March 2009 Significant Cases
Week of March 2, 2009
Region 5 files a Consent Agreement and Final Order to commence and conclude case against GFX International, Inc., Grayslake, Illinois
On March 2, 2009, Region 5 filed a Consent Agreement and Final Order simultaneously commencing and resolving an administrative penalty action against GFX International, Inc., for alleged violations of Clean Air Act Sections 502(a), 110(a)(2)(I), and 112(g). EPA determined via inspection and information request that due to GFX's use of solvents, emissions from the screen printing cleaning process exceeded 10 tons per year of toluene, a regulated hazardous air pollutant (HAP). GFX had been operating its Grayslake location without any type of air permit since 1999.
GFX subsequently came into compliance by switching to a non-HAP solvent and applying to the State of Illinois for a permit. In settlement, in addition to paying a cash penalty of $100,000, GFX will spend at least $264,000 to perform Supplemental Environmental Projects (SEPs) to further reduce emissions at the facility. The SEPs include installation of an industrial centrifuge, an industrial solvent recovery system, and a system to facilitate recycling corrugated cardboard. In addition, GFX will undergo environmental health and safety audits, benchmarking, and verification of green and sustainable business practices as suggested by the Sustainable Green Printing Partnership. In total, the solvent reformulation and SEPs will reduce air annual emissions at GFX's Grayslake facility by 35,800 pounds of HAPs and an additional 9,242 pounds of VOCs.
Contact: Kathleen Schnieders, 312-353-8912
EPA Region 5 Enters Into a Consent Agreement and Final Order Resolving a Terminal Facility's Failures to File Notifications for Hazardous Chemicals
On March 3, 2009, the Acting Regional Administrator of EPA Region 5 signed a Consent Agreement and Final Order commencing and concluding a matter relating to alleged violations of Emergency Planning and Community Right-to-Know Act (EPCRA) Sections 311 and 312 at a Mississippi River terminal facility in Granite City, Illinois, owned or operated by Lewis & Clark Marine, Inc. Pursuant to the Consent Agreement and Final Order, Lewis & Clark agreed to pay a civil penalty of $57,504. The Consent Agreement and Final Order alleged that Lewis & Clark violated Sections 311 and 312 of EPCRA by failing to timely submit 1) a material safety data sheet (MSDS) for calcined magnesium oxide or a list showing calcined magnesium oxide; and 2) a completed Emergency and Hazardous Chemical Inventory Form including calcined magnesium oxide, to the Illinois State Emergency Response Commission, the Madison County Local Emergency Planning Committee and the Granite City Fire Department. The alleged violations occurred in calendar years 2005 through 2007. EPA's original penalty calculation was $104,553, which EPA reduced for settlement based on Lewis & Clark's cooperation and return to compliance; quick settlement; and such other matters as justice may require.
Contact: Kris Vezner, Office of Regional Counsel (312) 886‑6827
Fort Wayne, Indiana Business Owner Sentenced to Prison of Environmental Crime
On March 2, 2009, in United States District Court, Northern District of Indiana, Fort Wayne Division, Alan Hersh, President and Owner of Hassan Barrel Company, Inc., a defunct industrial barrel or drum reconditioning facility, was sentenced to 15 months in prison after pleading guilty to one felony violation of the federal Resource Conservation and Recovery Act (RCRA) for knowingly storing and disposing of RCRA hazardous waste at the Hassan Barrel Company, Inc. facility located in Fort Wayne, Indiana. Hersh accumulated and stored drums of hazardous waste on site until about October 31, 2003, when Hassan Barrel went out of business and Hersh abandoned the facility, leaving thousands of drums scattered throughout the site. Neither Hersh nor Hassan Barrel had a RCRA treatment, storage and disposal permit. In October 2004, United States Environmental Protection Agency (U.S. EPA)-Superfund commenced an emergency removal at the facility and continues to address remedial measures that may be necessary. Hersh's sentence also includes 3 years of supervised release upon his release from prison and an order of restitution to U.S. EPA-Superfund in the amount of $1,704,020.07.
