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August 2009 Significant Cases

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Week of August 3, 2009

Region 5 signs a Consent Agreement and Final Order with One Management, Inc., L&J Investment, Inc., and One Management Investment Group resolving Lead-Based Paint violations

On August 5,2009, U.S. EPA Region 5 filed a Consent Agreement and Final Order (CAFO) with the Regional Hearing Clerk that concludes, under Section 1018 of the Residential Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 4852d, alleged violations of the regulations at 40 C.F.R. Part 745, Subpart F, related to leasing transactions at residential buildings located in Detroit, Michigan. Under the terms of the CAFO, the Respondents will pay a $1,470 penalty, with interest, in four installments within nineteen months of the effective date of the CAFO.

Contacts: Scott Cooper, Land and Chemicals Division, 312-353-2833; Mary McAuliffe, Office of Regional Counsel, 312-886-6237

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Region 5 Issues Notices of Determination to St. Mary's Medical Center, Hobart, Indiana; St. Catherine Hospital, East Chicago, Indiana; and The Community Hospital, Munster, Indiana

On August 6, 2009, Region 5 issued Notices of Determination (NODs) to three hospitals located in northwest Indiana. By letters dated April 9, 2009, St. Mary's Medical Center (SMMC), St. Catherine Hospital (SCH) and The Community Hospital (TCH) provided formal notification and voluntary disclosure of violations of the Clean Air Act and the Emergency Planning and Community Right-to-Know Act (EPCRA). All three hospitals disclosed violations of the reporting requirements found at EPCRA § 312, 42 U.S.C. § 11022. In addition, SMMC and SCH disclosed violations of the recordkeeping requirements of the National Emission Standards for Hospital Ethylene Oxide Sterilizers, 40 CFR § 63.10432. Finally, SMMC disclosed violations of the notification and reporting requirements of the New Source Performance Standards for Small Industrial-Commercial-Institutional Steam Generating Units, 40 CFR §§ 60.7 and 60.48c. Based upon the information provided by the three hospitals, Region 5 determined that the self-disclosures met the nine criteria for waiver of all civil gravity-based penalties under the EPA's May 11, 2000, policy entitled Incentives for Self-Policing: Discovery, Disclosure, Correction, and Prevention of Violations. Region 5 also determined that any economic benefit gained as a result of the violations was insignificant. Based upon these determinations, Region 5 issued each hospital an NOD resolving the potential claims for civil penalties for these violations.

Contact: Mony Chabria, Office of Regional Counsel, 312-886-6842

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Region 5 signs Consent Agreement and Final Order with Northern Frozen Foods

Region 5 filed a Consent Agreement and Final Order (CAFO) on August 4, 2009 (Docket Number FIFRA-05-2009-0004) under Section 14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136l(a) against Northern Frozen Foods, Inc., d/b/a Northern Haserot in Cleveland, Ohio. This CAFO resolves violations of FIFRA regarding the sale and distribution of misbranded pesticides. In the Complaint filed on February 4, 2009, U.S. EPA alleged that Northern Frozen Foods, a supplemental registrant under FIFRA, offered for sale and sold germicidal cleaner with an improper label. The CAFO requires Northern Frozen Foods to pay a $7,280 penalty.

Contact: Susan Prout, Office of Regional Counsel, 312-353-1029

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Week of August 10, 2009

Region 5 files EPCRA CAFO concerning Bushmills, Ethanol, Inc. (Atwater, MN)

On August 14, 2009, Region 5 finalized a Part 22 Consent Agreement and Final Order (CAFO) concerning this ethanol manufacturer. In the CAFO, which both initiates and concludes this matter, Environmental Protection Agency alleges that Bushmills committed 6 violations of Section 312 of Emergency Planning Community Right-to-Know Act by failing to submit inventory reports to the Minnesota SERC and the local fire department. In this CAFO, Bushmills agrees to pay a penalty of $85,000.

Contact: Chuck Mikalian, Office of Regional Counsel, primary contact, 312-886-2242; Ruth McNamara, secondary contact, 312-353-3193

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Week of August 17, 2009

Minnesota Company pleads guilty to illegal discharges.

