Region 5 - Office of Regional Counsel

Multi-Media (multiple statutes)

Consumers Recycling
Gorman Park Properties, et al.
Edwards Oil Service Inc.
HR One Development, LLC
Ohio Power Company d/b/a American Electric Power
Perdue Farms Inc.
PPG Industries, Inc.
Southwest Landmark, Inc.
U.S. Steel Corporation

Region 5 Signs CERCLA 103 and EPCRA 304 Consent Agreement with Perdue Farms, Incorporated, Washington, Indiana.  On October 13, 2004, Region 5 filed a Consent Agreement and Final Order (CAFO) resolving Perdue Farm Inc.’s (Perdue) Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Section 103 and Emergency Planning and Community Right-To-Know Act (EPCRA) Section 304 violations. On June 14, 2004, the Region filed a Complaint against Purdue alleging its failure to immediately notify the National Response Center and the Indiana State Emergency Response Commission after releasing ammonia, a hazardous substance, at its Washington, Indiana facility. Region 5, in being consistent with the Enforcement Response Policy for EPCRA Sections 304, 311, and 312 and CERCLA Section 103, agreed to reduce the proposed penalty amount of $34,376 after taking into consideration Respondent’s immediate response to the release, cooperation throughout the enforcement process, and quick settlement of the violations. Consequently, the CAFO requires Respondent to pay a penalty of $17,876.
Contacts: Carlos Evans (312) 886-2149 and Ruth McNamara (312) 353-3193.

Region 5 files a Consent Agreement and Final Order to commence and conclude case against Southwest Landmark, Inc., Pleasant Plain, Ohio. On November 1, 2004, Region 5 filed a Consent Agreement and Final Order (CAFO) concluding an administrative penalty action against Southwest Landmark, Inc., for violations of Section 103 of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA). The CAFO requires Southwest Landmark to pay a penalty of $10,000 and complete a Supplemental Environmental Project (SEP) costing $59,328. Southwest Landmark, Inc.'s SEP involves fencing three anhydrous ammonia tank facilities to deter intrusion and vandalism of tanks (as such gave rise to the release and violation in this case). This CAFO will resolve a complaint filed on August 17, 2004, alleging that Southwest Landmark failed to immediately report a release of anhydrous ammonia to the National Response Center, State Emergency Response Commission, and Local Emergency Planning Committee. The Complaint also alleged that Southwest Landmark failed to submit written follow up reports. As a result of Southwest Landmark’s quick settlement, attitude, and litigation risk, Region 5 determined that it was appropriate and consistent with the penalty policy to mitigate its proposed penalty of $135,498.76 to a settlement penalty of $40,000. Region 5 further determines that it was appropriate and consistent with the SEP Policy to mitigate the settlement penalty to $10,000, in light of the commitment to perform the SEP.

Contact: Kevin Chow, 312-353-6181 and Mony Chabria, 312-886-6842

Judge Nissen Issues Order Dismissing Complaint in In the Matter of Consumers Recycling. On December 2, 2004, Judge Nissen issued an order dismissing the complaint in this matter based on the Bankruptcy Court’s Order accepting EPA’s claim of $129,670 as a subordinated unsecured claim. The Region had requested Judge Nissen to affirm and enter the Bankruptcy Order as resolution of the case. The Consumer Recycling case was a multi-media enforcement action alleging violations of the Clean Air Act chloroflurocarbon (CFC) requirements, the Clean Water Act Spill Prevention, Control and Countermeasures Plan (SPCC Plan) requirements and the used oil management requirements of the Resource Conservation and Recovery Act. The facility was a scrap processor. It was targeted for enforcement as a result of Region 5’s Detroit geographic initiative. The facility was located in community that was low income and minority based. The City of Detroit had received numerous complaints regarding operations of scrap processors within its borders. When inspected the facility was draining oil into a 1,000 gallon catch basin. It had twelve tanks with over 3,345 gallons of oil storage capacity. There were oil stains on the ground and run-off patterns to the street and the Detroit sewer system. It had accepted thousands of small appliances without recovering refrigerant or obtaining verification statements. It did not have any plans for the control or prevention of oil to the waterways or sewers.

Region 5 filed a five count multi-media complaint against Consumer Recycling. The Complaint sought an initial proposed penalty of $233,170 and a compliance order under RCRA. Judge Nissen on April 11, 2002 granted Region 5's request for accelerated decision as to liability on the Clean Water Act violations. He also dismissed the RCRA violations reasoning that the Respondent was not a used oil processor. He merged the violations under the Clean Air Act. On appeal the Environmental Appeals Board on January 29, 2004 affirmed Judge Nissen’s merging of the Clean Air Act violations. It reversed his dismissal of the RCRA violations and remanded the case for further proceedings. In the process of ruling on the appeal the Board provided the Complainant with very significant rulings on issues related to the administration of the Clean Air Act CFC program The Board agreed with the Region that a verification statement or contract under section 82.156(f) had to have specific information in it. It also provided significant guidance on the definition of used oil and used oil processor under RCRA.

