Region 5 - Office of Regional Counsel

Clean Water Act (CWA)

Chaffee Excavating
Courneyor, Paul d/b/a Courneyor Septic Services
Degussa Initiators LLC (August 03, 2005)
Degussa Initiators, LLC (September 23, 2005)
Fujicolor Processing Inc.
Indiana Department of Environmental Management
Lake Erie Iron and Metal Company, Inc., et al.
Minden Bog, Michigan
Minnesota Center for Environmental Advocacy
Northern Indiana Public Service Company (NIPSCO)
Schrum, Jeffery
Sockness Septic Service
Wood River, Illinois

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.

On November 24, 2004, U.S. EPA Issued a Clean Water Act Section 311 (OPA) Administrative Order on Consent for the Bowman Creek (3) Oil Spill Site, to the Northern Indiana Public Service Company (NIPSCO), for Performance of a Removal Action and Cost Reimbursement at the Bowman Creek (3) Site in South Bend, Indiana (St. Joseph County). This AOC requires NIPSCO to perform removal actions and to reimburse U.S. EPA and the U.S. Coast Guard for oversight costs at the Bowman Creek (3)(South Bend, St. Joseph County, Indiana) Oil Spill site.  NIPSCO is required to address and remove all oil and oily-like substances entering Bowman Creek as a result of coal tar and other petroleum-related discharges from the upstream NIPSCO South Bend, IN facility. Pursuant to the Order, under the direction of a U.S. EPA on-scene coordinator and to the extent necessary to abate an imminent and substantial threat to the public health or welfare at Bowman Creek, NIPSCO will address the ground and surface water, soils, and creek contamination from the Bowman Creek (3) Oil Spill Area.  NIPSCO is currently addressing long-term source control matters at its facility through the Indiana Department of Environmental Management voluntary clean-up program.

Bowman Creek is a tributary of the St. Joseph River in northern Indiana and a navigable water of the United States under the CWA. Bowman Creek passes through South Bend, IN. In February 2000, a release of diesel oil from the area of the Grand Trunk Western Railroad (GTWR) facility adjacent to the north bank (and downstream from the current Site) of Bowman Creek prompted a State of Indiana investigation and referral to US EPA. US EPA negotiated and issued a CWA Section 311 AOC to GTWR in March 2000 (Bowman Creek Site 1). The GTWR work was completed in 2002, except for oversight and maintenance (Bowman Creek Site 2) which is on-going. At the conclusion of its removal work, GTWR conducted a study and reported to U.S. EPA that an additional source of petroleum discharge to Bowman Creek was discernible from an upstream source. Follow up investigation by U.S. EPA determined that NIPSCO was responsible for the upstream contamination. In Spring 2004, U.S. EPA began formal negotiations with NIPSCO in order to address the oil discharge. An AOC was negotiated, and issued on November 24, 2004.
Primary Contact: Thomas Turner, Associate Regional Counsel, 312-886-3337.

Region 5 enters into a Consent Agreement and Final Order with LEIMCO Development Company, Ltd. et al., Painesville, Ohio - On June 5, 2003, Region 5 issued Findings of Violations and a Compliance Order to Respondents Lake Erie Iron & Metal Company, Inc., Martin Hathy and Richard M. Osborne, Sr., who are owners/members of LEIMCO Development Company, Ltd. The Order alleged that Respondents violated Section 301 of the CWA, 33 U.S.C. §1311, by discharging pollutants into approximately 34 acres of federal jurisdictional wetlands within LEIMCO Development-owned property without either a CWA Section 404 or Section 402 permit (33 U.S.C. §§ 1344, 1342); and failing to provide all information requested pursuant to CWA Section 308, 33 U.S.C. § 1318. The violations and related circumstances supported a proposed civil penalty of $137,500. Respondents subsequently provided additional information, indicating that approximately 28.72 acres of wetlands were impacted within the LEIMCO Development-owned property. On April 22, 2005, following a public comment period, Region 5 entered into a Consent Agreement and Final Order (CAFO), resolving the violation. The CAFO requires payment of a $75,000 civil penalty; compliance with the CWA; submission of a revised after-the-fact CWA Section 404 permit application to the U.S. Corps of Engineers, Buffalo District, including a Mitigation-Replacement Plan, detailing mitigation of approximately 44 acres within a 340-acre Mitigation Site to be purchased by Respondents and third-parties; restoration and enhancement with third-parties of approximately 71 acres of the Site; and performance of a SEP, consisting of the donation of the Site to Lake County Metroparks in perpetuity with land use restrictions and restoration of biological and habitat functions for approximately 23 acres of the Site. The SEP will accomplish environmental restoration and protection by enhancing hydrological and biological conditions and habitat within the Grand River watershed. Both the LEIMCO Development-owned property and the Mitigation Site are located within the Grand River watershed.
Contact Diana Embil, Associate Regional Counsel, primary contact, 312-886-7889, or David Schulenberg, Wetlands Enforcement Coordinator, additional contact, 312-886-6680.

