Region 5 - Office of Regional Counsel

Resource Conservation and Recovery Act (RCRA)

Brenntag Great Lakes
Chevron Environmental Management Company
Northshore Mining, Silver Bay Minnesota
Republic Engineered Products, Inc.
Valmont Coatings, Inc., d/b/a/ Valmont Applied Coating Technology

Region 5 files Consent Agreement and Final Order with Valmont Coatings, Inc., d/b/a/ Valmont Applied Coating Technology.  On December 11, 2003, Region 5 and Valmont Coatings, Inc., d/b/a/ Valmont Applied Coating Technology (Valmont), entered into a consent agreement and final order (CAFO) (pursuant to Rules 22.13(b) and 22.18(b) of the Consolidated Rules of Practice simultaneously commencing and concluding EPA’s action) resolving EPA’s claims that Valmont had violated certain provisions of the Federal Resource Conservation and Recovery Act (RCRA) and Minnesota’s hazardous waste rules.  In the CAFO, Valmont agrees to pay a civil penalty of $35,310, which is 100% of the amount claimed by EPA in its pre-filing negotiations.  The particular Valmont facility at issue in this matter closed after the violations were discovered during an EPA inspection.  Accordingly, there are no compliance issues in this matter.
Primary contact:  Jeffrey A. Cahn, 312-886-6670;
Additional contact:  Michael Valentino, 312-866-4582.

Region 5 signs a Combined Complaint and Consent Agreement with Northshore Mining in Silver Bay, Minnesota.  Region 5 initiated prefiling discussions on this matter on September 30, 2003. The proposed penalty was $41,305.  On February 4, 2004, Region 5 signed a combined complaint and consent agreement with Northshore Mining (NSM) to settle violations of the Resource Conservation and Recovery Act (RCRA) regulations at 40 C.F.R. Parts 260 through 279 and the corresponding Minnesota regulations at Minnesota Rules Parts 7045.0001 et seq. that occurred at its facility located at 10 Outer Drive, Silver Bay, Minnesota. NSM has agreed to pay a penalty of $37,175.

Primary contact: Nidhi O’Meara (312) 886-0568;
additional contact: Graciela Scambiatterra (312) 353-5103.

U.S. EPA finalizes voluntary Performance Agreement with Chevron Environmental Management Company.  On March 4, 2004, U.S. EPA finalized a voluntary performance agreement with Chevron Environmental Management Company for clean-up of contaminated soils and sludges at Chevron’s, previously Gulf Western’s, refinery. The clean-up agreement embodies Chevron’s commitment to remove and dispose the refinery’s remaining contaminated soils and sludges at a permitted hazardous waste disposal facility in Roachdale, Indiana. Under the voluntary performance agreement, Chevron will complete the clean-up of contaminated soils and sludges at the facility. The five pipelines that conveyed Chevron’s fuel products to its dock on the Ohio River, two islands owned by Chevron in the Great Miami River through which these pipelines ran, and its former dock on the Ohio River are not addressed by this Performance Agreement.  Ultimately, Chevron plans to transform the former refinery into a mixed use development consisting of recreational parkland, a nature area, and a commercial/ light industrial zone.

The Chevron refinery covers approximately 250 acres, and is situated in Hooven, Ohio, on the Great Miami River approximately 20 miles west of Cincinnati, and 3 miles north of the Ohio River. The facility operated as a refinery producing various petroleum-based fuels from before WWII until approximately 1987.  The facility also includes a 5-acre, former land farm situated on a hill above the Town of Cleves, Ohio to the west of the 250-acre refinery. Pursuant to a May ‘93 U.S. EPA RCRA Section 3008(h) Administrative Order on Consent (AOC), Chevron investigated and has already remediated most of the 44 solid waste management units and areas of concern at the former refinery.

This RCRA facility is noteworthy because U.S. EPA’s May ‘93 RCRA Section 3008(h) corrective action consent order with Chevron was the first AOC in the country to utilize RCRA corrective action authority to treat petroleum hydrocarbons in groundwater. Since 1993, Chevron has been pumping contaminated groundwater and either recovering petroleum hydrocarbons for re-sale as fuel, or treating petroleum hydrocarbon-contaminated groundwater. This aspect of the RCRA 3008(h) interim correction action AOC will continue for the foreseeable future. A final groundwater remedy is planned for later in 2004. The soils and sludges clean-up pursuant to the performance agreement is expected to last 3 to 4 years. Chevron estimates the value of the work to be done cleaning up soils and sludges to be $24 million.

Primary contact: Jerome Kujawa 312-886-6731.

Region 5 issues exemption from RCRA land disposal restrictions to Environmental Disposal Inc.’s (EDS’s) petition for 2 deep injection wells located in Romulus, Michigan.  EDS’s petition for an exemption was based on a no migration demonstration under RCRA and the regulations at 40 CFR § 148.20(a)(1)(i). This matter is extremely controversial not only because it involves the first commercial hazardous waste injection well in Michigan but also because the State has issued a permit to Sunoco Partners Marketing & Terminal LLC (SPMT) that allows SPMT to extract brine from the injection zone of the EDS wells.  Extraction from the injection zone would draw up injected hazardous waste. Given the conditions in the State permit, as further conditioned by proceedings and action on that permit, and the impact of EDS’s injection, the Region has a firm belief that SPMT will not extract from the injection zone if EDS begins injecting into that zone.  When EPA issued its notice of intent to grant the exemption in November 2002, the State had denied SPMT’s application for an extraction well permit, and EPA explicitly did not consider the proposed extraction.  After the State granted an extraction well permit to SPMT, EPA took additional comment on the permit until October 6, 2003.

