill: Charles Kittinger, Merle Kittinger, and Kittinger Trucking Company. The second decree requires these defendants to pay $954 to the United States and $46 to the State of Ohio. With these two decrees, the United States will have reached settlements with all of the defendants named in the cost recovery suit we filed in 1989. Previously, the United States settled with a group of tire companies who are now implementing the remedy, and reached de minimis settlements with two other defendants. All of these settlements are on appeal to the Sixth Circuit, the main issue being the effect of the contribution protection provisions in the decrees in light of the Supreme Court decision in U.S. v. Atlantic Research Corp.

Contact: Timothy Thurlow, Office of Regional Counsel, 312-886-6623

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Week of November 10, 2008

Region 5 enters a Consent Agreement and Final Order concluding an administrative action for violations of CERCLA Section 103 and EPCRA 304 against Birds Eye Foods, Inc. Waseca, Minnesota

On November 3, 2008, Region 5 filed a Consent Agreement and Final Order (CAFO) in which Birds Eye Foods, Inc. (BEF) agreed to pay a penalty of $48,356 for violations of Section 312(a) of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §11022(a), and Section 103(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42U.S.C. §9603(a), alleged in a July 30, 2008 Civil Administrative Complaint against the company. Specifically, in the Complaint, Region 5 alleged that BEF failed to immediately notify the National Response Center and Minnesota State Emergency Response Commission of approximately 700 pounds of ammonia released from its Waseca, Minnesota facility on June 4, 2006. Based on the facts and circumstances of this case with specific reference to United States Environmental Protection Agency's Enforcement Response Policy for Sections 304, 311, and 312 of EPCRA and Section 103 of CERCLA, Region 5 calculated a proposed penalty of $48,356 of which Region 5 assessed a $24,178 penalty for the CERCLA violations and a $24,178 penalty for the EPCRA violations. The parties agreed that settling the matter, without further litigation, was in the public interest.

Contact: Tamara Carnovsky, Office of Regional Counsel, 312-886-2250 and Ruth McNamara, Superfund Divison, 312-353-3193

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Regional Administrator signs Audit Agreements

On November 5, 2008, the Regional Administrator signed agreements with the Michigan Colleges Foundation (MCF) and the Independent Colleges of Indiana, Inc. (ICI). Thirty-four independent colleges and universities are parties to the agreements. The agreements provide that the participating institutions will train staff to become auditors and then send these trained auditors to other participating colleges and universities to perform audits to determine compliance with the Comprehensive Environmental Response, Compensation, and Liability Act, Clean Air Act, Clean Water Act, Safe Drinking Water Act, Federal Insecticide, Fungicide and Rodenticide Act, Resource Conservation and Recovery Act, and the Toxic Substances Control Act. The participating institutions will summarize their findings in a Disclosure Report. They will also submit a Final Report that describes the steps taken to correct the identified violations.

The MCF and ICI approached the Region early in 2008 with the proposal of entering into audit agreements. The Region worked closely with MCF and ICI to determine the scope of the audits and the contents and timing of the Disclosure and Final Reports. The agreements were also closely reviewed by the United States Environmental Protection Agency Headquarters. By entering into the agreements, the Region may control the timing of the disclosures and ensures the quality of the audits and audit reports. By promoting good environmental practices on campus, the audit agreements will reinforce principles of sound environmental stewardship among students and faculty. The expectation is that the students will take these habits of good stewardship with them upon graduation and implement them in their future workplaces.

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

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Week of November 17, 2008

Michigan Business Sentenced for PCB-Related Criminal Offense

On November 14, 2008, a corporation formerly known as Hoskins Manufacturing Company, and now known as HSKM, Inc., was sentenced in United States District Court in Bay City, Michigan for knowingly violating the Toxic Substance Control Act (TSCA). The corporation was placed on probation for one year and ordered to pay $1.7 million in restitution to partially offset Superfund emergency response costs and publish an apology in various periodicals reminding other manufacturers of their obligations to comply with federal environmental laws. The company had previously pleaded guilty to a one count information charging that it knowingly violated the Toxic Substance Control Act by abandoning a non-leaking, Polychlorinated biphenyls (PCB)-containing transformer at its Hamburg facility. Such conduct constitutes improper disposal under the federal TSCA. Hoskins Manufacturing produced specialty nickel-chrome alloys and once had facilities in Mio, Charlevoix and Hamburg, Michigan, and elsewhere. The company went out of business in 2001 and abandoned its Michigan facilities. Hoskins Manufacturing became the focus of a joint criminal investigation by United States Environmental Protection Agency and Michigan Department of Environmental Quality after Superfund emergency response teams responded to the three abandoned manufacturing sites in Michigan in 2003 and 2004.

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

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Week of November 24, 2008

No significant case developments to report

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