Corn Plus, LLLP, an ethanol producer with a facility in Winnebago, Minnesota, pleaded guilty on August 19, 2009 to one count of negligent discharge of pollutants under the Clean Water Act. Corn Plus admitted it discharged wastewater containing the pollutant biological oxygen demand into Rice Lake from 2005 through Aug. 10, 2007. The wastewater entered a drain on the company's property which emptied into the lake. The company admitted it failed to exercise due and reasonable care to prevent the discharges from entering Rice Lake. The company was charged on August 3, 2009. The company faces a potential maximum penalty of five years of probation and a fine.

Contact: David Taliaferro, Office of Regional Counsel - Criminal Investigation Division, 312-886-0815

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U.S. EPA reaches administrative settlement for violations of RCRA

WRR Environmental Services Company, Inc. (Respondent), a corporation doing business in the State of Wisconsin, is the owner and operator of a licensed treatment and storage facility in Eau Claire, Wisconsin (the facility) that treats, stores, and disposes of hazardous waste, particularly solvents. On June 12, 2007 to June 14, 2007, United States Environmental Protection Agency (U.S. EPA) conducted an inspection of the facility. The inspector discovered that Respondent had failed to comply with several Resource Conservation and Recovery Act (RCRA) requirements for a TSD facility. On June 22, 2007, Respondent had a fire that destroyed a large portion of the facility, though the Respondent was able to remain in business. Since the fire, the Respondent has rebuilt the damaged portions of the facility.

On March 10, 2009, U.S. EPA sent Respondent a pre-filing letter regarding the alleged violations from the inspection and the fire. After receiving the notice, the parties entered into negotiations and the parties were able to reach a settlement. The Respondent agreed to sign a Consent Agreement and Final Order (CAFO) which requires the Respondent to assure that it is now in compliance with RCRA, pay a civil penalty of $20,000 and perform three Supplemental Environmental Projects (SEPs), with a total value of $69,771. The SEPs require the Respondent to conduct a cleanup of the stream adjacent to the facility and to conduct two household hazardous waste collection days, one in November 2009 and another in November 2010. The CAFO was signed by the Region 5 Regional Administrator on August 19, 2009 and filed with the Regional Hearing Clerk on August 20, 2009.

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

United States Enters Consent Decree for Section 1018 Lead-Based Paint Case in Ohio

On August 21, 2009, the Northern District of Ohio entered a Consent Decree on behalf of the United States Environmental Protection Agency and the United States Department of Housing and Urban Development with Carmen Neapolitan.

On June 23, 2009, the United States Attorney's Office for the Northern District of Ohio filed a Complaint and simultaneously lodged the Consent Decree in this matter. Mr. Neapolitan owns, co-owns and/or manages 25 residential properties in the Youngstown and Struthers, Ohio area. Twenty-four of the properties are single family dwellings, and one property is a duplex. Each of these buildings is a target housing property (constructed prior to 1978). The Consent Decree resolves Mr. Neapolitan's violations of reporting and recordkeeping requirements regarding the disclosure of lead-based paint information under Section 1018 of the Lead-Based Paint Hazard Reduction Act, 42 U.S.C. §4852d.

Under the Consent Decree, Mr. Neapolitan will certify that he is complying with Section 1018 requirements, will submit a plan for window replacement, and will replace all windows in the 24 properties. In addition, Mr. Neapolitan will pay a civil administrative penalty of $2,000. This settlement is the first Section 1018 Consent Decree in Ohio.

Contacts: Mary McAuliffe, Office of Regional Counsel, 312-886-6237; Estrella Calvo, Land and Chemicals Division, 312-353-8931

U.S. EPA Region 5 Issues Determination Resolving Self-Disclosure by Valent BioSciences Corporation of the Sale and Distribution of Pesticides whose Composition differed from the Composition Described in the Pesticide's Registration

On August 19, 2009, the United States Environmental Protection Agency (EPA), Region 5, issued a letter of determination resolving a self-disclosure by Valent BioSciences Corporation (Valent) for violations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Based on the information Valent provided, EPA has elected to mitigate the calculated $1,820,000 gravity portion of the penalty by 100 percent and now considers the matter closed.

