April 2009 Significant Cases
Week of April 6, 2009
Region 5 Executes Consent Agreement and Final Order with Micro Industries, Inc., of Rock Falls, Illinois, Resolving Clean Water Act Pretreatment Violations
On April 8, 2009, the Region filed a Consent Agreement and Final Order (CAFO) resolving Micro Industries' liability for 158 violations of the daily and monthly new source pretreatment limits for zinc under the Metal Finishing Point Source Category, 40 C.F.R. part 433, and 8 violations of the reporting requirements for categorical users found at 40 C.F.R. § 403.12(e). The Agency initially proposed a penalty of $75,000 for those violations in a prefiling notice letter. Given Micro Industries' demonstrated financial limitations, the CAFO requires the Respondent to pay a civil penalty of $1,500.
Contact: Robert Guenther, Office of Regional Counsel, 312-886-0566; secondary contact: Newton Ellens, Water Division, 312-353-5562
Oral Argument Set in United States v. Apex Oil Company (08-3433)
The 7th Circuit Court of Appeals has set May 11, 2009, as the date for oral argument in Apex Oil Company's appeal of 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. The issues on appeal include the effect of bankruptcy on a Resource Conservation and Recovery Act 7003 injunction and whether conditions in Hartford may present an imminent and substantial endangerment to health or the environment.
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, 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 Soil Vapor Extraction 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, Office of Regional Counsel, 312-886-6620
Region Resolves Emergency Planning and Community Right-to-know Act Section 313 Case Against LAD Technology, Inc. (Mayfield Village, Ohio)
On April 3, 2009, the Acting Regional Administrator signed a Consent Agreement and Final Order (CAFO) in which LAD Technology, Inc. (Respondent) agreed to pay a penalty of $4,514 for a violation of Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. § 11023, at its facility in Mayfield Village, Ohio. Specifically, Region 5 alleged that the Respondent failed to timely file its calendar year 2005 Toxic Chemical Release Inventory Form R, for lead that it processes at its facility, with EPA and the State of Ohio by July 1, 2006, as required by Section 313 of EPCRA. The Respondent filed its calendar year 2005 Form R with EPA on July 12, 2007. Based on the Respondent's cooperation and good faith efforts to comply, EPA determined that it is appropriate to settle this matter for $4,514. The parties agreed that settling the matter, without further litigation, was in the public interest. The CAFO became effective on April 7, 2009.
Contact: Ann Coyle, Office of Regional Counsel, 312-886-2248; secondary contact: Maynard Shaw, Land and Chemicals Division, 312-353-5867
Week of April 13, 2009
Region 5 enters into Administrative Order on Consent with Respondents at Piqua Hospital Site in Piqua, Ohio
On April 17, 2009, Region 5 executed an Administrative Settlement Agreement and Order on Consent (AOC) for a removal action at the Piqua Hospital Site in Piqua, Ohio with the Respondents, Hospdela LLC and Dr. Enrique De La Piedra. The AOC was entered into as a proceeding under Sections 104, 106(a), 107 and 122 of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Piqua Hospital Site is a former hospital which was being renovated for other uses. Region 5 conducted a site assessment on March 17 - 18, 2009 and documented the presence of hazardous wastes at the site, including corrosive-containing drums (acids and caustics), elemental mercury and asbestos containing materials. Under the AOC, the Respondents shall, among other things, properly remove the asbestos containing materials in outdoor areas, remove all hazardous waste including drums, containers and mercury sources and stabilize any indoor areas contaminated with asbestos containing materials.
Contacts: Deborah Carlson, Office of Regional Counsel, 312-353-6121; William
Ryczek, Superfund Division, 312-886-7184; Steven Renninger, Superfund Division,
Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Buchheit, Inc.
On April 17, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with the Respondent to settle violations ofSection 12(a)(1)(A) of FIFRA, 7 U.S.C. § 136j(a)(1)(A). Specifically, the Respondent distributed or sold a misbranded pesticide. Region 5 initiated prefiling discussions on this matter in February, 2009. The proposed penalty was $6,500. During settlement discussions, the Respondent agreed to pay a civil penalty of $5,200.
Contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; additional contact: Terence Bonace, Land and Chemicals Division, 312-886-3387
Region 5 enters into a Consent Agreement and Final Order requiring Pennant Foods Company, Northlake, Illinois to comply with the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 to 9675, and the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 to 11050, and to pay a civil penalty of $40,000
On October 29, 2008, we filed against the Respondent, Pennant Foods Company in Northlake, Illlinois, a Complaint and Notice of Opportunity for Hearing (the Complaint) which alleged that on Monday, June 27, 2005, the Respondent emitted into the air approximately 3,000 pounds of anhydrous ammonia, but failed to timely notify the National Response Center, the State Emergency Planning Commission, and the Local Emergency Planning Committee, in violation of Section 103(a) of Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9603(a), and Section 304(a) of Emergency Planning and Community Right to Know Act (EPCRA), 42 U.S.C. §11004(a). The Complaint proposed a civil penalty of $97,500. On April 14, 2009, we resolved the Complaint and entered into a Consent Agreement and Final Order (CAFO) which required the Respondent to comply with CERCLA and EPCRA, and to pay a civil penalty of $40,000. We reduced the proposed civil penalty based upon credible fact provided by the Respondent, and pursuant to Section 109(a)(3) of CERCLA, 42 U.S.C. § 9609(a)(3), Section 325 of EPCRA, 42 U.S.C. § 11045, and the U.S. EPA Enforcement Response Policy for Sections 304, 311 and 312 of the Emergency Planning and Community Right-to-Know Act and Section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act, dated September 30, 1999.
Contact: Jeffery M. Trevino, Associate Regional Counsel, 312- 886-6729; additional contact: Ginger Jager, Environmental Scientist, 312- 886-0767
Week of April 20, 2009
Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Neptune Pool & Spa, Inc.
On April 24, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with the Respondent, Neptune Pool & Spa, Inc., to settle violations of Sections 7(c)(1) and 12(a)(2)(L) of the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA), 7 U.S.C. §§ 136e(c)(1) and 136j(a)(2)(L). Specifically, the Respondent failed to file Annual Production Reports for calendar years 2004, 2006 and 2007. During settlement discussions, which were initiated in December of 2008, the Respondent was able to show through financial documentation, that it was unable to pay a penalty of any amount. Therefore, the penalty in this matter was reduced to $0 from $14,500 due to the Respondent's inability to pay.
Contacts: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; Joseph Lukasyck, Land and Chemicals Division, 312-886-6233
Region 5 signs a Consent Agreement and Final Order with Neil Kennedy
On April 21, 2009, Region 5 signed a Consent Agreement and Final Order (CAFO) with Neil Kennedy (Respondent) that fully resolves the Residential Lead-Based Paint Hazard Reduction Act (the "Act") violations alleged in Region 5's July 2008 complaint. (42 U.S.C. §§ 4851 et seq.) EPA's six count administrative complaint sought $23,540 in civil penalties for violations which originated when the Respondent failed to provide the requisite disclosures under the Act. In consideration of Respondent's inability to pay due to financial hardship, Region 5 agreed to reduce the civil penalty to $100 in settlement of the case.
Contact: Leslie Kirby-Miles, Office of Regional Counsel, 312-353-9443; Pamela Grace, Land and Chemicals Division, 312-353-2833
Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Flanders Corporation
OnApril 24, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with the Respondent to settle violations of Sections 7(c)(1) and 12(a)(2)(L) of Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136e(c)(1) and 136j(a)(2)(L). Specifically, the Respondent failed to file an Annual Production Report for calendar year 2005. Region 5 initiated prefiling discussions on this matter in January 2009. The proposed penalty was $3,000. During settlement discussions, the Respondent agreed to pay a civil penalty of $3,000.Contact: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; Joseph Lukascyk, Land and Chemicals Division, 312-886-6233
Region 5 Enters into a Consent Agreement and Final Order Resolving Violations of Sections 312 and 313 of Emergency Planning and Community Right-to-Know Act by Double Eagle Steel Coating Company, Dearborn, Michigan
On April 16, 2009, the Regional Administrator, EPA Region 5, signed a Consent Agreement and Final Order (CAFO) commencing and concluding a matter under EPCRA Sections 312 and 313 pursuant to which Double Eagle Steel Coating (Double Eagle) agrees to pay a civil penalty of $93,392. The CAFO was filed with the Regional Hearing Clerk on April 23, 2009. The CAFO alleges violations of Emergency Planning and Community Right-to-Know Act (EPCRA) Section 312 based on Double Eagle's failure to timely file with the State Emergency Response Commission (SERC), Local Emergency Planning Commission (LEPC), and local fire department a Hazardous Chemical Inventory Form (Tier II) for calendar years 2006 and 2007. The CAFO also alleges violations of EPCRA Section 313 based on Double Eagle's failure to timely file with EPA and the State of Michigan a Toxic Chemical Release Inventory Form (Form R) for the toxic chemicals hydrochloric acid, lead compounds, and zinc compounds for calendar year 2006. Double Eagle attempted to self-disclose these violations in a letter dated August 28, 2008, but did not meet the criteria for a penalty reduction under EPA's Self-Disclosure Policy primarily due to the fact that local and federal agencies had previously contacted them to check on the status of the expected forms. EPA calculated an initial penalty calculation for these violations of $162,864. In consideration of Double Eagle's cooperation, willingness to quickly settle, and other matters as justice may require, including Double Eagle's attempted self-disclosure, EPA determined that an appropriate civil penalty to settle this action is $93,392. Pursuant to the CAFO, Double Eagle 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
Manager of Michigan Wastewater Business Sentenced to Prison for Illegally Discharging Untreated Wastes
On April 22, 2008, Michael G. Panyard, a former manager of Comprehensive Environmental Solutions, Inc. (CESI) was sentenced to 15 months in prison by U.S. District Court Judge Victoria Roberts of the Eastern District of Michigan in Detroit. Mr. Panyard along with two other managers of CESI were convicted of federal environmental crimes after a jury trial in October 2008. 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 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 Clean Water Act violation; he was sentenced to 24 months in prison on April 7, 2009. 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 Clean Water Act; he was sentenced to 90 days home confinement and 3 years probation.