Contact: David Mucha, Office of Regional Counsel - Criminal Investigation Division, 312-886-9032
Administrative Law Judge Gunning Issues an Initial Decision on In the Matter of Behnke Lubricants, Inc and The Decision Will Not Be Appealed
On August 3, 2006, the Wisconsin Department of Agriculture conducted an inspection at Behnke Lubricants, Inc. (Behnke) Menomenee Falls, Wisconsin facility. Region 5 found that Behnke sold or distributed five different unregistered pesticides, which were lubricants, on at least 11 different occasions, in violation of Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Behnke's labeling, advertising and marketing claims included public health pesticide claims. On March 31, 2008, a four day hearing on this matter commenced before Judge Gunning in Waukesha County, Wisconsin. Behnke's main defense was that the lubricants fell under the "on or in processed foods" exemption set forth in 40 CFR 152.5(d) and therefore were not subject to United States Environmental Protection Agency's (EPA) jurisdiction under FIFRA. Behnke also argued that the lubricants were already regulated by the Food and Drug Administration (FDA), therefore EPA could not regulate the lubricants. On December 30, 2008, Judge Gunning of the Office of Administrative Judges issued an initial decision (43 pages) in In the Matter of Behnke Lubricants, Inc., FIFRA-05-2007-0025. Judge Gunning found Behnke to be in violation of FIFRA and its implementing regulations for all 11 counts alleged in the Complaint. Further, she ordered Behnke to pay a penalty in the amount of $55,055, which is above our initial penalty demand of $50,050. Judge Gunning clarified a number of issues that have not yet been ruled upon including: (1) Section 2(mm) of FIFRA does limit FIFRA jurisdiction with regard to antimicrobial pesticides. (2) It is possible for both the FDA and EPA to have jurisdiction over the same product under the Federal Food, Drug, and Cosmetic Act and FIFRA. (3) The "on or in processed food" exemption found at 40 CFR 152.5(d) only applies if the pesticide in question is added to the processed food or applied on the processed food directly. (4) Behnke's trade mark name "MICRONOX" (which it used to describe the pesticidal technology in its lubricants) is a pesticidal claim - an issue that the parties disputed over to the very end. Behnke did not appeal the initial decision, nor did the Environmental Appeals Board choose to review the decision on its own initiative. Behnke paid the penalty in full on March 2, 2009.
Primary contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; additional contact: Terry Bonace, Land and Chemical Division, 312-886-3387
Week of March 9, 2009
U.S. resolves violations of CERCLA Consent Decree financial assurance requirements by Ormet Primary Aluminum Corporation for its Hannibal, Ohio facility
On March 11, 2009, the U.S. District Court, Southern District of Ohio, entered an Amendment to the Consent Decree incorporating a two year schedule for Ormet Primary Aluminum Corp. ("Ormet") to establish adequate financial assurance via letters of credit totalling $3.4 million to assure 20 years of operation and maintenance of remedial action components. This enforcement action was pursued consistent with EPA's national enforcement priority to ensure that parties performing remedial actions have adequate financial insurance in place to cover the costs of cleanup should they cease work due to financial difficulties. Pursuant to the original 1995 RD/RA consent decree, Ormet was to establish financial assurance in one of the forms specified in 40 CFR Part 264, Subpart F for remedial construction and for the long term Operation and Maintenance of the remedy. For several years Ormet satisfied this requirement by annual demonstrations of compliance with the financial test as set forth in 40 CFR §143(f). Remedial action construction was completed in 1998. Since then Ormet continued to meet its O&M obligations under the consent decree despite undergoing Chapter 11 bankruptcy and reorganization from January 2004-April 2006. When the company entered into financial difficulties it ceased providing the required annual certifications of compliance but did not establish one of the alternate forms of financial assurance described in the regulations, as it was required to do under the Consent Decree. In addition to setting the two year compliance schedule for the recalculated amount of Financial assurance, the settlement limits the company's use of the financial test in the future, requiring that it maintain at least two years of financial assurance in the form of a letter of credit, trust, surety or insurance. The consent decree was also amended to incorporate updated Institutional Controls provisions. The Declaration of Land Use Restrictions recorded pursuant to the 1995 consent decree was replaced with a UECA-type environmental covenant which covers a larger geographic area than was covered under the original Declaration, based on a 2007 five-year review concluding that the groundwater plume extends beyond the original site boundary.
Contact: Deborah Garber, 312/886-6610.
Region 5 signs Consent Agreement and Final Order with Chicago Transit Authority
On March 10, 2009, Region 5 of the United States Environmental Protection Agency signed a Consent Agreement and Final Order with the Chicago Transit Authority, resolving an administrative penalty action for alleged violations of Section 305 of the Resource Conservation and Recovery Act, 42 U.S.C. §6925, and the regulations for large quantity generators of hazardous waste. The agreement settled violations at five of CTA's Chicago maintenance facilities, including the Red Line Service Center at 9800 South State, the CTA South Shops at 7800 South Vincennes, the 63rd Street Lower Yard at 313 East 63rd Street, and the CTA West Shops at 3901 West Maypole, all in Chicago; and the CTA Skokie Shops at 3701 West Oakton Street in Skokie. EPA inspected these facilities in May 2006 and April 2007 and found that CTA failed to have required hazardous waste manifests, annual reports, and waste analyses at these facilities during one or both inspections, and that CTA failed to clean up used oil spills in the basement of its South Shops facility during both inspections.
