February 2009 Significant Cases
Week of February 2, 2009
Region 5 Office of Regional Counsel (ORC) hosts the Chicago Bar Association Environmental Law Committee.
On February 3, Region 5 ORC hosted the monthly meeting of the Chicago Bar Association's Environmental Law Committee. Alan Walts, Associate Regional Counsel and Acting Director, Region 5 Office of Enforcement and Compliance Assurance, gave a one hour presentation on environmental justice. He spoke about the evolution of environmental justice policy at the United States Environmental Protection Agency, strategic planning, and legal issues related to implementation of the policy. The program was well attended by members of the Chicago Bar Association and ORC attorneys.
Contact: Jane Lupton, Office of Regional Counsel, 312-886-2238
Region 5 issues Notice of Noncompliance to Parker-Holsman Co., Chicago, Illinois.
On January 27, 2009, Region 5 issued a Notice of Noncompliance (NON) to Parker-Holsman Co., for four minor violations of the Real Estate Notification and Disclosure Rule that is codified at 40 C.F.R. Part 745, Subpart F (Disclosure Rule), and the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. §§ 4851 et seq. Based upon a March 28, 2006, inspection, United States Environmental Protection Agency (U.S. EPA) issued a Notice of Intent to File a Civil Administrative Action letter to Parker-Holsman on June 26, 2008, indicating that U.S. EPA had identified and prepared to pursue enforcement regarding 42 violations of the Disclosure Rule. However, as a result of additional information provided by Parker-Holsman, including affidavits of tenants, U.S. EPA concluded that Parker-Holsman substantially complied with Disclosure Rule. Following the guidance of the Section 1018 - Disclosure Rule Enforcement Response Policy, U.S. EPA determined that issuance of the NON was the most appropriate response for this case. The NON also recommended that Parker-Holsman modify its current lease form so that it will more easily demonstrate its future compliance with the Disclosure Rule.
Contact: Mony Chabria, Office of Regional Counsel, 312-886-6842
Illinois Chemical Manufacturer and Two Officials Sentenced For 16-Year History of Sewer Dumping
James E. Spain, 70, former president of Crown Chemical Inc., Crestwood, IL, was sentenced February 4, 2009 in federal court in Chicago, following his guilty plea to illegally dumping chemical wastes into the regional sewer system from 1985 until 2001. Mr. Spain was fined $30,000 and required to spend 3 years on probation, the first year of which must be in home confinement. Crown Chemical Inc., was fined $100,000, required to spend 1 year on probation and to make a public apology. On February 5, 2009 co-defendant and current Crown manager Catalino Uy was fined $5,000 and required to serve 3 years on probation.
As a part of his guilty plea, Mr. Spain admitted that he showed employees how to discharge the untreated wastewater to the local sewers, that he directed employees to use a hose to try to dilute the discharges, that, during the execution of a criminal warrant, he lied to federal investigators and told several employees to falsely tell investigators that Crown treated all wastewater before it was discharged. The case was prosecuted by Assistant United States Attorney Tim Chapman.
Contact: David Taliaferro, Office of Regional Counsel - Criminal Investigation Division, 312-886-6827
United States Environmental Protection Agency (U.S. EPA) Region 5 Enters into a Consent Agreement and Final Order (CAFO) Resolving Violations of Section 103 of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Section 304 of Emergency Planning & Community Right-to-Know Act (EPCRA) by Ceres Solution, LLP f/k/a Growers LLC d/b/a Growers Co-op, Vincennes, Indiana.
