Region 5 - Office of Regional Counsel

Clean Air Act (CAA)

Abbyland Foods and Schoep Ice Cream
Ace Ethanol Company
Aexcel Corporation
Ashland, Inc.
BP Chemical Inc.
Buckeye Egg Farm, LP
Dominick's Finer Food, L.L.C.
ISG Indiana Harbor Inc.
Jessup Manufacturing
Lesaffre Yeast Corporation
Lyon County Landfill
Mule-Hide Products Company, Inc.
Murphy Oil USA, Inc.
Northern States Power
Packaging Corporation of America
Rose Acre Farms
Southwest General Health Center
Superior Aluminum Alloys, LLC

The United States lodges Consent Decree with Ace Ethanol, LLC resolving violations of the Clean Air Act. On February 6, 2004, the United States and the State of Wisconsin lodged a Consent Decree and simultaneously filed a Complaint in the Western District of Wisconsin against Ace Ethanol, L.L.C. (Ace) in Stanley, Wisconsin. The Complaint alleges that Ace failed to obtain the proper permits and install Best Available Control Technology prior to beginning operation of its ethanol facility. The Consent Decrees addresses emission limits and control technology requirements, as well as permitting and record-keeping requirements. Ace will pay a civil penalty to the State of Wisconsin in the amount of $337,609.

Contact: Cynthia King, 312-886-6831  

Entry of Consent Decree Under the Clean Air Act (CAA) Settling U.S. EPA’s Case with Northern States Power.  On October 20, 2003, a consent decree was entered with the U.S. District Court, Western District of Wisconsin, settling U.S. EPA’s claims against Northern States Power (NSP) for violations of the Federal Plan requirements for large municipal solid waste combustors, 40 CFR 62 FFF. On June 18, 2003, U.S. EPA filed its complaint against NSP in U.S. District Court charging that the two municipal waste combustors (MWC) at NSP’s LaCrosse, Wisconsin, facility were operating in noncompliance with the federal plan requirements. Violations cited included exceedances of emission standards for hydrogen chloride (HCL), particulate matter (PM) and sulfur dioxide (SO2). To achieve compliance, NSP installed a dry lime scrubber, a pulse jet baghouse and a selective non-catalytic nitrous oxide reduction process on each MWC, at a total cost of approximately $10.9 million. Additionally, under the agreement, NSP is obligated to pay $500,000 in civil penalty to the United States. U.S. EPA estimates that the installation of the new control equipment will result in annual emission reductions of 114 tons of PM, 910 tons of HCL, 194 tons of SO2 and 254 tons of nitrogen oxides (NOx). 

Primary contact:  Farro Assadi (312) 886-1424; Additional contact:  Craig Melodia (312) 353-8870.

Clean Air Act Case Against Associated Milk Producers, Inc. Settled with CAFO.
On December 2, 2003, Region 5 filed a Consent Agreement and Final Order resolving an administrative action against Associated Milk Producers, Inc., related to violations of Section 112(r) of the Clean Air Act at the company’s Rochester, Minnesota facility. More specifically, the Region alleged in its Complaint that Associated Milk had failed to timely submit to EPA a Risk Management Plan, as required by the regulations at 40 C.F.R. Part 68. Using EPA’s Combined Enforcement Policy for Section 112(r), the Complaint proposed a penalty of $69,002. In consideration of the company’s cooperation during the pre-filing investigation and other equitable factors, Region 5 agreed to settle the case for $35,000.
Primary contact: Louise Gross, (312) 886-6844

