Region 5 - Office of Regional Counsel

Clean Water Act (CWA)

Chaffee Excavating
Courneyor, Paul d/b/a Courneyor Septic Services
Fujicolor Processing Inc.
Indiana Department of Environmental Management
Minden Bog, Michigan

Court of Federal Claims Dismisses Takings Claims Filed Against EPA and Corps Relating to Michigan Peat CWA Section 404 Permitting Matter for the Minden Bog, Michigan.   On November 13, 2003, the Court of Federal Claims dismissed all five counts of a takings action brought by Bay-Houston Towing Company (Bay-Houston)against EPA and the Army Corps of Engineers (Corps) in connection with the federal Clean Water Act (CWA), section 404 enforcement and permitting activities, for Bay-Houston's 2800-acre Minden Bog property in Michigan. On approximately 950 acres of the property, Bay-Houston had mined peat for years without a CWA section 404 permit. In 1998, EPA filed an enforcement action seeking penalties and injunctive relief consisting of reclamation and restoration of those 950 acres (although the district court found Bay-Houston liable for many section 404 violations, the court decided not to assess any penalties and has stayed consideration of injunctive relief). The balance of the property is unmined. Although the State of Michigan administers the CWA section 404 permit program, because the state was unable to issue a section 404 permit that met EPA's concerns, and in 1997 actually issued a state wetlands permit allowing peat mining on most of the entire 2800-acre property, the Corps became the federal permitting authority for the Minden Bog property as of 1997. In late 1998, the Company submitted a permit application to the Corps for only the 950 historically-mined acres.

In its takings action, the Bay-Houston alleged that both the 950-acre parcel and the balance of its property had been “taken” under either a categorical or severe diminution taking theory, and alleged a temporary taking. The court found that none of the claims were ripe: a) the 950-acre parcel is still the subject of a Corps permitting process; b) the Corps as the federal permitting authority has never made a final permitting decision on the undisturbed acreage, nor had the opportunity to do so (when the state wetlands permit was issued, the state was not then acting as the federal permitting authority); and, c) no temporary taking arose because the permit process neither has been extraordinarily lengthy nor have the federal agencies acted in bad faith.  The court also rejected the Bay-Houston's arguments that applying to the Corps for permission to mine the undeveloped acres would be "futile": while the court recognized that the federal government places a high ecological value on the Minden Bog property and wants to minimize the extent of peat mining, the court did not have sufficient evidence to conclude that the Corps would refuse to allow peat mining and associated discharges on all of the undisturbed acreage.

Contact: Jacqueline Miller, Multi-Media Branch II, (312) 886-7167.

Region 5 Approves Indiana E. Coli TMDL for Trail Creek.  In an effort to achieve the Clean Water Act goal of “fishable, swimmable” waters, Section 303(d)of the Clean Water Act, and U.S. EPA’s implementing regulations at 40 C.F.R. Part 130, the EPA requires states to develop Total Maximum Daily Loads (“TMDLs”) for pollutants in impaired waters. On March 1, 2004, the Region approved the TMDL submitted to U.S. EPA by Indiana Department of Environmental Management to address E. coli levels in Trail Creek, an impaired water in Northwest Indiana.  The TMDL establishes the maximum daily load of E. coli coming from point and non-point sources at which the Creek still meets the applicable water quality standard. The Region’s review ensures that the TMDL and its supporting documentation meet statutory and regulatory requirements. (Double click TMDL's for more information)

Contact: Erik Olson, 312-886-6829;
additional contact: David Werbach, 312-886-4242

Region signs CAFO settling Clean Water Act case. On June 16, the Acting Regional Administrator signed a Consent Agreement and Final Order, settling In the Matter of Paul Cournoyer, d/b/a Cournoyer Septic Services, Docket No. CWA-05-2003-0011. The CAFO requires Mr. Cournoyer to certify that he is in compliance with federal regulations concerning land disposal of domestic septage and to pay a $250 fine. On April 15, 2003, EPA filed an administrative complaint against Mr. Cournoyer, who was doing business as Cournoyer Septic Services in Pittsville, Wisconsin. The complaint alleged that Mr. Cournoyer violated the Clean Water Act by failing to comply with federal regulations concerning land disposal of domestic septage. Mr. Cournoyer was subsequently discharged in bankruptcy under Chapter 7. The penalty amount in the CAFO reflects Mr. Cournoyer’s limited ability to pay a penalty.

Primary contact - Timothy Thurlow, Associate Regional Counsel, 312-886-6623.

Region 5 enters a Consent Agreement and Final Order resolving an administrative CWA against Fujicolor Processing, Inc., Crawfordsville, Indiana.  On November 6, 2003, Region 5 filed an administrative complaint against Fujicolor Processing, Inc. (Fuji), alleging violations of the local pretreatment standards for silver, as set forth in its industrial wastewater pretreatment permit, issued by the City of Crawfordsville, Indiana’s publicly own treatment works. The complaint sought a penalty of $85,000. Prior to Fuji’s filing an answer, the parties agreed to settle the matter by a Consent Agreement and Final Order filed with the Regional Hearing Clerk on May 28, 2004. The settlement required Fuji to certify that it is full compliance with the CWA, 33 U.S.C. § 1311 et seq., and the regulations promulgated thereunder at 40 C.F.R. Part 403, and to pay the entire civil penalty of $85,000.

Contact: Susan Tennenbaum, Associate Regional Counsel at 312-886-0273

Region 5 issues CWA 309(a) Administrative Compliance Order to Chaffee Excavating, Vanderbilt, MI On August 20, 2004, Region 5 issued an administrative Findings of Violation and Order for Compliance (“Compliance Order”) under Section 309(a) of the Clean Water Act (“CWA”), 33 U.S.C. § 1319(a), to Chaffee Excavating, a septage waste hauler located at 477 East Thumb Lake Road, Vanderbilt, Michigan, requiring Chaffee Excavating to comply with an information request issued by Region 5 on May 6, 2004, under Section 308 of the CWA, 33 U.S.C. § 1318, relating to Chaffee Excavating’s compliance with the domestic septage land application requirements set forth at 40 C.F.R. Part 503. Chaffee Excavating refused to submit the requested information, challenging U.S. EPA’s authority to issue information requests on numerous grounds and returning a copy of the information request with the phrase “Refused for Cause Without Dishonor” handwritten on each page. The parties subsequently engaged in correspondence, but Chaffee Excavating maintained its challenge to U.S. EPA’s jurisdiction and still refused to provide the requested information. The Compliance Order resulted. Section 309(a)(4) of the CWA requires U.S. EPA to provide Chaffee Excavating with an opportunity to confer before the order becomes effective.

Primary Contact: Kevin Chow, (312) 353-6181; Additional Contact: Valdis Aistars, (312) 886-0264.