EPA received letters from Valent dated January 7, 2008, and June 30, 2009, in which Valent Environmental Sciences Division disclosed violations of FIFRA which involved the distribution or sale of pesticides whose composition differed from the composition described in the pesticide's registrations.

EPA Region 5 consulted with Headquarters staff and reviewed the circumstances of Valent's disclosures in light of the criteria set forth in EPA's policy entitled Incentives for Self-Policing: Discovery, Correction and Prevention of Violations as set forth on April 11, 2000 (65 Fed. Reg. 19618). Based on the information Valent provided, EPA has elected to mitigate the calculated $1,820,000 gravity portion of the penalty by 100 percent and now considers the matter closed.

Contacts: Thomas C. Nash, Associate Regional Counsel, 312-886-0552; Terry Bonace, Enforcement Officer, 312-886-3387

Region 5 enters into Administrative Order on Consent under the Clean Air Act in Minneapolis/St.Paul targeted enforcement initiative with Leroy Iron and Metals

On August 20, 2009, U.S. EPA Region 5 signed an agreement with Leroy Iron and Metals ("Leroy"), a Division of Behr Iron. This enforcement action was part of Region 5's targeted enforcement of scrap yards in the Minneapolis/St. Paul, Minnesota metropolitan area for compliance with the Clean Air Act refrigerant recovery requirements at scrap yards. Leroy owns and operates a scrap metal recycling facility in Leroy, Minnesota. It was one of the ten largest suppliers of auto scrap and small appliances to Gerdau Ameristeel, Inc. in Minneapolis, Minnesota. In addition to complying with the Clean Air Act refrigerant recovery regulations Leroy agreed to reject appliances with cut lines or where individuals identified themselves as the person responsible for refrigerant recovery. Additionally, it agreed to provide U.S. EPA with copies of verification statements it accepts and information on loads it has rejected for a one year period.

Contacts: Rich Clarizio, Office of Regional Counsel, 312-886-0559; Lynne Roberts, Air and Radiation Division, 312-886-0250

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Week of August 24, 2009

Appellate Decision in United States v. Apex Oil Company (08-3433).

On August 25, 2009, the 7th Circuit Court of Appeals affirmed the decision and order in United States v. Apex Oil Company, Case Number 05-CV-242 DRH (S.D. Illinois) requiring Apex Oil to cleanup of a large plume of petroleum based contamination beneath the Village of Hartford, Illinois. Issues specifically addressed in the appellate decision are whether 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 and 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).

As to the bankruptcy issue, Judge Posner writes that a RCRA 7003 claim is not discharged explaining, "the near consensus of the cases . . . suggests a general understanding that discharge must indeed be limited to cases in which the claim gives rise to a right to payment because the equitable decree cannot be executed, rather than merely imposing a cost on the defendant, as virtually all equitable decrees do." (United States v. Apex Oil Company, No. 08-3433 (7th Cir. Aug. 25, 2009, page 8)).

With respect to the form of the district court's order, the court acknowledged that the order is vague but held that under the circumstances of a complex and lengthy cleanup it meets the requirements of rule 65(d). "To specify the details of the project in the decree would either impose impossible rigidity on the performance of the clean up or, more likely, require constant recourse to the district judge for interpretation or modification of the decree." (Id. at page 10).

Jeffrey Spector of the United States Department of Justice (DOJ) was the lead trial attorney while Randall Stone of DOJ argued the appeal for the United States.

