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Enforcement Action Summary FY 2005 - State of Ohio
State of Ohio
| Ohio Man Sentenced for Making False
Statements to the Ohio Environmental Protection Agency; United States
v. Valentin D. Ducu. On October, 27, 2004, Valentin
D. Ducu was sentenced for making materially false statements in violation
of 18 U.S.C. § 1001. Mr. Ducu was sentenced to one year of probation
and ordered to perform 40 hours of community service and pay a $250
fine. On July 8, 2004, Mr. Ducu was indicted for providing materially
false information to the Ohio Environmental Protection Agency when
he applied to take the state’s examination for certification
to operate one of the state’s drinking water plant facilities.
The indictment charged that Ducu falsely represented in his application
that he held a Bachelor of Science degree and was currently working
as a level II water plant operator at a drinking water plant facility. This
case was investigated, in a joint investigation, by the Ohio Bureau
of Criminal Identification and Investigation, the Ohio Environmental
Protection Agency, and U.S. EPA CID, all members of the Northeast
Ohio Environmental Crimes Task Force. Primary contact: Brad Beeson (440) 250-1761. Former Company President Charged with Clean Water Act and False Statement Violations; United States v. Christian S. Perry. On October 27, 2004, Christian S. Perry was charged in a two count indictment for illegally discharging partially treated wastewater into the City of Cleveland sewer system and lying to authorities about the disposal of hazardous waste. Mr. Perry was the President of Techniplate, Inc. (“Techniplate”), an Ohio corporation, which is a metal plating operation located in Cleveland, Ohio. As a part of the metal plating process wastewater containing zinc, a toxic pollutant, is generated by Techniplate. To limit the amount of pollutants discharged into the sewer system Techniplate treats its wastewater using a pretreatment system. A byproduct of the pretreatment process is sludge. The sludge generated by Techniplate is a hazardous waste and must be disposed of properly. The indictment charges that from November 1999, through June 2001, on numerous days, Perry knowingly bypassed the wastewater treatment system at the Techniplate facility, discharging partially treated wastewater and sludge which contained zinc, a toxic pollutant, into the City of Cleveland sewer system. The indictment further charges that on November 1, 1999, that Perry sent two false hazardous waste manifests to authorities. The waste manifests purported to show that on two different dates Techniplate used a properly licensed disposal company to transport and dispose of its hazardous waste, when, in fact, the disposal company did not receive hazardous waste from Techniplate on those dates. This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio Environmental Protection Agency, the Northeast Ohio Regional Sewer District, the Defense Criminal Investigative Service, and U.S. EPA CID, all members of the Northeast Ohio Environmental Crimes Task Force. The sentence in this case, if convicted, may be determined by the
Court after consideration of the Federal Sentencing Guidelines,
which depend upon a number of factors unique to each case, including
the defendant's prior criminal record, if any, the defendant's role
in the offense and the unique characteristics of the violation.
In all cases the sentence will not exceed the statutory maximum
and in most cases it will be less than the maximum. 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 Company Executives and Company Plead Guilty to Clean Water Act Violations; United States v. John J. Buschur, Theresa A. Buschur, and Western Ohio Metal Finishers. On January 13, 2005, John J. Buschur, Theresa A. Buschur, and Western Ohio Metal Finishers (WOMF) plead guilty to illegally discharging industrial wastewater into the Village of Minster sewer system and lying to authorities about the discharge. John J. Buschur was the President and Theresa A. Buschur was Vice-President of WOMF, an Ohio corporation, which was a metal plating operation located in the Village of Minster, Ohio. As a part of the metal plating process zinc, a heavy metal, is used. As a result, the wastewaters generated by WOMF contained zinc. The indictment charged that the defendants knowingly discharged partially treated industrial wastewater and sludge containing zinc into the Village of Minster’s sewer system. In addition the indictment also charged that the defendants falsely stated to the Ohio Environmental Protection Agency that WOMF was not discharging industrial wastewater into the sewer system. This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio Environmental Protection Agency, and U.S. EPA CID, all members of the Northwest Ohio Environmental Crimes Task Force. Contact: Brad Beeson, Criminal Enforcement Counsel (440) 250-1761 Plant Manager Pleads Guilty to Clean Water Act Violation;