On January 29, 2009, the Regional Administrator, U.S. EPA Region 5, signed a CAFO commencing and concluding a matter under CERCLA Section 103 and EPCRA Section 304 pursuant to which Ceres Solution, LLP f/k/a Growers LLC d/b/a Growers Co-op (Ceres Solutions) agrees to pay a civil penalty of $65,520. The CAFO was filed with the Regional Hearing Clerk on February 6, 2009. The CAFO alleges violations of CERCLA Section 103 and EPCRA Section 304 based on Ceres Solutions' failure to promptly notify the National Response Center (NRC), State Emergency Response Commission (SERC), and Local Emergency Planning Commission (LEPC) of a release of approximately 4,000 pounds of ammonia. The CAFO further alleges that Ceres Solutions failed to timely submit written follow-up notices to the SERC and LEPC. The initial penalty calculation provided in U.S. EPA's October 1, 2008 Pre-Filing Notice Letter was $129,738. For settlement purposes, this number was mitigated down to $65,520 based on good faith, quick settlement, and other matters as justice may require, which includes Ceres Solutions' installation of fencing and a security camera at a cost of approximately $30,000. Pursuant to the CAFO, Ceres Solutions 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
Regional Administrator signs Final Order ratifying terms of Consent Agreement and Final Order with S.C. Johnson & Sons, Inc. (S.C. Johnson) resolving Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) violations.
On February 4, 2009, the Regional Administrator signed a Final Order ratifying the terms of a Consent Agreement and Final Order entered into by the Director of the Land and Chemicals Division. S.C. Johnson has agreed to implement and submit to the United States Environmental Protection Agency (EPA) a Compliance Plan with the goal of reducing or eliminating violations of Section 12(a)(2)(N) of FIFRA. The Final Order directs S.C. Johnson to pay a civil penalty in the amount of Fifteen Thousand Six Hundred ($15,600) dollars. EPA Region 5 had calculated an initial penalty of $26,000. It agreed to reduce the penalty by 40% because S.C. Johnson had self-disclosed the violations. EPA Region 5 did not mitigate the penalty amount by 100% because the violations were not discovered as part of a systematic audit or through the use of a comprehensive environmental management system, and appeared to evidence a pattern of non-compliance.
S.C. Johnson manufactures and distributes a large array of pesticides, pesticidal devices and pesticide products. Subsidiaries from around the world periodically ship small quantities of pesticides to the company headquarters in Racine, Wisconsin, for analysis. Sections 17( c) and (e) of FIFRA required S.C. Johnson to file a report (a NOA) for the import shipment of these pesticides, a pesticidal device, and a pesticide product. S.C. Johnson failed to file the required NOAs in connection with the importation of four products in 2006 and 2007. These failures continued a pattern of non-compliance that includes 7 prior self-disclosed violations within the past 3 years. "Post Notification" forms were subsequently filed with EPA and S.C. Johnson self-disclosed the violations.
Contact: Steven P. Kaiser, Office of Regional Counsel, 312-353-3804
Comprehensive Environmental Recovery, Compensation, and Liability Act Consent Decree Entered for the Wauconda Sand & Gravel Landfill Site
On February 5, 2009, the U.S. District Court for the Northern District of Illinois, Eastern Division, entered a Remedial Action and Cost Recovery Consent Decree between the United States Environmental Protection Agency (EPA) and a number of potentially responsible parties at the Wauconda Sand & Gravel Landfill Site in Wauconda, Lake County, Illinois. (U.S. v. BFI Waste Systems of North America, Inc., et al., Case No. 07-c-4499.) The Consent Decree requires the Settling Defendants to reimburse EPA a portion of its past response costs and pay for EPA's future response and oversight costs. In addition, the Settling Defendants are required to complete a municipal water connection project for approximately 400 residences, continue operation and maintenance of the landfill, which is on the National Priorities List, conduct groundwater monitoring outside of the landfill boundary, and conduct a hydrogeologic investigation to help track groundwater flow outside of the landfill boundary. Operation and maintenance of the remedy for the Site is to continue for a minimum of fifteen years under the Consent Decree. For the Settling Defendants, this Consent Decree supplants all other obligations imposed by earlier administrative orders and a Consent Decree entered in 1994.
Contact: Mark Koller, Office of the Regional Counsel, 312-353-2591
United States Environmental Protection Agency, Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Madison Electronics, Inc. (Madison) in Versailles, Indiana
Region 5 initiated prefiling discussions on this matter on September 2008. On February 6, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with Madison to settle violations of Section 313 of Emergency Planning & Community Right-to-Know Act, 42 U.S.C. Section 11023. Specifically, Madison failed to a submit Form R to the Administrator and to Indiana for lead for calendar year 2005. During settlement discussions, Madison claimed that they were unable to pay the penalty demand of $6,180. An ability to pay analysis was completed by Region 5's Comptroller Branch on this matter. Based on Madison's inability to pay the total penalty, the parties have agreed that Madison will pay a civil penalty of $400 to resolve this matter.