Eighth Circuit Reverses Trial Judge’s Condition of Probation at Facility No Longer Owned by Defendant (U.S. v. Ashland, Inc., D. MN). The Eighth Circuit Court of Appeals held January 27, 2004 that a trial judge abused his discretion in ordering Ashland, Inc. to be responsible for environmental compliance at a facility which they no longer owned. Ashland pleaded guilty and was fined in 2003 arising from a series of explosions and fires at its St. Paul Park, MN refinery. The explosions, and resulting injuries, were attributed to a failure to seal a manhole as required by Clean Air Act regulations applicable to refinery sewer systems. After the explosions, Ashland, Inc. sold the refinery to a new company jointly-owned by itself and Marathon. At sentencing, the Chief Judge of the District ordered Ashland to hire a consultant to assess environmental compliance at the Minnesota refinery, despite the fact that Ashland no longer owned it. This appeal resulted. The Eighth Circuit ruled that due process prohibits making Ashland responsible for activities at a facility which they do not control, and struck that portion of the sentencing order. The decision, however, leaves intact other sentencing requirements, such as requiring Ashland to pay to upgrade the St. Paul Park sewer system to ensure that the explosions do not re-occur.

Primary contact: David M. Taliaferro (312) 886-0815

United States Files Amended Complaint and Consent Decree Resolving Clean Air Act Violations at Buckeye Egg Farm.  On February 23, 2004, the United States filed an amended complaint and lodged a consent decree with Buckeye Egg Farm, L.P., under the Clean Air Act. Under the consent decree, Buckeye will spend more than $1.6 million to install and test innovative pollution controls to reduce air emissions of particulate matter and ammonia from its three giant egg-laying facilities at Croton, Marseilles, and Mt. Victory, and pay an $880,598 civil penalty.  This settlement resolves claims filed by the Department of Justice on behalf of EPA alleging that Buckeye failed to obtain necessary air permits for these facilities and failed to comply with an order directing it to sample its air emissions.  Buckeye is the largest commercial egg producer in Ohio.  Buckeye's egg-laying operations have the capacity to house more than 12 million chickens in over 100 barns.  In 2002, Buckeye's facilities produced 2.6 billion eggs, or 4 percent of the nation's total.  Exterior exhaust fans surrounding the barns emit particulate matter and ammonia from the chickens and their wastes. Preliminary air emission tests required by EPA indicated that air emissions of particulate matter (PM) were significant - over 550 tons/year (tpy) from the Croton facility, over 700 tpy from the Marseilles facility, and over 600 tpy from the Mt. Victory facility.  Buckeye also reported ammonia emissions of over 800 tpy from its Croton facility, over 375 tpy from the Marseilles facility, and nearly 275 tpy from the Mt. Victory facility.  While Buckeye recently sold its three facilities to Ohio Fresh Eggs LLC, Buckeye must bind the purchaser to implement the environmental improvements required under the consent decree.  Buckeye remains liable for any violations.  Buckeye has agreed to: 1) install a particulate impaction system at all barns at Marseilles and Mt. Victory facilities to control dust emissions (50-70 percent reduction in dust emissions); 2) change bird variety and feed at the Croton facility to control dust emissions (50-70 percent reduction in dust emissions); 3) use an enzyme additive to control ammonia emissions at all three facilities (at least a 50 percent reduction required); 4) conduct extensive testing of all control requirements to determine efficacy of technology and emissions after installation of controls; 5) install new or additional controls if testing demonstrates projected emissions reductions are not achieved; and if emissions are not reduced below 250 tons per year, 6) apply for any required permits prior to termination of the consent decree.  This is Region 5's first Clean Air Act case regarding a confined animal feeding operation.

Primary contact: Mary McAuliffe, 312-886-6237;
additional contact: Kevin Vuilleumier, 312-886-6188

EPA enters Consent Agreement and Final Order with Jessup Manufacturing resolving self-disclosed violation of the Clean Air Act.  On February 3, 2004, the Regional Administrator signed a Final Order resolving self-disclosed violations of the Clean Air Act (the Act) by Jessup Manufacturing (Jessup) at its Lake Bluff, Illinois facility. Specifically, Jessup performed environmental audits at its facilities in Lake Bluff and McHenry, Illinois. Violations were only found at the Lake Bluff facility. Under the Consent Agreement and Final Order (CAFO), based on the provisions of EPA's Self-Disclosure Policy, Jessup will not have to pay a civil penalty.  Jessup has agreed to conduct annual audits of its Lake Bluff facility to ensure compliance with environmental regualtions. This action was commenced and concluded through the CAFO.