United States v. Paul Vinje. On November 30, 2004, Paul
Vinje pled guilty to illegally discharging low-pH wastewater
into the City of Piqua sewer system. Mr. Vinje was the Plant
Manager of Stripco, Inc. (Stripco). Stripco was engaged in the
business of metal stripping and fabricating. The low-pH wastewater
generated from these operations is treated and discharged to
the Piqua sewer system. The information, filed November 16, 2004,
charged that on or about February 11, 2002, Mr. Vinje negligently
discharged or caused the discharge of wastewater, with a pH below
5.5, into the City of Piqua sewer system. The City of Piqua requires
that all discharges to the sewer system must have a pH between
5.5 and 11. This case was investigated, in a joint investigation,
by the Ohio Bureau of Criminal Identification and Investigation,
the Ohio Environmental Protection Agency, the City of Piqua Division
of Wastewater, and U.S. EPA CID, all members of the Dayton Environmental
Crimes Task Force. Alex Sklavenitis was the President and part owner of Olymco. Olymco is a chrome plating operation located in Canton, Ohio. As a part of the plating process chromium, a heavy metal, is used. As a result, the wastewaters generated by Olymco contained chromium. The indictment charged that the defendants knowingly discharged industrial wastewater containing chromium into Canton’s sewer system in violation of Canton’s regulations. This case was investigated, in a joint investigation, by the Ohio
Bureau of Criminal Identification and Investigation, the Ohio Environmental
Protection Agency, the City of Canton Wastewater Treatment Department,
and U.S. EPA CID, all members of the Northeast Ohio Environmental
Crimes Task Force. Contact: Erik Olson, primary contact 312-886-6829; Bruce Wilkinson, additional contact 312-886-6002 Region 5 Settles PCB Commercial Storage Case with Lamps,
Inc., d.b.a. Environmental Recycling, Bowling Green Ohio. On
February 14, 2005, EPA filed a combined Complaint and Consent
Agreement and Final Order concerning a Polychlorinate Biphenyl
(PCB) commercial storage facility in Bowling Green, Ohio, owned
and operated by Lamps, Inc., doing business as Environmental
Recycling (Lamps). Lamps, failed to keep records of daily inspections
of the facility’s PCB storage area for a period of 21 months,
as required by its PCB commercial storage permit. Lamps also
failed to submit waste manifest numbers with its 2002 annual
report to EPA, as required by EPA’s PCB regulations. In
consideration of the penalty criteria specified in TSCA, the
facts of this case, Lamp’s cooperation, and Respondent’s
prompt correction of the violations and good faith efforts to
comply with PCB requirements, EPA accepted a settlement of this
matter for $7,260. Wastewater Treatment Operator Sentenced for Illegal Discharges into the Sewer System; United States v. William N. Stewart. On February 24, 2005, William N. Stewart was sentenced for illegally discharging industrial wastewater into the Cleveland sewer system. Mr. Stewart was sentenced to 4 months in the custody of the Bureau of Prisons, to be followed by 4 months of home confinement. Mr. Stewart will be placed on supervised release for 12 months after serving his term of home confinement. Mr. Stewart was employed as the wastewater treatment operator for Barker Products, Inc. (“Barker Products”), a Cleveland company in the business of electroplating and metal finishing. As part of the plating operations Barker Products used cadmium, copper, zinc, and chromate. As a result the wastewater and sludge generated by Barker Products contained cadmium, copper, zinc, and chromate, which are toxic pollutants. Previously, Mr. Stewart pled guilty to knowingly discharging partially treated wastewater and sludge from the Barker Products facility into the sewer system on numerous occasions between March 1, 2004, and May 3, 2004. This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio Environmental Protection Agency, the Northeast Ohio Regional Sewer District, and U.S. EPA CID, all members of the Northeast Ohio Environmental Crimes Task