Primary contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; additional contact: Robert Allen, Land and Chemicals Division, 312-353-5871
Regional Administrator signs Final Order ratifying terms of Consent Agreement and Final Order with Fox Valley Systems, Inc., (Fox Valley) resolving Emergency Planning and Community Right To Know Act (EPCRA) violations for tardy filing of Toxic Release Inventory Forms
On February 6, 2009, the Regional Administrator signed a Final Order ratifying the terms of a Consent Agreement and Final Order entered into by the Director of the Land and Chemicals Division. The Final Order directs Fox Valley to pay a civil penalty in the amount of Sixteen Thousand And Sixteen ($16,016.00) dollars, a penalty amount equal to 25.6 percent of the amount originally demanded by the Region. The Region agreed to mitigate the penalty in exchange for Fox Valley's performance of a supplemental environmental project described below.
Section 313 of the EPCRA requires certain facilities to file Toxics Release Inventory (TRI) forms. Fox Valley with a facility in Cary, Illinois, failed to file timely a Form R for calendar year 2003 and 2005 to document and report its use of toluene, xylene, and ethylbenzene in amounts in excess of the threshold for reporting. Fox Valley cured the violations in 2006 and did not secure an economic benefit from its non-compliance. Fox Valley has agreed to undertake a supplemental environmental project designed to protect the environment or public health by converting one paint product line that currently uses solvents to a non-solvent, aqueous-based formula.
Contact: Steven P. Kaiser, Office of Regional Counsel, 312-353-3804
Week of February 9, 2009
Region 5 files Consent Agreement and Final Order with Frank Kotouch Jr., d/b/a A & F Rentals
On February 9, 2009, Region 5 and Frank Kotouch Jr., d/b/a A & F Rentals (A & F) entered into a pre-complaint Consent Agreement and Final Order (CAFO) resolving United States Environmental Protection Agency's (EPA) claims alleging that A & F, as lessor of target housing, violated the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4252d et seq., and Section 409 of Toxic Substances Control Act (TSCA), 15 U.S.C. § 2689, and 40 C.F.R. § 745.113(b)(1), (b)(2), (b)(3), (b)(4), (b)(6) in four lease agreements. A & F agrees to pay a civil penalty in the amount of $1,500 and complete a Lead Abatement Worker Course provided by the Mahoning County General Health District that will enable A & F to address lead hazards in his target housing.
Based on the facts and circumstances of this case and consideration of EPA's Section 1018 - Disclosure Rule Enforcement Response and Penalty Policy dated December 2007, Region 5 calculated a proposed penalty of $74,535 for the TSCA violations. After A & F demonstrated that he was unable to pay the proposed penalty, and for other factors as justice may require, the parties agreed to settle this matter, without further litigation, for $1,500 and A & F's completion of a Lead Abatement Worker Course.
Contact: Tamara Carnovsky, Office of Regional Counsel, 312-886-2250 and Scott Cooper, Land and Chemical Division, 312-886-1332
FIFRA Misbranding Case Against Nufarm Americas Inc. Settled With Complaint/CAFO
On February 9, 2009, Region 5 filed a combination Complaint/Consent Agreement and Final Order (CAFO) simultaneously initiating and resolving an administrative compliance action under Section 14(a) of Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136l(a), against Respondent Nufarm Americas Inc. (Nufarm), of Burr Ridge, Illinois, as the registrant for two pesticide products. The Region alleges, in 47 Counts, that Nufarm's agent Topaz Turf Company (Topaz) of Holtsville, New York, distributed and sold misbranded pesticides registered by Nufarm because: claims on the labels of three pesticide products (Tri K 141, Riverdale Triamine Lawn Weed Killer and Riverdale DiBro 2 + 2) claimed a composition of ingredients on their labels that differed substantially from the claim of composition in Nufarm's labels submitted in connection with registration of the products under Section 3 of FIFRA; concentrations of active ingredients in samples of the pesticides varied from the concentrations listed on the labels; and the labels lacked several required warnings.