Under the terms of the agreement, CTA will pay a $5,513 penalty and complete a supplemental environmental project at its South Shops facility. The project includes: 1) the installation of an overfill alarm and automatic shut-off system for all above ground lubricating oil, waste oil, and antifreeze tanks located in the basement of the facility; and 2) the installation of spill containment and a sump connected to the existing industrial waste discharge line upstream of the facility's oil/water separator system, to collect any product spilled during connection and disconnection of bulk trailers to inlet receptacles for bulk oil, waste oil, and antifreeze outside the facility.
Contact: Erik Olson, primary contact 312-886-6829; Dan Chachakis, additional contact 312-886-9871
Region 5 and Region 3 Issue Consent Order to DuPont
On March 10, 2009, Region 5, along with Region 3, issued a Safe Drinking Water Act emergency order on consent to E.I. du Pont de Nemours and Co. The order lowers the action level for PFOA - also known as perfluorooctanoic acid, or C-8 - in drinking water for communities surrounding the company's Washington Works facility in Parkersburg, W. Va. The order was prompted by a recent United States Environmental Protection Agency (EPA) Provisional Health Advisory for PFOA. EPA expects that this change will impact a limited number of residents. Based on current data, approximately 14 private residences may need a treatment system or connection to a public water system. Under the new order, DuPont will offer connection to a public water system, treatment, or temporary bottled water for public or private water systems if the level of PFOA detected in drinking water is equal to or greater than 0.40 parts per billion. This action level replaces the 0.50 ppb threshold established under a November 2006 EPA consent order with DuPont. Also, DuPont will take additional samples of private drinking water wells that were installed after 2006 and sample in some previously untested areas.
Contact: Leslie Kirby-Miles, Office of Regional Counsel, 312-353-9443; Program Contact: Ryan Bahr, Water Division, 312-353-4366
Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Rand Direct Midwest LLC (Rand Direct)
Region 5 initiated prefiling discussions on this matter in November, 2008. The proposed penalty was $2,500. On March 11, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with Rand Direct to settle violations of Sections 7(c)(1) and 12(a)(2)(L) of Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136e(c)(1) and 136j(a)(2)(L). Specifically, Rand Direct failed to file Annual Production Reports for calendar years 2006 and 2007. During settlement discussions, Rand Direct agreed to pay a civil penalty of $2,500.
Primary contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; additional contact: Joseph Lukasyck, Land and Chemical Division, 312-886-6233
U.S. District Court Issues Administrative Warrant To Allow Superfund Removal Action Following Potential "Owners'" Failure To Consent To Access At Ohio Cast Products Site, Akron, OH
On March 11, 2009, the United States District Court for the Northern District of Ohio issued an administrative warrant upon the application of United States Environmental Protection Agency (U.S. EPA) Region 5's Acting Regional Administrator, enabling Region 5 On-Scene Coordinators to conduct a time-critical removal action at the Ohio Cast Products Site in Akron, Ohio. U.S. EPA's investigation indicated that the facility's former operator, Ohio Cast Products, Inc., had liquidated in bankruptcy proceedings. When a civil investigator requested access from the former corporation's individual principal and provided a standard "request for access" form, the principal declined to consent and sent U.S. EPA a faxed statement that he had no authority to grant or deny access to the property and that he had been excluded from the premises by the former corporation's secured creditor. Similarly, the secured lender, which holds a recorded lien on the property, declined to execute a "consent to access" form, even after U.S. EPA offered to modify it to provide that it would not be used as an admission of ownership for purposes of Comprehensive Environmental Response, Compensation, and Liability Act Section 107(a)(1) in some future cost recovery proceeding. The court issued the warrant at the request of the United States Attorney for the Northern District of Ohio and upon U.S. EPA's documentation of the threat of release at the Site and its repeated and unsuccessful efforts to obtain consensual access. The warrant affords the On-Scene Coordinators one year to complete the removal action.
Contacts: James Justice, On-Scene Coordinator 440-250-1744; Stephen Wolf, On-Scene Coordinator 440-250-1718; Tom M. Williams, Office of Regional Counsel 312-886-0814
Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Parker Rust-Proof of Cleveland in Cleveland, Ohio
Region 5 initiated prefiling discussions on this matter on December, 2008. On March 12, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with Parker Rust-Proof to settle violations of Section 313 of Emergency Planning & Community Right-to-Know Act, 42 U.S.C. Section 11023. Specifically, Parker Rust-Proof failed to submit a Form R to the Administrator and to Ohio for nitrate compounds for calendar year 2004. During settlement discussions, Parker Rust-Proof agreed to pay a civil penalty of $5,481.