Force. Contact: Brad Beeson, primary contact, (440) 250-1761. Company Sentenced for Illegal Discharges to River; United States v. Green Circle Growers, Inc. On February 25, 2005, Green Circle Growers, Inc. (GCG) pled guilty and was sentenced for illegally discharging wastewater into the East Fork of the Vermilion River. GCG was ordered to pay $200,000 in restitution and fined $50,000. The restitution will be paid to the Ohio Environmental Protection Agency and the Lorain County Soil and Water Conservation District, a nonprofit organization which funds projects to protect and conserve waterways in the Lorain County watershed. GCG operates a commercial greenhouse, which is one of the 25 largest in the country, in Oberlin, Ohio. The information charged that GCG negligently discharged wastewaters from its greenhouse operations into the river. The wastewater contained various pollutants, including low levels of pesticides, herbicides, and fertilizers used in the greenhouse operations. The pollutants added to the river by GCG had an adverse impact on the water quality of the stream. This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio Environmental Protection Agency, and U.S. EPA CID, all members of the Northeast Ohio Environmental Crimes Task Force. Contact: Brad Beeson (440) 250-1761. Mr. Koumoutzis was a part owner of Olymco Incorporated (“Olymco”) along with Alex Sklavenitis who was the President of Olymco. Mr. Sklavenitis and Olymco were co-defendants in this matter and were previously sentenced on December 17, 2004. Olymco was a chrome plating operation located in Canton, Ohio. As a part of the plating process chromium, a heavy metal, is used. As a result, the wastewaters generated by Olymco contained chromium. The indictment charged that the defendants knowingly discharged industrial wastewater containing chromium into Canton’s sewer system in violation of Canton’s regulations. This case was investigated, in a joint investigation, by the Ohio
Bureau of Criminal Drinking Water Plant Operator Pleads Guilty to Making False Statements; United States v. Jeffery A. Nichols. On March 3, 2005, Jeffery A. Nichols was charged and pled guilty in United States District Court to a one-count information charging him with falsifying reports to the Ohio Environmental Protection Agency (Ohio EPA) about the amount of chlorine in the water supply for the Village of Martinsville. According to a statement of facts filed with his plea, Mr. Nichols did not analyze the drinking water from the village’s water treatment plant for chlorine on more than 90 days that he was required to between October 2000 and September 2003. On those days, he made up analytical results for chlorine and reported those results to the Ohio EPA. Mr. Nichols faces a sentence of up to five years imprisonment, a fine of $250,000 and three years of supervised release. He could also be permanently banned from seeking any license or certificate relating to drinking water or wastewater, barred from working for or consulting in any matter relating to drinking water or wastewater. The plea agreement also calls for him to contribute $400 to the Clinton Streamkeepers, a not-for-profit organization whose mission is to preserve, improve and protect water quality in Clinton County. A date for sentencing was not scheduled. This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio EPA, and U.S. EPA CID, all members of the Southern Ohio Environmental Crimes Task Force. Contact: Brad Beeson, Criminal Counsel, (440) 250-1761 Region 5 Issues FIFRA Joint Complaint and Consent Agreement and Final Order to Dow AgroSciences LLC - On February 17, 2005, Region 5 issued a joint Complaint and Consent Agreement and Final Order to Dow AgroSciences LLC. (Dow), pursuant to Section 14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) which simultaneously commences and concludes the proceeding. Section 12(a)(1)(E) of FIFRA states that distribution and sale of a misbranded pesticide constitutes an unlawful act. In March and April 2001, an Ohio Department of Agriculture (ODA) inspector conducted authorized producer establishment inspections at Holmes Ag Service (HAS), located in Holmesville, Ohio. The inspector found that the pesticide product label for Dow’s product, “GLYPHOMAX PLUS” on a bulk storage tank at the HAS establishment did not contain the EPA establishment number of the establishment that had produced the pesticide product and did not contain the net contents of the bulk storage tank. In December 2001, an ODA inspector conducted an