Section 12(a)(1)(E) of FIFRA, 7 U.S.C. § 136(j)(a)(1)(E), states that it shall be unlawful for any person in any state to distribute or sell to any person any pesticide that is misbranded. Under 40 C.F.R. § 152.132, the distributor is considered an agent of the registrant for all intents and purposes under FIFRA, and both the registrant and the distributor may be held liable for violations pertaining to the distributor product. The determination of violations in this case is based on a September 2005 United States Environmental Protection Agency, Region 2 inspection of the Topaz facility. Region 2 referred the corresponding violations against Nufarm to Region 5 for enforcement.
The Region issued a "pre-filing letter" to Nufarm on January 29, 2008, and held a pre-filing conference to discuss the alleged violations on March 27, 2008. Nufarm provided confirmation that it came into compliance with the cited requirements, and expressed willingness to settle the civil penalty claims without litigation. The parties subsequently agreed to a settlement through this CAFO, including a civil penalty of $262,950. This amount represents 100% of proposed penalty amount for the violations alleged.
Contact: Andre Daugavietis, Office of Regional Counsel, 312-886-6663 or Terry Bonace, Land and Chemicals Division, 312-886-3387
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) AOC Signed for Sheboygan River, WI Lower River RD
On February 10, 2009, Region 5 signed an Administrative Order on Consent (AOC) with Pollution Risk Services, Inc., to design the selected the remedy for the lower river portion of the remedy for the Sheboygan River site in Sheboygan, Wisconsin. Pollution Risk Services will undertake an extensive recharacterization of the lower river and inner harbor areas before producing a final design for the selected remedy. United States Environmental Protection Agency selected dredging of 53,000 cubic yards of sediment from these areas in the 2001 Record of Decision. PRS substantially completed upstream sediment remediation and source control last year.
The Sheboygan River site includes the former Tecumseh Products plant in Sheboygan Falls as well as a 14-mile stretch of the Sheboygan River connecting to Lake Michigan. The contaminant of concern is polychlorinated biphenyls, which were used at the former plant in the 1970's.
Contact: Richard Nagle, Office of Regional Counsel, 312-353-8222
Consent Agreement and Final Order (CAFO) signed regarding Anderson Development Company
On February 10, 2009, Region 5 commenced and concluded an action under Resource Conservation and Recovery Act (RCRA) with the signing of a CAFO under the RCRA Section 3008(a), requiring Respondent Anderson Development Company (ADC) to comply with several conditions required for a hazardous waste storage license exemption. Specifically, United States Environmental Protection Agency had cited ADC for failing to obtain a written assessment for its tank systems, failing to meet tank system requirements and failing to maintain a volatile organic air emission recordkeeping program. ADC also failed to properly label tanks and containers, failed to maintain aisle space, and failed to maintain hazardous waste container requirements. As a result of the Region's action, ADC modified its tank system to meet requirements at a cost of approximately $500,000 and came into compliance with the other conditions for the exemption. The tank systems treated/accumulated over 3 million pounds of hazardous waste (hazardous waste hexane and hexane sludge) in 2007. In the CAFO, ADC agreed to complete two Supplemental Environmental Projects (SEPs) to offset a portion of the $221,200 penalty calculated for the violations. ADC agrees to purchase emergency equipment for the Adrian Fire Department and sponsor two Household Hazardous Waste Collections in the area. The SEPs reduced the penalty $68,100, for a total civil penalty of $153,100.