Primary contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; additional contact: Robert Allen, Land and Chemical Division, 312-353-5871
Region 5 signs Consent Agreement and Final Order with Aluma-Tec Industries
On November 20, 2008, Region 5 signed a Consent Agreement and Final Order with Aluma-Tec Industries (Aluma-Tec), Waukesha, Wisconsin, in settlement of an administrative complaint filed on April 7, 2008, which alleged that Aluma-Tec had violated Section 312(a) of Emergency Planning & Community Right-to-Know Act by failing to submit to the Wisconsin State Emergency Response Commission, the Local Emergency Planning Committee and the Peewaukee Fire Department completed Emergency and Hazardous Chemical Inventory Forms, including sulfuric acid and nitric acid, for calendar years 2004, 2005, and 2006. The complaint proposed an $85,425 penalty, which Region 5 reduced to $55,526 for cooperation and quick settlement. The settlement includes a Supplement Environmental Project (SEP), which is the installation of an acid purification unit that would allow the recycling of sulfuric acid, reducing Aluma-Tec's use of sulfuric acid by approximately 9,000 pounds per year and reducing the risk from accidental sulfuric acid spills and releases to the local Publicly Owned Treatment Works. The cost of the SEP is $41,815. In addition, Aluma-Tec will pay a civil penalty of $20,448.
Contact: Susan Tennenbaum, Office of Regional Counsel, 312-886-0273; Ruth McNamara, Superfund Division, 312-353-3193
Week of March 16, 2009
Region 5 entered into an Environmental Covenant with Big Dog Project, LLC, Dana Companies, LLC, and Dana Holding Corporation, Antwerp, Ohio
On March 17, 2009, Region 5 entered into an Environmental Covenant with Big Dog Project LLC, Dana Companies, LLC, and Dana Holding Corporation imposing activity and use limitations and rights of access on property located at 5278 U.S. 24 East, Antwerp, Ohio (Dana Facility). The Environmental Covenant describes the real property, and limits the property to "commercial and industrial" use only. It also prohibits uses of groundwater for potable purposes until cleanup levels are achieved, and places occupancy restrictions and disturbance limitations on a restricted area which is defined and depicted in the Environmental Covenant. The Environmental Covenant was recorded on March 20, 2009 with the Paulding County, Ohio Recorder.
On July 21, 2008, EPA issued the Final Decision and Response to Comments (FDRC), which required corrective measures including implementation of institutional controls at the property. The Environmental Covenant's limitations and rights of access are consistent with the FDRC on corrective measures, and complete one of the corrective measures selected for the Dana Facility.
The Environmental Covenant was prepared in accordance with Ohio's version of the Uniform Environmental Covenants Act (UECA), Ohio Revised Code (ORC) §§ 5301.80-92. The Ohio UECA establishes a clear set of rules for imposing activity and use limitations with respect to real property owned by one person but subject to a specified use or enjoyment by another through an Environmental Covenant. The covenant must describe the real property and the activity or use limitations to be placed on it; impose upon the owner certain requirements for notice to future purchasers; identify all holders; identify the location of any administrative record for the environmental response action; and be signed by the holder(s) or grantees of the environmental covenant, the government agenc(ies) and, unless waived by the agencies, the owners. For purposes of this Environmental Covenant, Big Dog Project, LLC is both the "owner" and "holder." Additional holders are Dana Companies, LLC and Dana Holding Corporation. The corrective action implementation under Section 3008(h) of the Resource Conservation and Recovery Act, 42 U.S.C. § 6908(h) is the "environmental response project."
Contact: Tamara Carnovsky, Office of Regional Counsel, 312-886-2250; additional contact: Ken Bardo, Land and Chemicals Division, 312-886-7566
United States Files Answering Brief in United States v. Apex Oil Company (08-3433)
On January 28, 2009, Apex Oil Company filed its brief with the 7th Circuit appealing the July 28, 2008 decision and order in United States v. Apex Oil Company, Case Number 05-CV-242 DRH (S.D. Illinois). Judge Herndon's order requires Apex Oil to cleanup a large plume of petroleum based contamination beneath the Village of Hartford, Illinois. On March 20, 2009, the United States filed its answering brief. The issues on appeal are whether:
1. The United States' right to an injunction under the Resource Conservation and Recovery Act (RCRA) was a "claim" that was discharged by Apex's prior bankruptcy, where a right to an equitable remedy is only "claim" under the Bankruptcy Code if a breach of performance gives rise to an alternative "right to payment," 11 U.S.C. § 101(5)(B).