authorized producer establishment inspection at Mid-Wood, Inc. (Mid-Wood), located in Bowling Green, Ohio. The inspector found that the pesticide product label for Dow’s product, “GLYPHOMAX PLUS” on a bulk storage tank at the Mid-Wood establishment did not contain the EPA establishment number of the establishment that had produced the pesticide product. EPA originally assessed a penalty of $3,300 for each facility (for a total of $6,600). Consistent with the provisions of the Enforcement Response Policy for FIFRA, EPA adjusted the penalty downward $660 for “good attitude”. Accordingly, proposed civil penalty has been mitigated from $6,000 to $5,940. Contact: Catherine Garypie, Associate Regional Counsel (312) 886-5825; Joseph Lukascyk, Enforcement Officer, (312) 886-6233 Former Company President Pleads Guilty to Clean Water Act Violations: United States v. Christian S. Perry. On March 9, 2005, Christian S. Perry pled guilty to illegally discharging partially treated wastewater into the City of Cleveland sewer system. Mr. Perry was the President of Techniplate, Inc. (Techniplate), an Ohio corporation, which is a metal plating operation located in Cleveland, Ohio. As a part of the metal plating process wastewater containing zinc, a toxic pollutant, is generated by s generated by Techniplate. To limit the amount of pollutants discharged into the sewer system Techniplate treats its wastewater using a pretreatment system. A byproduct of the pretreatment process is sludge. The sludge generated by Techniplate is a hazardous waste and must be disposed of properly. The indictment, filed November 16, 2004, charged that from November 1999, through June 2001, on numerous days, Mr. Perry knowingly bypassed the wastewater treatment system at the Techniplate facility, discharging partially treated wastewater and sludge which contained zinc, a toxic pollutant, into the City of Cleveland sewer system. The second count of the indictment charged Mr. Perry with providing false information to the sewer district. The Government has agreed to dismiss this charge at the time of sentencing which is scheduled for May 31, 2005. This case was investigated, in a joint investigation, by the Ohio
Bureau of Criminal Identification and Investigation, the Ohio Environmental
Protection Agency, the Northeast Ohio Regional Sewer District,
the Defense Criminal Investigative Service, and U.S. EPA CID, all
members of the Northeast Ohio Environmental Crimes Task Force. Region 5 enters into a Consent Agreement and Final Order with Michelman, Inc. - In August 2002, Michelman, Inc. self-disclosed two recently discovered violations of Section 313 of EPCRA, 42 U.S.C. § 110232. Michelman, Inc. violated EPCRA by failing timely to submit “Form Rs” for toxic chemicals (1,2,4-Trimethylbenzene, Ethylene Glycol and Zinc compounds) manufactured, processed or otherwise processed at its facility for the calendar years,1999 and 2000. In disclosing the violations, Michelman, Inc. invoked U.S. EPA’s “Audit Policy” (65 Fed. Reg. 19618 (April 11, 2000). Region 5 calculated a gravity-based civil penalty of $112,200. Region 5 subsequently reviewed additional information provided by Michelman, Inc and determined that Michelman, Inc. could satisfy all nine conditions of the Audit Policy and had gained no economic benefit from the violations. On March 24, 2005, Region 5 filed a Consent Agreement and Final Order (CAFO), resolving the matter. The CAFO allows for a 100% reduction of the gravity-based penalty, provided that Michelman, Inc. implements fully either a “Self-Policing Plan,” approved by Region 5, or all corrective measures identified through an EPCRA compliance audit approved by Region 5 shortly after the CAFO becomes effective. The settlement will promote voluntary self-policing, encourage self-disclosure and future compliance with EPCRA and its implementing regulations. Contact: Diana Embil, 312 886-7889, or Kenneth Zolnierczyk, 312-
353-9867 Region 5 issues a stipulated
penalty demand to Ohio Fresh Eggs in the matter of U.S. v. Buckeye
Egg Farm, L.P., et al. On April 21, 2005, Region 5,
in consultation with the Department of Justice, issued a stipulated
penalty demand to Ohio Fresh Eggs (OFE), which purchased the
poultry barns formerly owned and operated by Buckeye Egg Farm.
The stipulated penalty demand is in the amount of $533,300 for
violations of the Consent Decree that have occurred through March
31, 2005. The demand notes that stipulated penalties shall continue
to accrue until OFE complies with the Consent Decree requirements.