Contact: Thomas J. Martin, Office of Regional Counsel, 312-886-4273
Sixth Circuit Denies Review of Region 5 Underground Injection Control (UIC) Permit for Carbon Sequestration
The United States Court of Appeals for the Sixth Circuit, in an opinion dated February 12, 2009, denied a petition to set aside a permit authorizing the injection of carbon dioxide in a Michigan test of carbon sequestration technology. On August 23, 2007, Region 5 of the United States Environmental Protection Agency (EPA) issued an UIC permit under Part C the Safe Drinking Water Act, 42 U.S.C. § 300h et seq., to Core Energy, LLC, of Traverse City, Michigan. The permit authorized Core Energy to convert an existing well in an oil and gas field in Otsego County, Michigan, and operate it as an underground injection well for the geologic sequestration of carbon dioxide. Geologic sequestration is an experimental technology with potential to serve as a method to stabilize levels of greenhouse gases in the atmosphere and mitigate climate change. On September 21, 2007, Robert and Joan LeBlanc, the owners of property adjacent to the site of the injection well, appealed Region 5's permit decision to EPA's Environmental Appeals Board (EAB). In that appeal, the LeBlancs' argued that Region 5 had not adequately addressed liability for any possible damages resulting from the injection, and that the permit violated the property rights of adjacent landowners. On December 19, 2007, the EAB denied review of the permit decision in an order that found: 1) the LeBlancs had failed to raise the liability issue during the public comment period and could therefore not raise the issue on appeal; and 2) the Region had rightly determined that property rights issues were beyond the scope of EPA's authority to consider in UIC permit decisions, in which EPA may only consider the impact of the proposed injection on underground sources of drinking water. The LeBlancs then appealed the EAB decision to the 6th Circuit. The court held that the EAB's decision not to review the Region 5 permit was not arbitrary and capricious, nor an abuse of discretion, and that LeBlancs had waived additional arguments raised for the first time in the 6th Circuit appeal.
Primary Contact: Erik Olson, Office of Regional Counsel, 312-886-6829; Secondary Contact: Leslie Patterson, Water Division, 312-886-4904
Region 5 files a combined Administrative Complaint and Consent Agreement with Delphi Automotive Systems LLC in Saginaw, Michigan
On February 13, 2009, Region 5 simultaneously filed an administrative complaint and Consent Agreement and Final Order resolving thirteen violations of Comprehensive Environmental Response, Compensation, and Liability Act Section 103 and Emergency Planning and Community Right-to-Know Act Sections 304, 311 and 312, for Delphi's failure to immediately notify the National Response Center, State Emergency Response Commission (SERC) and Local Emergency Planning Committee (LEPC) of a chlorine release at its facility on June 13, 2007. Delphi also failed to timely submit written follow-up reports to the SERC and LEPC as well as a Material Safety Data Sheet and Emergency and Hazardous Chemical Inventory Form or Tier Form for chlorine to the SERC, LEPC and the local fire department with jurisdiction over the facility. Delphi will pay a penalty of $66,887.
Primary Contact: Joanna Glowacki, Office of Regional Counsel, 312-353-3757; additional contact: James Entzminger, Superfund Division, 312-886-4062
Week of February 16, 2009
Status of United States Environmental Protection Agency (EPA) review of Wisconsin Mercury Effluent Rule
On February 17, 2008, Region 5 issued a letter to the Wisconsin Department of Natural Resources (WDNR) disapproving proposed revisions to Wisconsin's National Pollutant Discharge Elimination System (NPDES) program contained in Wisconsin's mercury effluent regulation at Wis. Admin. Code NR 106.145. The National Wildlife Federation (NWF) had submitted notices of intent to sue in 2006, claiming EPA had failed to review that regulation. Wisconsin submitted the regulation for review under the Clean Water Act on May 30, 2007, in response to a September 21, 2006 request from the Region. Region 5 approved revisions to water quality standards in the rule on August 3, 2007, and the February 17, 2009 letter approves an addendum to the NPDES Memorandum of Agreement reflecting Wisconsin's commitment to apply water quality standard variance revisions consistent with EPA's definition of new dischargers. The February 17, 2008 letter disapproves provisions in the State regulation preventing Wisconsin from conducting a reasonable potential determination and inserting mercury limits in a permit until data is available that contains more than 12 samples over a minimum of 2 years.
Contact: Maria Gonzalez, Office of Regional Counsel, 312-886-6630; Sean Ramach, Water Division, 312-886-5284
Judge issues Opinion and Order in U.S. v. Jupiter Aluminum Corp. (Jupiter)
On February 18, 2009, Judge Simon issued an Opinion and Order in the U.S. v. Jupiter Aluminum Corporation matter which: (1) denied Jupiter's motion to abate the stipulated penalties; (2) denied in part Jupiter's motion to modify the consent decree, withholding judgment on whether Jupiter should be allowed to melt "other than clean" (OTC) scrap prior to installing additional pollution controls until after an evidentiary hearing on this issue; and (3) denied plaintiffs' joint motion to enforce the consent decree and for contempt sanctions to effectuate consent decree compliance. Unless appealed, Jupiter will be required to pay $3,365,000 in stipulated penalties by April 23, 2009, and immediately begin installing the additional pollution controls required by Appendix A to the Consent Decree. The Court scheduled a status hearing for March 24, 2009, to schedule and prepare for the evidentiary hearing on whether to modify the Consent Decree to allow Jupiter to melt OTC.