District Court in Minnesota Grants Motion for Summary Judgment Remanding Regional Fecal TMDL to EPA and the State. On June 23, 2005, the U.S. District Court, District of Minnesota, granted in part and denied in part as moot the Minnesota Center for Environmental Advocacy’s (MCEA) summary judgment motion challenging EPA’s approval of a regional TMDL for the Lower Mississippi River Basin for fecal coliform bacteria. The TMDL covered seven subwatersheds and 20 impaired segments. On September 30, 2003, MCEA filed the lawsuit challenging EPA’s approval of the TMDL under the APA, 5 U.S.C. § 706(2)(A). MCEA’s summary judgment motion claimed that EPA’s approval of the TMDL was arbitrary and capricious because it established a basin-wide target of 65% that would not achieve water quality standards in the most impaired segments, lacked an adequate margin of safety, and improperly included point sources (municipal storm sewers systems, CAFOs, and illicit straight pipe discharges), in the load allocation portion of the TMDL. MCEA’s motion asked the Court to remand the TMDL to EPA to re-calculate the TMDL. The State subsequently informed EPA that it intends to amend the TMDL to address many of the problems identified by MCEA, and include 25 additional impaired segments. In its reply to the summary judgment motion EPA did not oppose a remand in order to allow the State to revise the TMDL to achieve applicable water quality standards, to include an adequate margin of safety, and to assign municipal storm sewers and CAFOs to the wasteload allocation. While the Court agreed with EPA that neither the Clean Water Act nor regulations prohibit a watershed or basin-wide TMDL, it found that to the extent EPA approved a TMDL that was not set to achieve water quality standards, EPA was in error. Furthermore, the Court found that municipal storm sewers, CAFOs and illicit straight pipes are all point sources that must be included in the waste load allocation. Finally, the Court found that the margin safety issues raised by the Plaintiff moot since the State intends to revise the TMDL and margin of safety. The Court ordered the State to public notice a revised TMDL for all impaired reaches within 90 days of judgment. If the State fails to notice a revised TMDL within the 90 days, the Court ordered EPA to establish a replacement TMDL within 30 days thereafter.
Contacts: ORC, Craig Melodia (312) 353-8870; OGC, Jim Curtin

United States Files Complaint Against Degussa Initiators, LLC, and Simultaneously lodges Consent Decree in Southern District of Ohio resolving Clean Water Act violations.
On August 3, 2005, the United States filed a complaint against Degussa Initiators, LLC and simultaneously lodged a consent decree resolving violations of the Clean Water Act at Degussa’s facility in Elyria, Ohio. This action was lodged with the United States District Court for the Northern District of Ohio (Civil Action No. 1:05CV1915). The consent decree resolves numerous violations of Sections 307(d) and 308 of the Clean Water Act, 33 U.S.C. §§ 1317(d) and 1318, including violation of categorical and local pretreatment effluent limits contained in industrial user permits issued by the Elyria, Ohio publicly owned treatment works. The proposed decree provides that Degussa will pay a civil penalty of $345,203.50 and will perform a supplemental environmental project valued at $27,514. The project is the installation of a floating roof for the facility’s pretreatment equalization tank to mitigate emissions of volatile organic compounds to the ambient air. Degussa also certifies in the proposed decree that it has implemented corrective measures necessary to ensure continuous compliance with applicable effluent limits and other permit terms, and establishes stipulated penalties if noncompliance occurs in the future.