The Consent Decree requires payment of stipulated penalties within
30 days of receipt of EPA’s demand. In July 2004, the court
entered the Consent Decree requiring that OFE conduct particulate
matter and ammonia testing at OFE’s Croton, Marseilles
and Mt. Victory poultry facilities in Ohio. Except for particulate
matter testing at the Croton facility, OFE has failed to perform
the air emissions testing required by the Consent Decree. Property Owner Pleads Guilty to Illegal Asbestos Removal; United States v. Michael A. Pace. On May 3, 2005, Michael A. Pace pled guilty to illegally removing asbestos. Mr. Pace owned several storage buildings in Akron, Ohio. The information, filed April 18, 2005, charged that from November 2003 through February 2004, Mr. Pace directed other individuals to remove and dispose of more than 160 square feet of friable asbestos. The removal was done contrary to the asbestos abatement regulations. This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio Environmental Protection Agency, the Akron Regional Air Quality Management District, and U.S. EPA CID, all members of the Northeast Ohio Environmental Crimes Task Force. Contact: Brad Beeson, Criminal Counsel, (440) 250-1761 U.S. Ceramic Tile Co. Agrees To Pay a $1,270,000 Civil Penalty and Implement Facility-wide Corrective Action. On April 5, 2005, Judge Gwin entered a consent decree resolving the United States’ allegations that the defendant had violated a 1988 federal consent decree by failing to comply with approved closure plan requirements and by failing to use best efforts to obtain financial assurance and liability coverage. The United States also sought corrective action at the facility pursuant to section 3008(h) of RCRA. The defendant’s former lagoon and waste piles at its East Sparta, Ohio facility were contaminated by toxic levels of barium, cadmium and lead. The consent decree requires the defendant to implement a facility-wide corrective action program, including interim measures, a RCRA facility investigation, a corrective measures study and implementation of the selected corrective measures. The defendant also agreed to pay a $1,270,000 civil penalty for the alleged violations. U.S. Ceramic or its predecessors have manufactured ceramic tile at this facility since at least 1923. Contact: Stuart P. Hersh, primary contact, 312-886-6235; Kenneth Bardo, additional contact, 312-886-7566 Norfolk Southern Railway Enters into Consent Order for Emergency Response. Effective April 28, 2005, Norfolk Southern Railway entered into an Administrative Order on Consent for the Tri-State Chemical Site, located in Macon, Brown County, Ohio. The Order requires Norfolk Southern to characterize, remove, and properly dispose of hazardous waste and associated heavily-contaminated soils and debris located at the Site. Norfolk Southern also is agreeing to pay EPA’s past and oversight costs associated with the Site. Norfolk Southern is the owner of the land, and had leased the land to Tri-State Chemical Company. Tri-State Chemical Company owned the structures on the land and operated the business until it ceased most activities in 2000. In November 2004, the Brown County Sheriff’s Department informed the Ohio EPA that it had observed a building containing several hundred drums, some of which appeared to be leaking or bulging. According to subsequent Ohio EPA and USEPA investigations, all eight samples were characteristic hazardous waste by virtue of ignitability. Contact: Stuart P. Hersh, primary contact, 312-886-6235; Steven Renninger, additional contact, 513-569-7539 Region 5 issues a stipulated
penalty demand to Ohio Fresh Eggs in the matter of U.S. v. Buckeye
Egg Farm, L.P., et al. On April 21, 2005, Region 5,
in consultation with the Department of Justice, issued a stipulated
penalty demand to Ohio Fresh Eggs (OFE), which purchased the
poultry barns formerly owned and operated by Buckeye Egg Farm.
The stipulated penalty demand is in the amount of $533,300 for
violations of the Consent Decree that have occurred through March
31, 2005. The demand notes that stipulated penalties shall continue
to accrue until OFE complies with the Consent Decree requirements.
The Consent Decree requires payment of stipulated penalties within
30 days of
receipt of EPA’s demand. In July 2004, the court entered the Consent Decree
requiring that OFE conduct particulate matter and ammonia testing at OFE’s
Croton, Marseilles and Mt. Victory poultry facilities in Ohio. Except for particulate
matter testing at the Croton facility, OFE has failed to perform the air emissions
testing required by the Consent Decree.