Contact: Cynthia King, 312-886-6831.

The United States lodges Consent Decree with Dominick’s Foods, L.L.C. resolving violations of the Clean Air Act.  On January 21, 2004, the United States lodged a Consent Decree and simultaneously filed a Complain against Dominick's Finer Foods, L.L.C. (Dominick's) for violations of the stratospheric ozone requirements of the Clean Air Act at 29 stores in the Chicagoland area.  Under the Consent Decree, Dominick's has agreed to: retrofit any refrigerant appliance that use ozone-depleting substances; build new stores that only use non-ozone-depleting substances; evaluate the performance of the 29 stores in the EPA Energy star program and will pay a civil penalty of $85,000.

Contact: Cynthia King, 312-886-6831.

EPA enters Consent Agreement and Final Order with Superior Aluminum Alloys, LLC resolving violations of the Clean Air Act.  On August 5, 2003, the Regional Administrator signed a Final Order resolving Clean Air Act violations by Superior Aluminum Alloys, LLC (Superior) located in New Haven, Indiana.  Specifically, Superior violated certain requirements of the National Emission Standards for aluminum production facilities, 40 C.F.R. Part 63, Subpart RRR.  Under the Consent Agreement and Final Order (CAFO), Superior will pay a civil penalty of $33,550 and will implement a Supplemental Environmental Project (SEP) at its facility.  As a SEP, Superior has agreed to install a recuperator at its scrap dryer that will result in a reduction of nitrogen oxide emissions and natural gas usage.  This action was commenced and concluded through the CAFO.

Contact: Cynthia King, 312-886-6831.

The United States, the State of Wisconsin and Murphy Oil USA, Inc. enter into an agreement on Stipulated Penalties.  Region 5 and the State of Wisconsin have entered into an agreement with Murphy Oil USA, Inc., resolving stipulated penalties for the period from March 1, 2003 through and including December 31, 2003.  These stipulated penalties arise from a Consent Decree entered in the Western District of Wisconsin on March 19th, 2002. Murphy Oil will pay $250,000 for all reported failures to comply with the sulfur dioxide (SO2) emission limitations for the Sulfur recovery unit at the Superior Refinery as set forth in the Consent Decree.

Primary Contact: Jose C. de Leon, 312-353-7456;
additional contact: Donald Law, 312-886-6024

Region 5 files a Consent Agreement and Final Order to commence and conclude case against Southwest General Health Center, Middleburg Heights, Ohio. On March 31, 2004, Region 5 filed a Consent Agreement and Final Order (CAFO) simultaneously commencing and concluding an administrative penalty action against Southwest General Health Center for violations of the Federal Plan Requirements for Hospital/Medical/Infectious Waste Incinerators (HMIWI), 40 CFR Part 62, Subpart HHH. The CAFO requires Southwest General Health Center (Southwest) to pay a penalty of $12,500, and perform a supplemental environmental project (SEP) involving completion of a Community Mercury Thermometer Exchange. The SEP involves targeting 11 communities surrounding the hospital with advertisements encouraging participation in the thermometer exchange and then conducting the exchange on two weekends. The cost of the SEP is estimated at $43,816 and will be required to exceed $37,500. On March 31, 2003, Region 5 issued a Finding of Violation for the alleged violations of the dioxin/furan emission standard for medium intermittent HMIWIs. In response to the FOV, Southwest attempted to make changes to its incinerator and, when those changes were unsuccessful in achieving compliance, permanently shut down its incinerator. As a result of Southwest’s cooperation, good faith efforts to comply, non-profit status, and willingness to perform the SEP, Region 5 determined that it was appropriate and consistent with the penalty policy to mitigate its planned proposed penalty of $50,645 to a settlement penalty of $12,500 and performance of the SEP. For more information regarding HMIWIs, please go to: http://www.epa.gov/ttn/atw/129/hmiwi/rihmiwi.html