Primary Contact: Mark Palermo, ORC, (312) 886-6082; additional contact: Purita Angeles, (312) 353-5112

United States District Court for the Southern District of Ohio Enters Consent Decree Resolving CWA Violations by Licking County, Ohio
On August 31, 2005, the United States District Court for the Southern District of Ohio entered a Consent Decree resolving CWA violations by Licking County, Ohio. On July 5, 2005, the United States filed a complaint against Licking County and simultaneously lodged a consent decree resolving violations of the Clean Water Act, Civil Action No. C2-05- 661 (S.D. Ohio). No comments were received on the consent decree during the public comment period. The consent decree resolves numerous violations of the terms of the National Pollutant Discharge Elimination System (NPDES) permit for the Buckeye Lake waste water treatment plant (WWTP) and a December 12, 1994 administrative order issued by U.S. EPA. Violations include exceeding effluent limitations, bypassing or overflowing untreated wastewater, and violating the monitoring, testing and sludge management requirements of the NPDES permit. In addition, Licking County violated the sludge standards at 40 C.F.R. Part 503. The consent decree requires Licking County to pay a civil penalty of $37,500 to the United States and $37,500 to the State of Ohio. The State of Ohio is identified as a realigned plaintiff in the consent decree.

To resolve the violations identified in the complaint, Licking County installed storage basins to provide additional storage capability and reduce bypasses while a permanent solution is developed. In addition, Licking County conducted an infiltration/inflow (I/I) study and has removed the largest sources of I/I identified in the study. Licking County has also developed a corrective action plan, and will remove additional I/I sources from the sewer system, construct capital improvements and develop a preventive maintenance program. Capital improvements will include construction of the wet stream and sludge handling facilities necessary to effectively increase the rated capacity of the WWTP so that all flows reaching the headworks will receive full treatment. Improvements may include, but are not limited to, the construction of a new biological reactor, new final clarifiers, additional sludge digestion and storage facilities and associated electrical and site improvements. The consent decree requires these improvements to be fully operational by December 1, 2007.

Primary Contact: Christine Liszewski, (312) 886-4670; additional contact: Bettye Carter, (312) 886-6705.

Consent Judgment Entered in United States v. Degussa Initiators, LLC, Resolving Clean Water Act Violations at Elyria, Ohio Facililty.   On September 23, 2005, the Northern District of Ohio approved a consent decree and entered a consent judgment in a federal civil case, United States. v. Degussa Initiators, LLC. On August 3, 2005, the United States filed a complaint against Degussa Initiators, LLC and simultaneously lodged a consent decree resolving violations of the Clean Water Act at Degussa’s facility in Elyria, Ohio (Civil Action No. 1:05CV1915). The consent decree resolves numerous violations of Sections 307(d) and 308 of the Clean Water Act, 33 U.S.C. §§ 1317(d) and 1318, including violation of categorical and local pretreatment effluent limits contained in industrial user permits issued by the Elyria, Ohio publicly owned treatment works. The proposed decree provides that Degussa will pay a civil penalty of $345,203.50 and will perform a supplemental environmental project valued at $27,514. The project is the installation of a floating roof for the facility’s pretreatment equalization tank to mitigate emissions of volatile organic compounds to the ambient air. Degussa also certifies in the proposed decree that it has implemented corrective measures necessary to ensure continuous compliance with applicable effluent limits and other permit terms, and establishes stipulated penalties if noncompliance occurs in the future.
Contact: Mark Palermo: (312)886-6082; Purita Angeles: (312)353-5112.