2. Whether the district court erred in finding that the conditions in Hartford, Illinois "may present an imminent and substantial endangerment to health or the environment" under RCRA Section 7003, 42 U.S.C. § 6973(a).
3. Whether the cleanup requirements and related dictates of the district court's injunction qualify under RCRA Section 7003 as actions that "may be necessary" to abate the endangerment in Hartford, 42 U.S.C. § 6973(a).
4. Whether the district court's order granting the injunction stated its terms "specifically" and in "reasonable detail," as required by Fed. R. Civ. P. 65(d).
Apex Oil's reply brief is due by April 3, 2009 after which the 7th Circuit will schedule oral argument.
During the period 1967 through 1988, Apex Oil operated a refinery and pipelines adjacent to and within Hartford. Apex released gasoline that has commingled with other responsible parties releases and resulted in a large plume of refined petroleum substances beneath Hartford. Among other things, vapors from the plume have migrated into homes in Hartford causing fires, explosions, and evacuations; and, therefore, vapors present an imminent and substantial endangerment to human health and the environment.
In 2003, citing its 1988 bankruptcy discharge, Apex Oil refused to join other responsible parties in entering into an Administrative Order on Consent (AOC) with EPA. Since then the other responsible parties, known as the Hartford Working Group, have performed work under an AOC and have completed a comprehensive investigation of the Site, implemented interim measures such as the SVE system, and designed a plan for the removal of liquid phase hydrocarbons. In April of 2005, the United States filed its Complaint against Apex.
Contact: Brian Barwick, primary contact (312-886-6620)
Region 5 files a combined Administrative Complaint and Consent Agreement with Bugg Products, LLC
On March 16, 2009, Region 5 simultaneously filed an administrative complaint and Consent Agreement and Final Order resolving three violations of Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), for the sale and distribution of registered pesticide products, "Buggspray Insect Repellent," "Buggslayer Insecticide" and "Buggspray Insect Repellent for Biting Flies," with advertising claims that differ from claims accepted by EPA as part of the products' registration. EPA interprets these regulations, at 40 C.F.R. Section 168.22(a), to extend to advertisements on any advertising medium to which pesticide users or the general public have access. Bugg has claimed an inability to pay; as such, Bugg will pay a penalty of $1,000, reduced from $8,124.
Contact Joanna Glowacki, Associate Regional Counsel, primary contact 312-353-3757, or Terence Bonace, Life Scientist, additional contact 312-886-3387
United States Environmental Protection Agency (U.S. EPA), Region 5 and the United States resolve the civil case United States v. John A. Rapanos, et al., (E.D. MI)
On March 18, 2009, Judge Friedman, Chief Judge, United States District Court for the Eastern District of Michigan, entered a Consent Decree between the United States and John A. Rapanos, his wife and several wholly owned companies (Rapanos) to resolve the civil case United States v. John Rapanos, et al., Court Action No. 94-CV-70788-DT (E.D. MI). The Consent Decree orders the following.
- Rapanos shall pay to the United States a civil penalty of $150,000.00.
- Rapanos will complete, at an estimated cost of $750,000.00, an off-site wetlands mitigation project ordered by the Court consisting of creation/restoration of approximately 100 acres of wetlands, and donate the mitigation properties to a third party conservation group to manage and maintain the wetlands in perpetuity.
- Rapanos will fund a mitigation endowment, of no less than $25,000.00, to assure the selected conservator has sufficient funds to manage the project.
- Rapanos will permanently preserve approximately 34 acres of wetlands not impacted at the Pine River site, and approximately 100 acres of wetlands not impacted at the Hines Road site.
- Rapanos will recognize, accept, and respect established state (Michigan) wetland delineations at the Pine River and Hines Road sites, and agree which other parts of the sites will require a wetland delineation if Rapanos continue development.
- The United States and Rapanos acknowledge that Nationwide Permit 32 (NWP 32), found at 72 Fed. Reg. 11092, 11, 187 (March 12, 2007) authorizes any fill that was in place as of April 20, 1999 (as set forth in Exhibits 2 and 3 to the Consent Decree) and may remain in place subject to NWP 32 and the terms and conditions of the consent decree.
- Rapanos are enjoined from discharging any pollutants into waters of the United States unless Rapanos obtain any necessary federal permit(s).