Contact: Mony Chabria, 312-886-6842

Region 5 Signs a Consent Agreement and Final Order with BP Chemicals, Inc.  On September 29, 2003, Region 5 issued a two-count administrative complaint against BP Chemicals, Inc. (BPC) for violations of the Prevention of Significant Deterioration (PSD) requirements at 40 C.F.R. § 52.21(i) that were incorporated into the Ohio State Implementation Plan and the New Source Performance Standards at 40 C.F.R. § 60.44e(b) at its chemical manufacturing plant in Lima, Ohio. More specifically, the Region alleged that BPC began construction of its butanediol manufacturing plant 15 days prior to the effective date of the final PSD permit in Count I and discharged gases from its absorber off-gas incinerator that contained nitrogen oxides (NOx) in excess of the emission limit prescribed by 40 C.F.R. § 60.44e(b) from March 19, 1999 through November 24, 2001(101 days) in Count II. The complaint includes a proposed penalty of $156,200. On December 17, 2003, the State of Ohio (Ohio) and BPC entered into an agreement, known as a consent order, resolving, among other things, violations of NOx emission limits that are substantially the same as the violations alleged in Count II of the Region’s complaint. In consideration of this consent order, the Region has agreed to withdraw Count II of its complaint and to mitigate the proposed penalty from $156,200 to $48,400. In consideration of BPC’s cooperation with U.S. EPA and litigation risks, the Region has agreed to mitigate the penalty of $48,400 to $30,000. The Consent Agreement and Final Order (CAFO) was signed by the Acting Regional Administrator on May 4, 2004.

Contact: Christine Liszewski, primary contact 312-886-4670; Kevin Vuilleumier, additional contact 312-886-6188

United States District Court for the District of Minnesota upholds EAB decision in Lyon County Matter. On June 7, 2004, the United States District Court for the District of Minnesota issued a decision affirming the Environmental Appeals Board’s (EAB’s) April 1, 2002 Final Decision and Order in the Matter of Lyon County Landfill, Lynd, Minnesota. The Lyon County matter may be the first administrative action involving the asbestos NESHAP for active waste disposal sites, published at 40 C.F.R. § 61.154. The case also involves the exercise of a waiver under Clean Air Act Section 113(d)(1) with regard to the time-frame for brining an action administratively. Finding jurisdiction to review whether EPA acted within the scope of authority granted under Clean Air Act 113(d)(1) in issuing its waiver, the court upheld EPA’s interpretation of the phrase “longer period of violation” in 113(d)(1) to refer to the time between the first alleged date of violation and the administrative action’s commencement. The court also upheld each of the EAB’s rulings on liability and penalty. The court deferred to the Agency’s interpretation of the waiver provision as a permissible construction of the statute, and gave controlling weight to the Agency’s reading of its own regulations. Finding substantial evidence in the record and deferring to the EAB’s reading of the regulations, the court, among other things, rejected County arguments that RACM had to be friable, that ACWM did not include RACM at active waste disposal sites, that EPA had to establish a threshold amount of material at the waste disposal site, that EPA had to trace ACWM to a particular regulated source, that there were no visible emissions, and that EPA had to sample an empty labeled bag; and found no abuse of discretion in the use of the Asbestos Demolition and Renovation Civil Penalty Policy as guidance for assessing a penalty for the active waste disposal site violations, or the assessment of a penalty based on the total amount of ACWM received by the Landfill from May 2, 1994 to July 21, 1994, in the absence of evidence demonstrating that some of the ACWM was properly handled. The District Court affirmed the EAB’s Final Decision and Order assessing the EAB’s penalty, in the amount of $18,800.

Contact Maria Gonzalez, primary contact, (312) 886-6630;
Andre Daugavietis, secondary contact, (312) 886-6663).