This case involves enforcement of the Clean Air Act National Emission Standards for Hazardous Air Pollutants 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 in October 2007 that addressed numerous Subpart RRR violations at its secondary aluminum smelter in Hammond, Indiana. Because Jupiter almost immediately began violating the consent decree, the United States demanded stipulated penalties in December 2007. In an effort to renegotiate the terms of 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 Padmavati Bending, Office of Regional Counsel, 312-353-8917
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Consent Decree entered in the Ford Road Landfill Site, Elyria, Lorain County, Ohio
On February 18, 2008, the United States District Court for the District of Northern Ohio, Eastern Division, entered a consent decree to resolve all claims in the Complaint filed under Section 106 and 107 of the CERCLA, as amended, 42 U.S.C. § 9606, 9607. This is the first Superfund Alternative Approach consent decree entered in the Region. The United States in its complaint sought the performance of studies and response work by the defendants at the Ford Road Landfill Site in Elyria, Lorain County, Ohio, and reimbursement of future response costs incurred by United States Environmental Protection Agency in overseeing the performance of studies and response work by the settling defendants. The settling defendants are the Lorain County Metropolitan Park District, Browning -Ferris Industries of Ohio, Inc., Goodrich Corporation, Ford Motor Company, General Motors Corporation, and Chevron Environmental Management Company (for itself and on behalf of Kewanee Industries, Inc.) The estimated cost of the selected remedy for the Ford Road Site is approximately $3.4 million. The selected remedy requires, inter alia, surface cover enhancement, hot spot removal, and imposition of institutional controls and future monitoring that will address contaminated soils/sediments, and groundwater at the site.
Contact: Robert Thompson, Office of Regional Counsel, 312-353-6700
Clean Air Act (CAA) Section 113 Administrative Order Issued Against BASF Facility in Wyandotte, Michigan
On February 18, 2009, the Director of the Air and Radiation Division, Region 5, issued a unilateral Administrative Order under Section 113 of the CAA against BASF for failure to conduct an emissions performance test required by a July 2, 2008, United States Environmental Protection Agency (EPA) Information Request issued pursuant to Section 114 of the CAA. The Information Request requires BASF to conduct emission testing to assess compliance with the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Polyether Polyols Production, 40 C.F.R. Part 63, Subpart PPP. BASF had sought multiple extensions for conducting the test, and right before BASF's last promised date for completing the performance test, December 31, 2008, BASF indicated to EPA that it could not conduct the performance test because it had shut down its polyol process unit indefinitely due to a drop in customer demand. On January 7, 2009, EPA conducted an inspection of the Wyandotte facility and found that the polyol process unit was in full operation. To date, BASF has not conducted the performance test required by the Section 114 Information Request. The February 18, 2009, Administrative Order requires BASF to conduct the performance test within 60 days of receipt of the Order, and provide test results within 90 days of receipt of the Order. The Order is effective 30 days after receipt of the Order, to allow BASF the opportunity to confer with EPA regarding the Order.