Contact: John P. Steketee, Office of Regional Counsel, at 312-886-0558; Dave Taliaferro, Office of Regional Counsel - Criminal Investigation Division at 312-886-0815; additional contact: David Schulenberg, Water Division, at 312-886-6680
Region 5 issues Administrative Order requiring Alstom Power Inc., Windsor, Connecticut, to comply with Clean Air Act Section 114 request within 14 days
On March 21, 2008, Region 5 issued an Administrative Order (AO) requiring Alstom Power Inc. (Alstom) to comply with a Clean Air Act (CAA) Section 114 information request that had been issued in March 2008. The information request sought documents pertaining to work that Alstom had performed at six coal-fired electric generating stations that were owned and operated by Commonwealth Edison and are currently owned and operated by Midwest Generation. Alstom provided an insufficient response to the information request on May 27, 2008. On November 11, 2008, Region 5 issued a Finding of Violation to Alstom for violation of CAA Section 114. On March 27, 2009, Alstom provided additional documents responsive to the information request. The Midwest Generation enforcement team is currently reviewing the documents to determine whether Alstom has complied with CAA Section 114.
Contact: Susan Tennenbaum, ORC, 312-886-0273
Default Judgment Entry Issued by U.S. District Court in the Northern District of Ohio in United States v. Carlton B. Coen Land Company, et al., a Superfund Cost-Recovery Case
On March 20, 2009, Judge Economus of the Northern District of Ohio entered a default judgment in favor of the United States in a cost-recovery civil action pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). On August 29, 2008, the United States filed a complaint against Carlton B. Coen Land Company (in personam) and property parcels 02-06471 and 02-06478, addressed at 1900 19th Street, N.E., Canton, Ohio (in rem), seeking recovery of costs incurred and to be incurred by the United States as a result of the release or threatened release of hazardous substances at the Rocket Oil Superfund Site, in Canton, Ohio (located on the property parcels identified above). EPA conducted a CERCLA removal action on the Rocket Oil Site in November 4, 2004, to remove hazardous substances, including at least 15,000 gallons of highly flammable liquid hazardous waste generated from underground storage tank cleaning activities, that the local Fire Marshall's office determined was a potential fire hazard to surrounding properties. Carlton B. Coen Land Company, the owner of the Rocket Oil Site, repeatedly has refused to pay response costs owed to the United States, and failed to file an answer to the complaint. The March 20, 2009, Judgment Entry awards the United States $314,476.64 in past response costs (including interest), provides a declaratory judgment that Carlton B. Coen Land Company is liable for all future response costs, not inconsistent with the National Contingency Plan, incurred by the United States in connection with the Rocket Oil Site, and authorizes the issuance of a warrant for arrest of the property parcels that make up the Rocket Oil Site. This Judgment Entry lays the way for the United States to foreclose on the site property and sell it at auction for reimbursement of CERCLA response costs.
Contact: Mark Palermo, Office of Regional Counsel, 312-886-6082
United States Enters a Consent Decree Resolving CAA Violations and Requiring Pollution Controls by Chemtrade Logistics, Chemtrade Refinery Services, and Marsulex at Six Sulfuric Acid Plants
On April 2, 2009, the United States District Court for the Northern District of Ohio entered a Consent Decree that will require Chemtrade Logistics, Chemtrade Refinery Services, and Marsulex to spend at least $12 million on air pollution controls and pay a civil penalty of $700,000. The required pollution controls are expected to eliminate more than 3,000 tons of harmful emissions annually from six sulfuric acid plants located in Louisiana, Ohio, Oklahoma, Texas and the Wind River Reservation in Wyoming.
Between January 2010 and January 2013, at its four production facilities in Beaumont, Texas; Shreveport, Louisiana; Tulsa, Oklahoma; and Riverton, Wyoming, Chemtrade will upgrade existing pollution control equipment called scrubbers to meet new, lower emission limits for sulfur dioxide. At its facility in Oregon, Ohio, Marsulex will improve chemical processing equipment that will reduce sulfur dioxide emissions by no later than July 2011. Finally, Marsulex will install a new scrubber at Chemtrade's sulfuric acid plant in Cairo, Ohio, to meet lower sulfur dioxide limits by July 2011.
The United States' complaint, filed with the Consent Decree, alleges that Chemtrade and Marsulex made modifications to their plants, which increased emissions of sulfur dioxide without first obtaining pre-construction permits and installing required pollution control equipment required by the New Source Performance Standard (NSPS) and Prevention of Significant Deterioration (PSD) provisions of the Clean Air Act. The states of Louisiana, Ohio, and Oklahoma, and the Northern Arapaho Tribe joined the federal government in the settlement. U.S. EPA, Region 5, working with U.S. DOJ, acted as the lead EPA region in the settlement negotiations and coordinated with Regions 6 and 8.