Packaging Corporation of America, Tomahawk, Wisconsin, implements alternative control technology.   On June 14, 2004, a direct final rule, developed by Region 5, went into effect that allows Packaging Corporation of America’s (PCA), Tomahawk, Wisconsin, semi-chemical pulp and paper mill to implement an alternative control technology in lieu implementing the control technology prescribed by the Pulp and Paper Industry “National Emissions Standards for Hazardous Air Pollutants” NESHAP.  In lieu of incinerating the HAPs from the air stack of the low volume, high concentration (LVHC) system (as contemplated by the NESHAP), PCA will condense the HAPs from the LVHC system and treat them via biodegradation in the Tomahawk Mill’s anaerobic wastewater treatment system.  By doing so, PCA will achieve a greater than five-fold increase in HAP destruction over what would have been achieved through compliance with the Pulp and Paper Industry NESHAP. This site-specific rule is an important achievement under the Joint State/EPA Agreement to Pursue Regulatory Innovation. In that agreement, EPA and senior state officials jointly committed to encourage new and innovative approaches to improving the nation’s environment. The direct final rule provides PCA with significant cost savings since the facility will not need to install a thermal oxidizer, and yet achieves greater environmental benefits than what would have been achieved through compliance by the Pulp and Paper Industry NESHAP.

In the course of preparing its Tomahawk, Wisconsin facility to comply with the soon-to-be effective Pulp and Paper Industry NESHAP, PCA discovered that compliance with NESHAP standard would result in only a slight reduction of HAP emissions. PCA proposed to WDNR that, in lieu of incinerating the gases from the LVHC system as required by the NESHAP, the facility be allowed to condense the gasses and biologically treat them in its anaerobic wastewater treatment system. PCA believed, and the Office of Air Quality and Planning Standards (OAQPS) confirmed, that anaerobic treatment of the foul condensates could potentially achieve a 6-fold increase in HAP reduction over what would have been achieved through compliance with the NESHAP. The WDNR subsequently proposed the alternative treatment technology project under the ECOS program. With Region 5's assistance, WDNR and PCA finalized an Environmental Cooperative Agreement. Region 5 thereafter developed compliance parameters and a site-specific rule implementing the project.

Primary contacts: Eileen L. Furey 312-886-7950; Eaton Weiler 312-886-6041.

Region 5 files a combined Administrative Complaint and Consent Agreement with Rose Acre Farms, Seymour, Indiana.  On April 28, 2004, Region 5 simultaneously filed an administrative complaint and Consent Agreement and Final Order resolving violations of Sections 502(a) and 503(c) of the Clean Air Act (CAA), 40 C.F.R.§§70.5 and 70.7 and the Indiana State Implementation Plan (SIP), for failure to apply for and obtain a CAA Title V permit and failure to obtain Indiana construction and operating permits. Rose Acre Farms will pay a penalty of $28,225. Rose Acre Farms will also implement a Supplemental Environmental Project (SEP) valued at $232,000. This SEP consists of the installation of five wet cyclone scrubbers at various points in Rose Acre Farms’ soybean oil extraction process. This settlement will promote greater awareness of permitting requirements and provide for greater emission control at the Rose Acre Farms Seymour facility.

Contact Joanna Glowacki, Associate Regional Counsel, primary contact 312-353-3757, Erik Hardin, Air and Radiation Division, 312-886-2402.

Region 5 issues Clean Air Act Notice of Violation/Finding of Violation to Lesaffre Yeast Corporation.  Region 5 issued a Notice of Violation (NOV)/Finding of Violation (FOV) to Lesaffre Yeast Corporation of Milwaukee, Wisconsin on June 24, 2004. The NOV/FOV alleges that Lesaffre violated the Wisconsin State Implementation Plan and Section 502 of the Clean Air Act by exceeding emissions limitations for VOCs at a fermenter during dozens of fermentation batches from 1999-2003. This action is significant because the Lesaffre facility is one of the largest sources of airborne pollutants in Wisconsin. The NOV/FOV offers Lesaffre the opportunity to confer with EPA regarding the alleged violations.