The Region issued its decision to grant the exemption on March 16, 2004. It has posted this decision as well as a response to comments on the Region 5 website at http://www.epa.gov/region5/water/uic/uicpub.htm; and will be publishing its decision in the Federal Register. The decision is effective March 16, 2004. Congressman Knollengburg asked about this determination at a budget hearing held on March 4, 2004. The Region has also been responding to requests for correspondence with EDS and SPMT and internal communications submitted by Congressman Dingell.

Primary contact: Maria Gonzalez, Office of Regional Counsel 312-886-6630.

ALJ Charneski issues initial decision in Brentag Great Lakes (MILSOLV) RCRA Administrative Case. On June 2, 2004, Administrative Law Judge Carl C. Charneski issued an Initial Decision in the matter of Brenntag Great Lakes LLC (f/k/a Milsolv Minnesota Corp.) (Docket No. RCRA-05-2002-0001). The ALJ found Milsolv liable for failing to comply with authorized Minnesota hazardous waste permit requirements, as alleged by the Region, and assessed a civil penalty amount of $175,000. The assessed amount includes an assessment of $92,258 as the economic benefit of Respondent’s failure to obtain the required hazardous waste permits from the county and state regulatory authorities (that dollar amount represented the state and county permit fees Milsolv should have paid as run through the Agency’s BEN program). ALJ Charneski was persuaded by the expert testimony of NEIC engineer Barrett Benson that the hazardous used and reprocessed isopropyl alcohol (IPA) solvents at issue were “spent materials” and not “co-products.” The initial decision finds that the violation of failure to have a permit “was a moderately serious one,” and “the hazardous waste facility permitting requirements of RCRA are important and non-compliance with them is no small matter,” thus supporting Agency ‘harm to the program’ penalty arguments. The ALJ considered only the two statutory penalty criteria of the Resource Conservation and Recovery Act (RCRA) Section 3008(a)(3) (seriousness of the violation and good faith efforts to comply), and his initial decision did not mention the RCRA penalty policy or why he deviated from the penalty policy.

On December 31, 2001, the Region filed a complaint against Milsolv under Section 3008 of RCRA. The single-count Complaint alleges failure to obtain a hazardous waste facility permit, prior to the storage and treatment of hazardous waste, in violation of Minnesota Regulation 7001.0520, Subp. 1, Item A. Under Minnesota Regulation 7001.0520, Subp. 1, Item A, no person may treat, store, or dispose of hazardous waste without obtaining a hazardous waste facility permit. The Minnesota Rule at issue provides that it is unlawful to store and to treat hazardous waste without a hazardous waste facility permit.

The waste at issue is “spent” isopropanol, which the Region alleged was a hazardous waste due to its ignitability characteristic. The Complaint at Law alleged that the isopropanol was not a by-product, but a spent material. Minnesota defines the term “spent material” as “a material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing.” Minn. Rule 7045.0020, subp. 84b (2002). The federal RCRA regulations similarly define the term “spent material.”

The 3M Company used anhydrous IPA to de-water glass fibers in a manufacturing process at an Illinois facility. In the de-watering process the IPA picked up water, becoming aqueous IPA, and was removed from the process by 3M when it was no longer effective for de-watering. 3M sold the aqueous IPA to a chemical broker, who in turn sold it to Milsolv, a chemical distributor. Milsolv removed the water from this aqueous IPA, thereby rendering back to anhydrous IPA. The Region alleged that the aqueous IPA that was stored and treated by Milsolv was a “spent material” and thereby a “hazardous waste.” It was undisputed that Respondent did not have a hazardous waste facility permit when it stored and treated the aqueous IPA.

Milsolv argued that the material at issue was a product or at least a “co-product” generated by the 3M Company, and that even if the material was hazardous waste, there was no violation because it fell under the Minnesota regulations’ exclusion for by-products of hazardous waste. However, the ALJ was persuaded by the Region’s position that co-products are generally generated from the constituents in the materials being processed, and found that “the anhydrous IPA was not a constituent of the material being processed; it was added to the glass fibers being processed for use in the process, and was subsequently removed when it was no longer effective.”

The Region proposed a civil penalty in the amount of $358,678, calculated under the RCRA penalty policy with no adjustments. The hearing in the case was held in Chicago in January 2003, and in Cincinnati in February 2003.

Contacts: Andre Daugavietis 312-886-6663;
Joseph Williams 312-886-6631.

Region 5 signs RCRA 3008(h) Administrative Order on Consent for Corrective Action with Republic Engineered Products, Inc., Canton, Ohio Republic Engineered Products, Inc. (“REP”) has agreed to conduct corrective action to address hazardous wastes or constituents at its facility, located at 2633 Eighth Street N.E., Canton, Ohio, under the terms of a “streamlined” Administrative Order on Consent (“AOC”) issued by Region 5 on August 2, 2004, pursuant to Section 3008(h) of RCRA, 42 U.S.C. § 6928(h). REP operates a mini-mill which produces steel bar products. REP acquired the facility from Republic Engineered Products, LLC (“REP LLC”) in December, 2003, as a result of a U.S. Bankruptcy Court sale order issued during REP LLC’s bankruptcy. REP LLC itself had acquired the facility from Republic Technologies International, LLC (“RTI”), which is also bankrupt. The mini-mill facility, and adjacent property not owned by REP, were subject to a previous corrective action AOC signed in 1999 with RTI. This new streamlined, performance-based AOC requires REP to, among other things, demonstrate by August 1, 2006, that human exposures to contamination at its facility are under control and that migration of contaminated groundwater is stabilized, and to conduct any final corrective measures necessary to protect human health and the environment.

Primary Contact: Kevin Chow, (312) 353-6181;
Additional Contact: Michelle Kaysen-Majack, (312) 886-4253.