Contact: Brian Barwick, Office of Regional Counsel, 312-886-6620

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Region 5 Files a Consent Agreement and Final Order Resolving RCRA Hazardous Waste Violations alleged against Wisconsin Plating Works of Racine

On April 24, 2009, United States Environmental Protection Agency filed a Complaint against Wisconsin Plating Works of Racine - Wisconsin Plating Division, alleging that Wisconsin Plating violated Section 3005(a) of Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6925, at its facility in Racine, Wisconsin by failing to appropriately label containers of hazardous waste, failing to remove electroplating hazardous waste from the site within 180 days, failing to conduct weekly inspections, and failing to close a hazardous waste container. On August 24, 2009, Region 5 filed a Consent Agreement and Final Order settling the case. Wisconsin Plating certified compliance with applicable RCRA regulations and agreed to pay a penalty in the amount of $9000. The final penalty amount was mitigated, in part, due to the company's limited ability to pay.

Contact: Reginald Pallesen, Office of Regional Counsel, 312-886-0555; Brenda Whitney, Land Chemical Division, 312-353-4796

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EPA-Region 5 Issues 401 Certification for U.S. COE CWA 404 Permit for Enbridge Pipeline Project

On August 25, 2009, United States Environmental Protection Agency, Region 5 (U.S. EPA) issued a certification under Section 401 of the Clean Water Act (CWA) for the portion of the U.S. Army Corps of Engineers' CWA 404 permit authorizing Enbridge Energy Limited Partnership to temporarily discharge fill material into approximately 265 acres of wetlands located on the Leech Lake Indian Reservation in Minnesota. The Leech Lake Reservation crossing is just one part of Engridge's construction of the "Alberta Clipper" crude oil pipeline which is planned to run between Canada's tar sands fields in Hardistry, Alberta, and Superior, Wisconsin. Legal challenges to the pipeline project, including the environmental impact statement written by the U.S. State Department and the project's various permits, are all pending.

Currently there are no federally approved water quality standards (wqs) for the Leech Lake Reservation. U.S. EPA's certification is premised on reasonable assurance that the pipeline project would not violate State of Minnesota wqs at the borders of the reservation. The certification was developed following consultation with representatives of the Leech Lake Band, and specifically addresses tribal concerns for protection and mitigation of wild rice, which is grown in several areas that the pipeline is expected to cross. Additionally, the certification conditions provide for U.S. EPA and tribal oversight of construction activities, and require engineering controls to prevent the release of any contaminants from the St. Regis Superfund Site, located nearby the proposed pipeline route, also within the exterior boundaries of the Leech Lake Reservation. The Fond du Lac Band, which is authorized for CWA 303/401 and has federally approved wqs, issued its own certification for the portion of the project which crosses its reservation, also located in Minnesota.

The project is expected to move 450,000 barrels, or 19 million gallons of crude oil, per day, in addition to 1.6 million barrels per day that Enbridge already moves through an existing pipeline along the same route as the proposed expansion. Secretary of State Hillary Clinton signed a presidential permit authorizing the bi-national pipeline project on August 20.

Contacts: Barbara Wester, Office of Regional Counsel, 312-353-8514; Janice Cheng, Water Division, 312-353-6424

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United States and State of Illinois file Complaint against Midwest Generation

On August 27, 2009, U.S. EPA and the State of Illinois filed a complaint in the Northern District of Illinois against Midwest Generation LLC, alleging that the company violated the Prevention of Significant Deterioration (PSD) provisions of the Clean Air Act (CAA), the opacity and particulate matter limitations of the Illinois State Implementation Plan, and the Title V regulations of the CAA at its six coal-fired electricity generating stations in Illinois. In addition to seeking penalties, the Plaintiffs request the court to, among other things, order Midwest Generation to: install BACT or LAER, as appropriate, at all units subject to the complaint and to obtain the appropriate PSD or nonattainment New Source Review (NSR) permits for those units; to amend its Title V applications to conform with the requirements of the Illinois SIP opacity and PM limitations; to conduct audits of its operations to determine if any additional modifications have occurred that would require it to meet the requirements of PSD or nonattainment NSR; and to offset and mitigate the harm to public health and the environment caused by its CAA violations. On July 31, 2007, U.S. EPA issued a Notice of Violation to Midwest Generation, for the above-cited violations. On July 28, 2009, a coalition of environmental groups and citizens' groups sent U.S. EPA a 60-day notice of intent to file a citizen suit against Midwest Generation for opacity violations and violations of Title V of the CAA.