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 Clean Water Act. 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, Don Kaniowski, was sentenced to three years probation after pleading guilty and providing substantial assistance to the government in the course of its investigation. CESI also 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.CESI is scheduled to be sentenced on
May 11, 2009.
Contact: David Mucha, Office of Regional Counsel, 312-886-9032
Week of April 27, 2009
Region 5 Enters New Administrative Consent Order with Republic Engineered Products, Inc. in Lorain, Ohio to Accommodate Declining Demand for Steel
On July 29, 2008, the Region and Republic Engineered Products, Inc. (Republic) entered into an Administrative Consent Order (ACO) that requires Republic to implement a compliance program to resolve the opacity violations at two basic oxygen process (BOP) vessels at its integrated iron and steel facility in Lorain, Ohio. The compliance program requires Republic to implement several projects to enhance the secondary pollution control and capture system for the BOP vessels by no later than July 29, 2009. On December 3, 2008, Republic placed the BOP vessels on temporary idle due to the declining demand for steel. In early 2009, Republic asked the Region to allow Republic additional time to complete the compliance program. The Region agreed and on April 29, 2009, the Region and Republic entered into a new ACO which requires Republic to complete the compliance program by no later than July 29, 2009 or the date on which Republic resumes operation of either BOP vessel, whichever is later.
Contacts: Christine Liszewski, Office of Regional Counsel, 312-886-4670; Reza Bagherian, Air and Radiation Division, 312-886-0674
Region 5 files Complaint and signs a Consent Agreement and Final Order with Laminated Products, Inc.
Region 5 initiated and settled its enforcement action with Laminated Products, Inc. in Kenosha, Wisconsin in a combined complaint and consent agreement and final order on April 28, 2009. The complaint alleges that Laminated Products, Inc. violated the Wisconsin State Implementation Plan, specifically Wis. Admin. Code NR 423.035(3)(a)(3), which specifies a 3.8 lb of VOC per gallon limit for general cleaning activity, and 5.8 lb of VOC per gallon limit for polyvinylchloride surfaces. Laminated Products, Inc. resolved this violation by agreeing to limitations in its Title V permit which was effective December 17, 2007. This settlement will require Laminated Products, Inc. to pay a penalty of $2,500. This penalty includes a reduction for cooperation and for the economic impact of the penalty on the company.
Contact: Padmavati Bending, Office of Regional Counsel, 312-353-8917
Region 5 Files a Consent Agreement and Final Order Concluding an Action Against National Lime and Stone Company, Findley, Ohio
On April 28, 2009, Region 5 filed a Consent Agreement and Final Order concluding an action against National Lime and Stone Company. In a Complaint filed on November 18, 2008, Region 5 alleged that National Lime and Stone Company violated Section 502(a) of the Clean Air Act, 42 U.S.C. § 7661a (a), and OAC 3745-31-05(A) (3) at its facility in Carey, Ohio; National Lime and Stone Company exceeded its permit limit for organic compounds from November 2003 through January 2007 and for carbon monoxide from January through October of 2007. National Lime and Stone Company has agreed to pay a civil penalty of $13,000 and to perform two supplemental environmental projects ("SEP") valued at $155,000. Theses two SEPs will achieve reductions in total emissions from the facility.
Contact: Jose C. de Leon, Office of Regional Counsel, 312-353-7456
Region 5 enters Consent Agreement and Final Order with Tetrad Electronics Inc., Willoughby, Ohio, for Emergency Planning & Community Right-to-Know Act 313 violation
On April 30, 2009, EPA Region 5 simultaneously commenced and concluded a Part 22 proceeding to assess a penalty against Tetrad Electronics, Inc., a manufacturer of printed circuit boards, for failing timely to file a Form R for the year 2003 for its processing of lead in excess of the reporting threshold, in violation of Emergency Planning & Community Right-to-Know Act (EPCRA) Section 313, 42 U.S.C. §11023. Tetrad promptly filed the required Form R following a 2005 compliance inspection. Based on its cooperation and other factors as justice require, EPA agreed to reduce the assessed penalty from $6,448 to $3,224.
Contacts: Tom M. Williams, Office of Regional Counsel, 312-886-0814; Kenneth Zolnierczyk, Land and Chemicals Division, 312-353-9687