Contact: Catherine Garypie, Associate Regional Counsel 312/886-5825;
Manoj P. Patel, Environmental Engineer, 312/353-3565

Region 5 issues Administrative Complaints to Abbyland Foods, Inc., and Schoep’s Ice Cream Company, Inc., for Violation of Clean Air Act Section 112(r). Region 5 initiated these enforcement actions on June 18, 2004. The Complaints allege that Abbyland Foods, Inc. of Abbotsford, Wisconsin and Schoep’s Ice Cream Company, Inc. of Madison, Wisconsin violated Section 112(r) of the Clean Air Act by failing to submit Response Management Plans (RMPs). In accordance with Section 112(r) of the Clean Air Act, EPA promulgated regulations at 40 CFR Part 68 to prevent accidental releases of regulated substances and minimize the consequences of those releases that do occur. The RMP regulations apply to all stationary sources that contain more than a threshold quantity of a regulated substance, and require the owner or operator of a regulated facility to develop and implement an RMP. Anhydrous ammonia is a “regulated substance.” An RMP should have been submitted by Abbyland since the facility was first over the threshold quantity for anhydrous ammonia in Spring 2001. An RMP should have been submitted by Schoep’s on the initial reporting date of June 21, 1999 since the facility was first over the threshold quantity for anhydrous ammonia in February 1993. Each Complaint seeks a penalty of $30,000.

Contact: Catherine Garypie, Associate Regional Counsel 312-886-5825;
Bob Mayhugh, Compliance Officer, 312-886-5929

Region 5 files a Consent Agreement and Final Order to commence and conclude case against Aexcel Corporation, Mentor, Ohio. On September 28, 2004, Region 5 filed a Consent Agreement and Final Order (CAFO) simultaneously commencing and concluding an administrative penalty action against Aexcel Corporation for violations of the National Volatile Organic Compound (VOCs) Emissions Standards for Architectural Coatings, 40 CFR Part 59, Subpart D. VOCs are contaminants that evaporate into the aireasily. The CAFO requires Aexcel to pay a penalty of $20,000 and complete a Supplemental Environmental Project (SEP) costing $51,000. Aexcel’s SEP involves reformulating architectural coating products such that they result in a reduction of 25,000 pounds of VOCs per year (based upon 2003 sales of products replaced). On March 29, 2004, Region 5 issued a Finding of Violation (FOV) to Aexcel for allegedly improperly labeling containers of architectural coatings and exceeding the VOC content limits for certain coatings. In response to the FOV, Aexcel modified its labels to contain the required information, discontinued the sale of some coatings, and has made payments of past due VOC exceedance fees. These efforts remedied the violations. As a result of Aexcel’s cooperation, good faith, and other factors as justice may require, Region 5 determined that it was appropriate and consistent with the penalty policy to mitigate its planned proposed penalty of $87,306 to a settlement penalty of $54,567. Region 5 further determines that it was appropriate and consistent with the SEP Policy to mitigate the settlement penalty to $20,000, in light of the commitment to perform the SEP.
Contact: Mony Chabria, 312-886-6842.

Region 5 files a Consent Agreement and Final Order to commence and conclude case against Mule-Hide Products Co., Inc., Beloit, Wisconsin. On September 24, 2004, Region 5 filed a Consent Agreement and Final Order (CAFO) simultaneously commencing and concluding an administrative penalty action against Mule-Hide Products Co., Inc., for violations of the National Volatile Organic Compound (VOC) Emissions Standards for Architectural Coatings, 40 CFR Part 59, Subpart D. VOCs are contaminants that evaporate into the air easily. The CAFO requires Mule-Hide to pay a penalty of $22,000. On March 29, 2004, Region 5 issued a Finding of Violation (FOV) to Mule-Hide for allegedly failing to submit an initial notification report and improperly labeling containers of architectural coatings. In response to the FOV, Mule-Hide submitted an initial notification report and began providing required information on their product labels using stickers. These efforts remedied the violations. As a result of Mule-Hide’s cooperation, good faith, and other factors as justice may require, Region 5 determined that it was appropriate and consistent with the penalty policy to mitigate its planned proposed penalty of $32,500 to a settlement penalty of $22,000.

Contact: Mony Chabria, 312-886-6842.