Contacts: Susan Tennenbaum, Office of Regional Counsel, 312-886-0273; Eaton Weiler, Office of Regional Counsel, 312-886-6041; Raymond Cullen, Air and Radiation Division, 312-886-0538

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Region 5 issues an Administrative Order under Section 309(a) of the Clean Water Act requiring Williamson Development Company, LLC to conduct interim restoration measures for streams impacted by unpermitted fill activities

On August 26, 2009, Region 5 issued an Administrative Order ("AO") finding that between 2005 and 2008 Williamson Development Company, LLC ("Williamson") cleared and graded 156.5 acres of land in Marion County, Illinois and in the process adversely impacted 14,359 linear feet of streams. The AO requires Williamson to implement interim restoration measures to reduce erosion and sedimentation, including:

○ Installation and maintenance of silt fences.
○ Establishment of a temporary cover crop for a minimum width of 100 feet from the banks of all stream channels.
○ Removal of all stream crossings and grading of the stream banks at these crossings to a 4:1 or greater slope up to the surrounding site contours.

Williamson has 30 days from the effective date of the AO to implement the interim measures.

Contacts: Brian Barwick, Associate Regional Counsel, 312-886-6620 or Yone Yu, Environmental Scientist, 312-886-2260

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Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Alden Leeds Inc., located in South Kearney, New Jersey

On August 25, 2009, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with the Respondent to settle violations of Section 12(a)(1)(E) of Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136j(a)(1)(E). Specifically, the Respondent distributed or sold a misbranded pesticide on two separate occasions. Region 5 initiated prefiling discussions on this matter in June, 2009. The proposed penalty was $10,400. During settlement discussions, the Respondent agreed to pay a civil penalty of $10,400.

Contacts: Nidhi O'Meara, Office of Regional Counsel, 312-886-0568; Terence Bonace, Land and Chemicals Division, 312-886-3387

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Individual Indicted For Clean Air Act Violations In New London, Wisconsin; UnitedStates v. Michael Phillips

On August 25, 2009, Michael Phillips was indicted for knowingly violating the National Emission Standards for Hazardous Air Pollutants (NESHAPS) work practice standards for asbestos.

Michael Phillips is the owner of Villa Apartments, a multi-unit apartment building located in New London, Wisconsin. The indictment alleges asbestos violations related to the renovation of the Villa Apartments. Specifically, the indictment alleges that Phillips failed to provide written notice of his intention to renovate; failed to adequately wet all regulated asbestos containing material (RACM), in that the defendant participated and caused others to participate in cutting and disjoining, and taking RACM out of Villa Apartments without wetting it; failed to have on site a person trained in regulations regarding RACM removal and disposal; failed to contain RACM in leak-tight wrapping; and failed to label the container or wrapping as follows: DANGER; ASBESTOS DUST HAZARD; CANCER AND LUNG DISEASE HAZARD. If convicted, the maximum sentence is five years imprisonment per count and the maximum fine is $25,000 per day of violation.

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: Crissy Pellegrin, Office of Regional Counsel, 312-353-5263

U.S. EPA Region 5 Issues Unilateral Modified Administrative Order Directing Compliance with Request for Access Under CERCLA Section 104(e) to the Dayton Power and Light Company in Moraine, Ohio, adjacent to the South Dayton Dump and Landfill Superfund Site

On August 25, 2009, the Director of the Superfund Division, U.S. EPA, Region 5, issued a Modified Administrative Order Directing Compliance with Request for Access under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 104(e) to the Respondent, Dayton Power & Light Company (DP&L) in Moraine, Ohio. A PDF copy of the Order was transmitted by email to the Respondent on August 26, 2009 and the Dayton Power and Light Company's legal representative provided U.S. EPA with the Company's formal, written Notice of Intent to Comply with the Order later the same day, also by electronic transmission.