Contact: Robert H. Smith, Office of Regional Counsel, 312-886-0765; Nathan Frank, Air and Radiation Division, 312-886-3850
Week of March 23, 2009
Region 5 signs a Consent Agreement and Final Order with Wisconsin Veneer and Plywood, Inc., Mattoon, Wisconsin
Region 5 initiated this enforcement action with a complaint on September 22, 2008. On
March 26, 2009,Region 5 signed a consent agreement and final order (CAFO) with Wisconsin Veneer and Plywood, Inc., Mattoon, Wisconsin to settle violations of Section 502(a) of the Clean Air Act, 42U.S.C. § 7661a(a), and 40 C.F.R. §70.7 for failing to maintain the required pressure drop at two of its boilers and failing to report those violations in semi-annual monitoring reports and annual compliance certifications. Wisconsin Veneer and Plywood, Inc. is currently in compliance with the Clean Air Act. This settlement will require Wisconsin Veneer and Plywood, Inc. to pay a penalty of $5,000; the company has already completed a supplemental environmental project. This penalty includes a reduction for cooperation and good faith efforts at compliance, for the economic impact on the company along with credit for implementing a supplemental environmental project.
Contact: Padmavati Bending, ORC, (312) 353-8917
Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Syngenta Crop Protection
Region 5 initiated prefiling discussions on this matter in February 2009. OnMarch 25, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with the Respondent to settle violations of Sections 12(a)(1)(B) of FIFRA, 7 U.S.C. § 136j(a)(1)(B). Specifically, the Respondentdistributed 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.During settlement discussions, the Respondent agreed to pay a full civil penalty of $6,500.
Contact: Nidhi O'Meara, primary contact 312/886-0568; Claudia Niess, additional contact 312/886-7598
Regional Judicial Officer Issues Initial Decision and Default Order in FIFRA Case Against Porter Hybrids, Inc. in Wilmington, OhioOn March 3, 2008, Complainant, the Director of the Land and Chemicals Division, EPA, Region 5, issued an administrative complaint against Porter Hybrids in Wilmington, Ohio alleging that Porter Hybrids violated section 12(a)(2)(L) of FIFRA, 7 U.S.C. § 136j(a)(2)(L), by failing to file a true and accurate Pesticide Report for Pesticide-Producing and Device-Producing Establishments (EPA Form 3540-16) for calendar years 2005 and 2006. On October 6, 2008, Complainant filed an amended complaint alleging only one count, failure to file a true and accurate Form 3540-16 for calendar year 2006, and proposed a penalty of $1,000 for this violation. Porter Hybrids failed to file an answer to either the original complaint or the amended complaint. On December 15, 2008, Complainant filed a motion for default. On February 17, 2009, the Regional Judicial Officer issued an order to show cause to Porter Hybrids. Porter Hybrids has not responded to the order. On March 26, 2009, the Regional Judicial Officer issued an initial decision and default order assessing a civil penalty of $1,000. The Default Order will become final 45 days after its service if Porter Hybrids does not file an appeal.
Contact: Christine Liszewski, Office of Regional Counsel, 312-886-4670
Week of March 30, 2009
Region 5 Settles Clean Air Act Prevention of Significant Deterioration Penalty Matter with Akron Thermal LLP in Bankruptcy Proceeding
On March 30, 2009, Judge Shea-Stonum of the United States Bankruptcy Court for the Northern District of Ohio (Eastern Division) approved an Agreed Order which resolved: (1) a Proof of Claim by the United States on behalf of EPA related to Clean Air Act Prevention of Significant Deterioration violations by Akron Thermal LLP; (2) an Objection to Confirmation by the United States on behalf of EPA; and (3) a potential Administrative Claim by the United States on behalf of EPA. In 2005, Akron Thermal LLP (AT) was issued two Notices of Violation by Region 5, pursuant to the Clean Air Act. While prefiling settlement discussions were underway, AT filed for protection pursuant to Chapter 11 (reorganization) of the Bankruptcy Code. A Proof of Claim was filed by the United States on December 14, 2007, which sought recovery of CAA penalties (primarily related to the restart of a coal-fired steam heating/cooling boiler in 1995 without proper emission controls). An Objection to Confirmation was filed by the United States on August 21, 2008, and was related to the Reorganization Plan filed by the debtor in the bankruptcy matter. The United States was also preparing an Administrative Penalty claim at the time of the settlement. In the Agreed Order, AT agreed to: (1) insert certain language in the Reorganization Plan; (2) allow EPA a general unsecured claim of $1,100,000; and (3) and allow EPA an Administrative Claim for $25,000. EPA expects to be paid approximately $110,000 ($.10/$1.00) for the general unsecured claim and $25,000 ($1.00/$1.00) for the Administrative Claim.