Contact: Mark Palermo, Office of Regional Counsel, 312-886-6082; Constantinos Loukeris, Air and Radiation Division, 312-353-6158
District Court dismisses litigation challenging the United States Environmental Protection Agency (EPA) approval of Michigan multiple discharger mercury variance as to EPA, pursuant to Consent Decree
On January 30, 2009, the District Court for the Eastern District of Michigan dismissed with prejudice as to EPA a lawsuit filed by the National Wildlife Federation (NWF) and Lone Tree Counsel in 2006, challenging EPA's approval of Michigan's multiple-discharger mercury variance. This matter was dismissed pursuant to a Consent Decree entered on November 30, 2007, resolving the lawsuit. Among other things, that Consent Decree required Michigan to base its multiple discharger mercury variance on a new agreed upon procedure, if approved by EPA after the state provided opportunity for public comment, or issue permittee-specific variances beginning on October 1, 2008. The Consent Decree provided that it would terminate and NWF's complaint in this case would be dismissed with prejudice with respect to EPA as of that date, although it would not be dismissed against Michigan under October 1, 2009. On September 30, 2008, Region 5 approved Michigan's revised procedure for deriving ‘the level currently achievable (LCA) by the permittee' in the State's multiple discharger water quality standard variance for mercury. The parties filed a joint status report and motion to dismiss as to EPA on December 10, 2008.
Contacts: Maria Gonzalez, Office of Regional Counsel, 312-886-6630; David Pfeifer, Water Division, 312-353-9024
Week of February 23, 2009
Region 5 Executes Consent Agreement and Final Order (CAFO) with Coltène/Whaledent, Inc. and Ultronics, Inc., Resolving Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Pesticide Misbranding and Recordkeeping Violations at its Facility in Cuyahoga Falls, Ohio
On February 24, 2009, the Region filed a CAFO resolving the liability of Coltène/Whaledent, Inc., and its subsidiary Ultronics, Inc., for 3 violations of the prohibition on selling misbranded pesticides under FIFRA and for improper recordkeeping. The settlement requires Coltène/Whaledent and Ultronics to pay a combined cash penalty of $14,960 for 3 counts of selling a misbranded pesticide and another for improper recordkeeping.
Primary Contact: Robert Guenther, Office of Regional Counsel, 312-886-0566; additional contact: Joseph Lukascyk, Land and Chemical Division, 312-886-6223
Demolition Company Owner and Spouse charged with Asbestos and polychlorinated biphenyls (PCB) violations
Scott Tucker, owner and President of H & M Demolition Companies, Inc., was charged February 25, 2009 with four felony violations of the Clean Air Act stemming from the demolition of a wood kiln building in 2005. Jaline Tucker, Mr. Tucker=s spouse, was also charged with two counts. According to the indictment, Scott Tucker ordered employees to demolish a kiln-drying building in Wyoming, Michigan which contained asbestos roof panels. The employees used an excavator to tear down the building, causing the asbestos roof panels to be smashed into small pieces. The debris was not kept wet. State inspectors later notified Jaline Tucker, who worked at H & M Demolition, that much of the debris at the site had become contaminated with asbestos. Scott and Jaline Tucker instructed employees to load up as much debris as they could and take it to a cement recycler which was not authorized to accept asbestos.
On a separate project, Scott Tucker=s firm was paid to properly dispose of PCB transformers from an inactive facility in Holland, Michigan. Scott Tucker directed employees to drain the PCB oil out of the transformers, and then stored the oil in a truck trailer at his property. If convicted, Scott Tucker faces up to 5 years in prison on each of the four asbestos counts with which he is charged, and a fine, as well as up to 1 year in prison and a fine on each of the three PCB counts. Jaline Tucker faces up to 5 years in prison and a fine on each of the two asbestos counts with which she is charged. An indictment is only an accusation, and all defendants are entitled to a fair trial.
Contact: David M. Taliaferro, Office of Regional Counsel - Criminal Investigation Division, 312-886-0815
Ansul Inc., a Division of TYCO, International, agrees to clean-up arsenic contaminated soils, groundwater and sediments at its Marinette, Wisconsin facility.
On February 26, 2009, Ansul, Inc. and the U.S. Environmental Protection Agency agreed to an Administrative Order on Consent under the Resource Conservation and Recovery Act. Ansul will remove approximately 74,000 cubic yards of arsenic-contaminated sediments from the Menominee River; construct an impermeable barrier wall to bedrock around 40 acres of the facility; cap or remove approximately 4.2 acres of surface soils contaminated with arsenic above 16-32 parts per million (ppm); and pump and treat contaminated ground water. Ansul will spend $28 million to complete these actions.