Contacts: Karen Cibulskis, Superfund Division, 312-886-1843; Thomas Nash, Office of Regional Counsel, 312-886-0552

Week of August 31, 2009

Region 5 files joint Complaint/Consent Agreement and Final Order in Settlement of CERCLA and EPCRA claims against EMCO Chemical Distributors, Inc., North Chicago, IL

On September 3, 2009, Region 5 simultaneously filed a joint Complaint and Consent Agreement and Final Order (CAFO) settling an administrative penalty action against EMCO Chemical Distributors, Inc. (EMCO), North Chicago, Illinois for alleged release reporting violations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, and the Emergency Planning and Community Right to Know Act (EPCRA). In this case, Region 5 alleges EMCO failed to provide timely notifications and written follow-up related to two releases that exceeded the hazardous substances, trichloroethylene and tert-butyl acetate, reportable quantities. Prior to the filing of the CAFO, EMCO submitted the appropriate notifications alleged in the Complaint/CAFO. The CAFO requires EMCO to pay a civil penalty of
$82,661.17, with $56,634.96 going to the Superfund and $ 26,026.61 going to the
U.S. Treasury.

Contacts: Thomas J. Kenney, Office of Regional Counsel, 312-886-0708, and James Entzminger, Superfund, 312-886-4062

Region 5 signs Consent Agreement and Final Order with J&J Cores, LLC, Newcomerston, Ohio

On September 3, 2009, Region 5 signed a Consent Agreement and Final Order (CAFO) with J&J Cores, LLC (J&J Cores). The CAFO commences and concludes an administrative action which alleges that J&J Cores failed to continuously monitor and record afterburner temperatures of its sweat furnace at its secondary aluminum production facility, in violation of the National Emissions Standards and Hazardous Pollutants for Secondary Aluminum Processing and Section 112 of the Clean Air Act. In consideration of the Respondent's ability to pay a penalty, its prompt return to compliance and its cooperation during settlement, the CAFO requires J&J Cores to pay a $1,000 penalty.

Contact: Susan Tennenbaum, Office of Regional Counsel, 312-886-0273; Gina Harrison, Air & Radiation Division, 312-353-6956

Illinois Boy's Academy pleads guilty to mishandling asbestos

The Society of Saint Pius X, a corporation which operates a boy's academy in Georgetown, IL, pleaded guilty September 2, 2009 to improper removal of asbestos. The company was sentenced to two years of court supervision and ordered to pay the sum of $250,000 in fines, restitution and community service. Payment of half that amount was held in abeyance if the corporation complies with the terms of a plea agreement. The agreement also calls for the corporation to provide the names of the volunteers who helped with a renovation project which involved asbestos, and to provide evidence within 6 months that other school facilities it operates around the country are in compliance with Asbestos Hazardous Emergency Response Act.

Contact: David M. Taliaferro, Office of Regional Counsel, 312-886-0815

City of Detroit Inspector Charged with Abusing Office to Commit Wire Fraud

On September 2, 2009, City of Detroit lead inspector Donald Patterson appeared in federal court before a United States Magistrate on a complaint charging him with abusing his official position to commit wire fraud. Patterson, who was arrested on September 1, 2009, was released on an unsecured bond. A preliminary examination is scheduled for September 21, 2009.

According to the supporting affidavit to the complaint, Patterson works as a lead inspector for the City of Detroit, Michigan. A young child was admitted to a Detroit hospital with a badly elevated blood lead level. Michigan law requires that the City of Detroit investigate for lead hazards the home in which any child with an elevated blood lead level resides. The investigation into the home of this child was assigned to Patterson. Patterson identified a lead issue in this child's home. However, rather than insist on proper lead removal, Patterson offered to the landlord that, in exchange for $200 wired to Patterson personally, he would "train" the grandfather of the child, who was living in the home, to take care of the lead problem. Patterson separately made the same offer to the child's grandfather, in exchange for $200 cash paid directly to Patterson.