On May 17, 2004, the U.S. Bankruptcy Court located in the Southern Division of the Eastern District of Michigan entered its order allowing EPA an unsecured general subordinated claim against the Respondent. The amount of the claim represented the full value of the Complaint as a result of the Board’s decision allowing for merger of the Clean Air Act counts and reinstating the RCRA counts. The Respondent is proceeding through Chapter 7 liquidation. It no longer owns or operates the facility. The contamination that was found at the site has been cleaned up. The Respondent most likely will not have any money to pay the unsecured creditors. The Region does not have any plans to appeal Judge Nissen’s decision.
Primary contacts, Richard Clarizio, Associate Regional Counsel (312) 886-0559 and Padma Bending, Associate Regional Counsel (312) 353-8917.

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, NIPSCO will address the ground and surface water, soils and/or creek contamination from the Bowman Creek (3) Oil Spill Area to the extent necessary to abate an imminent and substantial threat to the public health or welfare at Bowman Creek. NIPSCO is also 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 signs AOC with a Bona Fide Prospective Purchaser doing work at a Michigan foundry site.  On February 14, 2005, Region 5 entered an Administrative Order on Consent (AOC) with HR One Development, LLC. The AOC requires HR One to perform the removal action at the New Haven Foundry Site as set forth in the Region 5, September 15, 2004 Action Memorandum. In exchange, the U.S. EPA in the AOC provides HR One with a covenant not to sue for any and all civil liability for injunctive relief or reimbursement of response costs pursuant to sections 106 and 107(a) of CERCLA, contribution protection and a release from any lien under CERCLA 107(r). In 2002 the foundry operations ceased due to the bankruptcy of its owner. From the 1920's up until that time, the New Haven Foundry produced iron castings for the automotive industry. The site had been the subject of Clean Air Act, Clean Water Act and RCRA citizen suits and federal enforcement actions in the 1990's. In June of 2003, Macomb County requested assistance from U.S. EPA and Michigan Department of Environmental Quality in remediating the property. Region 5 conducted a removal site assessment in February of 2004 and then issued an Action Memorandum for the site which approved the on scene coordinator’s proposed response action at the site (including removal of drummed hazardous waste, excavation of contaminated foundry sand and securing the property) and authorized the expenditure of up to $377,352 for the removal action. HR One intends to purchase the property from the bankruptcy estate.
Contact: Marcy Toney (ORC) 312-886-3186; Bill Ryczek 312-886-7184.

United States Settles with Gorman Park Properties and Bashir Moghul Under the Residential Lead-Based Paint Hazard Reduction Act.  On March 30, 2005, the Department of Justice (DOJ), on behalf of EPA and the United States Department of Housing and Urban Development (HUD), simultaneously filed complaints and lodged consent decrees with two Minneapolis, Minnesota landlords, Gorman Park Properties and Bashir Moghul, for failing to comply with the notification requirements of the Residential Lead-Based Paint Hazard Reduction Act and the Disclosure Rule requirements at 40 C.F.R Part 745, Subpart F. Bashir Moghul also initially failed to comply with EPA’s subpoena issued under the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2692. Combined, these settlements will result in the elimination of all lead-based paint hazards in 250 apartments in Minneapolis, Minnesota; Wisconsin; and Indianapolis, Indiana.

Gorman Park Properties has completed lead-based paint inspections and risk assessments and will undertake a five-year program to eliminate lead-based paint hazards in 208 units, initially targeting the units where young children live. Gorman Park Properties will also pay a penalty of $7,500, and perform a supplemental environmental project (SEP) at a cost of $50,000 to purchase a mobile blood testing van through the Sustainable Resources Center (SRC). This mobile unit is the first of its kind in the Minneapolis-St. Paul area, and it allows SRC to reach neighborhoods where lead screening rates are low to improve blood screenings of at-risk children.

Bashir Moghul owns approximately 24 units in Minneapolis, 4 units in Wisconsin, and 14 units in Indianapolis. Several children residing in Moghul’s properties have been lead-poisoned. Moghul is required to perform risk assessments and replace all windows in his units within one year. He will completely eliminate all lead-based paint hazards within four and a half years, and will pay a penalty of $5,000.

Contact: Mary McAuliffe, Office of Regional Counsel, 312-886-6237

Court enters consent decree in United States v. Edwards Oil Service, Inc., Civil No. 05-71379 (E.D. Michigan) On June 2, 2005, the United States District Court for the Eastern District of Michigan entered a consent decree resolving violations of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. and the Clean Water Act (“CWA”), 42 U.S.C. § 1251 et seq., discovered by the Agency during a 1998 multi-media inspection. On November 10 and December 1 and 2, 1998, the United States Environmental Protection Agency conducted a multi-media inspection of the Edwards Oil Service, Inc. (“EOS”), facility located in Detroit, Michigan. At this location, EOS operates a waste treatment facility that processes used oil and hazardous waste. The most serious problem at the EOS facility is its lack of adequate secondary containment structures around its aboveground oil storage tanks and tank truck loading/unloading areas. Approximately 41 tank containment structures and 7 tank truck loading/unloading areas at the facility would not be able to contain discharged oil should a tank rupture or other mishap occur. In exchange for a covenant not to sue from the government, EOS has agreed to pay a civil penalty of $11,000 (based on ability to pay) and upgrade its facility to meet current RCRA and CWA standards. Specifically, EOS is required to modify certain secondary containment structures at its facility within one year of the effective date of the consent decree. This work includes the construction of a new secondary containment system for the facility’s largest tanks and the permanent closure of other tanks. The estimated cost of this work is approximately $700,000.
Primary contact: Rich Murawski, Assistant Regional Counsel (312) 886-6721