Findings of Violation and Compliance Order issued September 19, 2005, requires an Ohio property owner to remove culverts and fill materials from waters of the United States.
On September 19, 2005, the U.S. EPA, Region 5 issued to Jeffrey Schrum a Compliance Order requiring Mr. Schrum to remove culverts and fill materials from Indian Run, a tributary of the Mahoning River. Without obtaining a permit from the Corps of Engineers, Mr. Schrum used backhoes, bulldozers and other heavy equipment to place end-to-end within Indian Run several old storage tanks with diameters of between eight and ten feet. The storage tanks act as a makeshift culvert and have a length of approximately one hundred and thirty feet. He then placed fill material on top of the storage tanks. The fill material has a depth of between six and eight feet. The Corps twice demanded that Mr. Schrum either apply for an after-the-fact permit or remove the tanks and fill material. Mr. Schrum ignored these demands. U.S. EPA made a similar demand in June 2005 which Mr. Schrum again ignored. The Order requires Mr. Schrum to submit within thirty days a plan to remove the culverts and restore Indian Run to its original condition and contours.

Contacts: Steven P. Kaiser at (312) 353-3804 (legal contact) or David Schulenberg at (312) 886-6680 (technical contact).

Region 5 issues Administrative Order, under Section 308 and 309 of the CWA to the City of Wood River, Illinois, in connection with combined sewer overflows (CSOs).
On September 29, 2005, Region 5 issued to the City of Wood River, Illinois, an administrative compliance order, pursuant to CWA section 309, based on a joint EPA-Illinois inspection of the City’s WWTP and the fact that, in recent years, the City has had many CSO events. Because a number of requested records were not available during the inspection, the administrative order also seeks information pursuant to CWA section 308. It appears that the City is not complying with all of the federal CSO nine minimum controls, including maximizing flow to the WWTP and maximizing storage of wastewaters in order to prevent CSO events. The administrative order not only directs the City to demonstrate its compliance with, and/or come into compliance with, the nine minimum controls, but also directs the City to prepare, and to submit to EPA, a long-term control plan within one year. This is the first such CWA administrative compliance order to be issued by Region 5.
Primary Contact: Jacqueline Miller, ORC, (312) 886-7167 and John Wiemhoff, Water Division, (312) 353-8546.

Region issues to Fredrick Maki of Watton, Michigan an Administrative Complaint Seeking Civil Penalties for Violations of the Clean Water Act.
On September 29, 2005, Region 5 issued to Fredrick Maki an Administrative Complaint seeking civil penalties for violations of the Clean Water Act. The Complaint alleges that on or about September 10, 2003, and on or about July 24, 2004, Maki applied to land surfaces in the Upper Peninsula of Michigan domestic septage but failed to either ensure that by alkali addition the pH of the septage remained at 12 or higher for 30 minutes with the addition of more alkali, or to incorporate the domestic septage into the soil within six hours after application to or placement on the land in violation of Section 405(3) of the Clean Water Act. The Complaint further alleges that Maki failed to develop and retain information in connection with the application of domestic septage as required by 40 CFR 503.17(B) and failed to provide information responsive to U.S. EPA’s information request in violation of Section 308(a) of the Clean Water Act. The Region has proposed a civil penalty in the amount of one-hundred thousand dollars ($100,000.00).
Contact: Steven Kaiser, ORC, (312) 353-3804.

Region 5 files Administrative Complaint against Sockness Septic Service
On September 21, 2005, Region 5 filed an Administrative Complaint under 40 CFR Part 22 against Sockness Septic Service. Sockness operates a septage collection and hauling service near Stanley, Wisconsin. EPA alleges that Sockness violated EPA’s septage regulations at 40 CFR Part 503 by failing to meet vector attraction reduction requirements and by failing to develop and maintain adequate records. The complaint proposes a penalty of $44,723.

Contacts: Chuck Mikalian, primary contact, (312) 886-2242; Valdis Aistars, secondary contact, (312) 886-0264.