These actions are in addition to other cleanup measures Ansul has taken since 1976 under agreements with EPA and the Wisconsin Department of Natural Resources (WDNR). From 1998-1999, Ansul under an agreement with EPA, spent approximately $12.4 million to dam and remove arsenic-contaminated sediments from the 8th Street Slip and install an impermeable barrier system to bedrock around the 8th Street Slip and an adjacent Salt Vault. From 1976-1984, under an agreement with WDNR, Ansul spent $11 million to pump and treat contaminated ground water and install a ground water interceptor trench at the southern edge of the property.
Contacts: Richard Clarizio, ORC, (312) 886-0559, and Gary Cygan, Water Division, (312) 886-5902
United States District Court Approves Plaintiff's Motion To Enter Consent Decree In U.S. v. Waste Management of Illinois, Inc. No. 08-CV-50094 (N.D. IL)
On February 26, 2009, the district court entered a consent decree (CD) for performance of remedial action and payment of the United States' response costs (the February 26, 2009 CD) in a case involving the contamination of ground water under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The United States and the Defendants (Waste Management of Illinois, Inc., Waste Management of Wisconsin, Inc., and Ecolab, Inc., collectively "Defendants"), who were owner-operators of facilities formerly operating waste disposal areas located above the ground water contamination, negotiated a CD settlement of a complaint to recover past response costs the United States incurred at or in connection with the Evergreen Manor Ground Water Contamination Site (Site) through February 26, 2009; the date of entry for the Consent Decree.
The Site is defined by the ground water contamination of volatile organic compounds including trichloroethene and tetrachloroethane resulting from Defendants' activities. The site is a large, relatively narrow area of low-level ground water contamination in Roscoe Township, Illinois, originating in an industrial area near the intersection of Route 251 and Rockton Road (where Defendants' facilities are located), and extending southwest approximately two miles through the Hononegah Heights, Tresemer, Old Farm and Evergreen Manor subdivisions. After passing under the subdivisions, the ground water flows into the Rock River. The United States Environmental Protection Agency proposed the Site for listing on the National Priorities List on July 27, 1998.
On April 1, 1999, Defendants and a third Potentially Responsible Party (PRP, collectively "Respondents") signed an administrative cashout agreement (the 1999 Administrative Order on Consent) to pay $2.1 million to EPA to fund a Non-Time Critical Removal Action (NTCRA) to connect as many as 281 residences in the subdivisions to the North Park Public Water District. The 1999 Administrative Order on Consent (AOC) was approved by the Department of Justice and provided the settling respondents with a covenant not to sue for all costs associated only with the NTCRA. EPA completed the municipal water hook-up from 1999 to 2000, and permanently sealed the private wells at those homes connected to the municipal water supply.
In 2000, EPA began a federal fund-lead Remedial Investigation/ Feasibility Study (RI/FS) at the Site to determine the nature and extent of ground water contamination and develop cleanup options, if necessary. In 2002 and 2003, EPA conducted additional sampling to investigate whether ground water contaminants were migrating into soil gas and indoor air in the residences sited above the ground water plume. The costs EPA incurred performing these RI activities comprise the majority of the past response costs sought by EPA in its cases against Defendants, and the third PRP. On September 30, 2003, EPA issued the Record of Decision for the Site and sent special notice for Remedial Design/Remedial Action negotiations to the three PRPs who had signed the 1999 AOC. Defendants entered into an AOC for Remedial Design only (the 2004 AOC) on September 29, 2004. The third PRP refused to participate in the negotiations and did not sign the AOC.
The February 26, 2009 CD requires that Defendants implement the Remedial Action (RA) at the Site which Defendants developed from a Remedial Design (RD) performed pursuant to the 2004 AOC; pay $550,000 in past costs; and pay all of U.S. EPA's future oversight costs. The estimated cost of the RA is $100,000. In return, Defendants will receive contribution protection and a covenant not to sue (subject to standard CERCLA exceptions) from the United States. The United States lodged the CD on May 29, 2008, and published notice of the lodging of the proposed Consent Decree in theFederal Register on June 5, 2008. See 73 Fed. Reg. 32,050-51 (June 5, 2008). The 30-day federal register notice period closed without public comment on approximately July 5, 2008.
Contact: John Matson, Office of Regional Counsel, 312-886-2243; William Ryan, Superfund Division, 312-353-4374