Region 5 files Consent Agreement and Final Order to commence and conclude case against PPG Industries, Inc., Mt. Zion, Illinois.  On August 10, 2005, Region 5 filed a Consent Agreement and Final Order (CAFO) commencing and resolving simultaneously an administrative penalty action against PPG Industries, Inc., for one violation of Section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act and four violations of Section 304 of the Emergency Planning and Community Right-to-Know Act. Specifically, PPG allegedly failed to provide timely emergency notifications and follow-up notifications to the National Response Center, State Emergency Planning Commission, and Local Emergency Planning Committee after a knowledge of a release of approximately 711 pounds of anhydrous ammonia on February 1, 2004. The CAFO requires PPG to pay a penalty of $26,064.24, and perform a Supplemental Environmental Project (SEP) involving the purchase and donation of two thermal imaging cameras and an air compressor to the Mt. Zion Fire Department. The cost of the SEP is estimated to be $46,550.  On May 3, 2005, U.S. EPA issued a Notice of Intent to File Administrative Complaint letter indicating that we were prepared to file a complaint seeking $80,543.44. During pre-filing settlement negotiations, this number was reduced to $52,353.24, based on cooperation and quick settlement. Region 5 determined that it was appropriate and consistent with the SEP and Enforcement Response policies to settle this matter for a cash penalty of $26,064.24 and performance of the SEP.

Contact: Mony Chabria, 312-886-6842.

United States Files Complaint Against United States Steel Corp. and Simultaneously Lodges Consent Decree Resolving Violations of the Clean Air and Clean Water Acts by the Former USS/KOBE Steel Co. in Lorain, Ohio   On September 21, 2005, the United States filed a complaint against United States Steel Corp. and simultaneously lodged a consent decree resolving violations of the Clean Air and Water Acts in the United States District Court for the Northern District of Ohio, Civil Action No. 1:05CV2220. The complaint alleges violations by the former USS/KOBE Steel Company at the steel plant in Lorain, Ohio which is currently owned and operated by U.S. Steel. The violations alleged in the complaint include violations of the Ohio State Implementation Plan governing the emission of fugitive dust or particulate matter and violations of the National Pollutant Discharge Elimination System (NPDES) permit. The State of Ohio seeks to intervene in the action as a plaintiff.

U.S. Steel is a successor to certain liabilities of USS/KOBE including liability for the violations alleged in the complaint. The consent decree requires U.S. Steel: (i) to comply with particulate emission limits in a permit issued by the Ohio Environmental Protection Agency pursuant to Title V of the Clean Air Act, (ii) to perform a stack test to verify compliance with applicable particulate emission limits; (iii) to comply with effluent limits in the NPDES permit applicable to the Lorain plant, (iv) to pay a civil penalty of $100,025, divided evenly between the United States and the State of Ohio, and (v) to perform a Supplemental Environmental Project involving the removal from service and disposal of up to 13 transformers containing polychlorinated biphenyls, at a cost not to exceed $294,500. Primary Contact: Christine Liszewski, 312/886-4670

Region resolves EPCRA 312 case against American Electric Power, Chesire, Ohio
On September 29, 2005, the Regional Administrator signed a Consent Agreement and Final Order (CAFO) in which the Ohio Power Company d/b/a American Electric Power (AEP) agreed to pay a penalty of $16,013 and perform supplemental environmental projects (SEPs) for violations of Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act and Section 304(a) of the Emergency Planning and Community Right-to-know Act of 1986 at its Gavin Power Plant in Cheshire, Ohio. Specifically, Region 5 alleged that on June 3, 2004, the AEP Gavin Plant released approximately 1,270 pounds of anhydrous ammonia (reportable quantity: 100 pounds) and that AEP had knowledge of the release at approximately 3:00 p.m. AEP did not notify the National Response Center of the release until 10 a.m. on June 4, 2004, or the Ohio state emergency response commission and local emergency planning committee until June 3, 2004, at 6:47 p.m. and 6:46 p.m., respectively. In performance of the SEP, AEP will install acoustic detectors on the safety relief valves of the facility's three hydrolyzers. The detectors are designed to work in conjunction with safety relief valves to protect equipment and personnel from the possibility of vessel rupture. AEP also will install 13 ammonia detectors in the hydrolyzer, urea mixing, and ammonia spool areas, which will warn employees of potential ammonia exposure if there are any system malfunctions. The total cost of the SEP is $66,745. The parties agreed that settling the matter, without further litigation, was in the public interest. The CAFO became effective on September 30, 2005.
Primary contact: Ann Coyle, 312-886-2248; secondary contact: James Entzminger, 312-886-4062