The complaint further alleges that, as a City of Detroit employee, Patterson was not permitted to make these offers or to receive this money. Further, he was not qualified to provide the lead-removal training. Proper training in lead removal requires a one week course. Rather than provide proper training in exchange for the $400 he received, Patterson provided a 15 minute explanation on how to use paint stripper. Patterson did not inform the child's grandfather that it was important to keep the child out of the home during any lead abatement, and the child was, in fact, again exposed to lead in the home while the grandfather attempted to follow Patterson's instructions.

A conviction for wire fraud carries a maximum penalty of five years in prison or a $500,000 fine, or both. Any sentence will ultimately be imposed under the United States Sentence Guidelines according to the nature of the offense and the criminal background, if any, of the defendant.

A complaint is only a charge and is not evidence of guilt. Trial cannot be held on felony charges in a complaint. When the investigation is completed a determination will be made whether to seek a felony indictment.

Contact: James Cha, Office of Regional Counsel, 312-886-0512

U.S. EPA agrees to Consent Agreement and Final Order with MBH Trucking, LLC for 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(a), 311 and 312

On September 3, 2009, U.S. EPA filed a Consent Agreement and Final Order resolving allegations that MBH Trucking, LLC (MBH), a Michigan Corporation, violated CERCLA § 103(a) and EPCRA §§ 304, 311, and 312. The terms of the CAFO provide that MBH will pay a cash $42,137.74 civil penalty ($13,697.40 to the Superfund and $28,440.34 to the U.S. Treasury) for failure to file timely notices of a
920-pound release of anhydrous ammonia (a CERCLA hazardous substance and an EPCRA extremely hazardous substance). The release occurred on May 6, 2008 during the transfer of the anhydrous ammonia from a fueling tank to a tank on a farm.

On March 26, 2008, the U.S. EPA issued an Administrative Complaint to MBH. In the Complaint, EPA sought a penalty of $138,692.14. MBH filed an Answer to the Complaint and, in an attempt to resolve this matter, the parties entered into Alternative Dispute Resolution. Based upon the facts presented in informal settlement discussions, the parties achieved an equitable resolution of the matter for a $47,137.74 cash penalty and the performance of a Supplemental Environmental Project (SEP). EPA reduced the penalty for settlement based on MBH's cooperation and return to compliance; quick settlement; such other matters as justice may require; and, the performance of the SEP. The SEP in this matter involves providing training to the trucking and agriculture industries on CERCLA and EPCRA reporting requirements. The SEP is estimated to cost MBH $22,500.

Contact: Nicole Wood-Chi, Office of Regional Counsel, 312-886-0664; James Entzminger, Superfund Division, 312-886-4062

Region 5 Files a Consent Agreement and Final Order Commencing and Concluding an Action Against Acid Products Company, Inc., Chicago, Illinois

On September 2, 2009, Region 5 filed a Consent Agreement and Final Order concluding an action against Acid Products Company, Inc. Region 5 alleged that Acid Products Company, Inc. violated 40 C.F.R. Part 68 and Section 112(r) of the Clean Air Act at its facility in Chicago, Illinois when it submitted a Risk Management Plan which was deficient in formaldehyde (CAS No. 50-00-0) and hydrogen fluoride/hydrofluoric acid (CAS No. 7664-39-3), substances regulated under Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), exceeded the threshold amount requirements under 40 C.F.R. § 68.130, Table 1, and that 40 C.F.R. § 68.12(d) requires that once the threshold amount is exceeded, in addition to meeting the general requirement of 40 C.F.R. § 68.12(a), the owner or operator of a stationary source with a process subject to Program 2 shall meet additional requirements identified at 40 C.F.R. § 68.12(c) and with a process subject to Program 3 shall meet additional requirements identified at 40 C.F.R. § 68.12(d).

Acid Products Company, Inc., has agreed to pay a civil penalty of $10,984 and to perform two supplemental environmental projects ("SEP") valued at $30,682. These two SEPs will protect public health and the environment in that they are designed to lessen the possibility of releases from the facility.

Contact: Jose Deleon, Office of Regional Counsel, 312-353-7456

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