Contact: Catherine Garypie, Office of Regional Counsel, 312-886-5825; Erik Hardin, Air and Radiation Division, 312-886-2402
EPA enters Consent Agreement and Final Order with Morgan Olson Corporation resolving violations of the Clean Air Act
On March 30, 2009, the Acting Regional Administrator signed a Final Order resolving violations of Title V of the Clean Air Act (the Act) by Morgan Olson Corporation (Morgan Olson). Specifically, at its Sturgis, Michigan facility, Morgan Olson failed to comply with testing and record-keeping requirements of its Title V permit. Under the terms of the settlement in the Consent Agreement and Final Order (CAFO), Morgan Olson will pay a civil penalty of $64,512. This action was commenced and concluded through the CAFO.
Contact: Cynthia A. King, Office of Regional Counsel, 312-886-6831; secondary contact: Dan Schaufelberger, Air and Radiation Division, 312-886-6814
Three Individuals Indicted For Illegal Asbestos Removal In East Liverpool, Ohio; UnitedStatesv.Stephen L. Jones, Michael A. Phelps, Jr., and George L. Webber
On April 1, 2009, Stephen L. Jones, Michael A. Phelps, Jr., and George L. Webber were indicted for illegally removing asbestos in the basement of a residence in East Liverpool, Ohio.
The indictment alleges that Jones, Phelps, and Webber, took asbestos covered pipes from a landfill near East Liverpool, Ohio, with the intent to sell the pipes as scrap metal. Prior to selling the pipes, Jones, Phelps, and Webber stripped the asbestos from the pipes in the basement of Webber's residence, a duplex. Jones, Phelps, and Webber used hand and power tools to strip the asbestos from the pipes. The stripped asbestos was allowed to fall to the floor where it collected. Water was not used during the stripping operations, and water was not used to maintain wet the asbestos insulation that collected on the basement floor, contrary to proper procedures.
An indictment is only a charge and is not evidence of guilt. A defendant is entitled to a fair trial in which it will be the government's burden to prove guilt beyond a reasonable doubt.
Contact: Brad Beeson, ORC, (440) 250-1761
The United States District Court entered a Consent Decree between the United States, the State of Ohio and the City of Ironton for violations of the Clean Water Act arising out of combined sewer overflows into the Ohio River
On March 17, 2009, the United States District Court entered the Consent Decree that resolves the federal government's claims under the Clean Water Act. The Consent Decree requires the City of Ironton to pay a total civil penalty of $98,000, divided equally between the United States and the State of Ohio. The City has also agreed to separate its combined storm water and sanitary sewers by the end of 2026. While constructing the separate sewer system, the City will continue to implement the Nine Minimum Controls in the remaining combined sewer areas. The City will also implement a plan to reduce infiltration and inflow of clear water into the City's sanitary sewers.
The City of Ironton is located along the Ohio River in southeastern Ohio. Its combined storm and sanitary sewer system, portions of which are over 100 years old, routinely overflows following rain events into the Ohio River in violation of its permit and the Clean Water Act. The civil penalty is consistent with the approved bottom-line settlement amount derived in accordance with the National Municipal Litigation Consideration in EPA's Clean Water Act Settlement Penalty Policy. Separation of the combined sewer system will ultimately remove more than 1.3 million gallons per year of combined sewage discharges from eight CSO locations to the Ohio River. The City is expected to spend approximately $12.5 million in 2008 dollars in order to meet its obligations under the Consent Decree.
Contact: Steven P. Kaiser, Office of Regional Counsel, 312-353-3804
Consent Agreement and Final Order issued in Duke Energy Comprehensive Environmental Response, Compensation, and Liability Act/Emergency Planning and Community Right-to-Know Act Case
On April 3, 2009, United States Environmental Protection Agency, Region 5, issued a Consent Agreement and Final Order (CAFO) that resolved violations of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 103(a) and Emergency Planning and Community Right-to-Know Act (EPCRA) Section 304 at Duke Energy's Cayuga, Indiana Generating Station. On June 14, 2005, there was a release of approximately 190 pounds of chlorine from the Cayuga facility. Duke discovered the release at 5:25 a.m., but did not begin reporting the release to the authorities until 8:30 a.m. The CAFO requires Duke to pay a penalty of $54,402.
Contact: Timothy Thurlow, Office of Regional Counsel, 312-886-6623; Ruth McNamara, Chemical Emergency Preparedness and Prevention Section, 312-353-3193