Region 5 signs
Consent Agreement and Final Order with Youngstown Thermal, LLC Company Executives and Company Sentenced for Clean Water Act Violations; United States v. John J. Buschur, Theresa A. Buschur, and Western Ohio Metal Finishers. On May 16, 2005, John J. Buschur, Theresa A. Buschur, and Western Ohio Metal Finishers (“WOMF”) were sentenced for illegally discharging industrial wastewater into the Village of Minster sewer system and lying to authorities about the discharge. Mr. Buschur and Ms. Buschur were both sentenced to two years of probation. WOMF, as well as Mr. Buschur and Ms. Buschur, were ordered to pay $4,229.25 in restitution, jointly and severally. Mr. Buschur was the President and Ms. Buschur was Vice-President of WOMF, an Ohio corporation, which was a metal plating operation located in the Village of Minster, Ohio. As a part of the metal plating process zinc, a heavy metal, is used. As a result, the wastewaters generated by WOMF contained zinc. The indictment charged that the defendants knowingly discharged partially treated industrial wastewater and sludge containing zinc into the Village of Minster’s sewer system. In addition the indictment also charged that the defendants falsely stated to the Ohio Environmental Protection Agency that WOMF was not discharging industrial wastewater into the sewer system. This case was investigated, in a joint investigation, by the Ohio
Bureau of Criminal Identification and Investigation, the Ohio Environmental
Protection Agency, and U.S. EPA CID, all members of the Northwest
Ohio Environmental Crimes Task Force. CAA Secondary Aluminum NESHAP Case Against
J&J Cores, Newcomerstown, Ohio, Settled With Complaint/CAFO On
April 18, 2005, Region 5 filed a combination Complaint/Consent
Agreement and Final Order simultaneously initiating and resolving
an administrative compliance action under Section 113(d) of the
Clean Air Act (the Act), 42 U.S.C. § 7413(d), against Respondent
J&J Cores (J&J) at its Newcomerstown facility, at which
the company sweats aluminum from automotive, household, and manufacturing
breakage scrap. J&J uses a sweat furnace to melt and separate
aluminum from scrap containing aluminum and iron metals. Emissions
from the sweat furnace are controlled by an afterburner. J&J’s
sweat furnace and afterburner, installed in 2001, are subject
to the requirements of the National Emission Standards for Hazardous
Air Pollutants for Secondary Aluminum Production at 40 C.F.R.
part 63, subpart RRR (SA NESHAP). The complaint alleges that
Respondent violated the following SA NESHAP requirements: 40
CFR §63.1510(g) (monitoring requirements for afterburner);
40 CFR §63.1515 (b) (submission of notification of compliance
status report); 40 CFR §63.1516(b) (submission of excess
emissions/summary report); and 40 CFR§ 63.1506(h)(2) (operation
in accordance with facility Operation, Maintenance and Monitoring
Plan). The determination of violations in this case is based
on a U.S. EPA inspection of the facility as well as its responses
to a Clean Air Act Section 114 information request. The Region
issued a Finding of Violation to the company and held a Section
113 conference to discuss the alleged violations. Respondent
provided confirmation that it is now in compliance with the cited
requirements, and financial information showing a limited ability
to pay and economic impact. Accordingly, the Region settled this
matter with a civil penalty amount based on the company’s
ability to pay ($3,588) as determined by a Regional financial
analyst. In the CAFO the company also agreed to provide the Region
quarterly reports for one year which confirm steps Respondent
is taking to maintain and ensure compliance with the SA NESHAP
requirements at issue. Former Company President Sentenced
for Illegal Discharges into the Sewer System; United States v.
Christian S. Perry. On May 31, 2005, Christian S. Perry
was sentenced for illegally discharging partially treated wastewater
into the City of Cleveland sewer system. Mr. Perry was sentenced
to 12 months of probation. Mr. Perry was also ordered to pay
a $5,000 fine. Mr. Perry was the President of Techniplate, Inc.
(“Techniplate”), an Ohio corporation, which is a
metal plating operation located in Cleveland, Ohio. As a part
of the metal plating process wastewater containing zinc, a toxic
pollutant, is generated by s generated by Techniplate. To limit
the amount of pollutants discharged into the sewer system Techniplate
treats its wastewater using a pretreatment system. A byproduct
of the pretreatment process is sludge. Bureau of Criminal Identification and Investigation, the Ohio
Environmental Protection Agency, the Northeast Ohio Regional Sewer
District, the Defense Criminal Investigative Service, and U.S.
EPA CID, all members of the Northeast Ohio Environmental Crimes
Task Force. The determination of violations in this case is based on an Ohio EPA inspection of the Spartan Chemical facility. During the July 2, 2003 inspection, the inspector collected a sample of and distribution records for Respondent’s product DMQ Damp Mop Neutral Disinfectant Cleaner (DMQ). EPA determined the DMQ is a pesticide. The label of DMQ states, among other things, that it “Kills Staphylococcus aureus, Pseudomonas aeruginosa...” and “For one step cleaning and disinfection in the presence of 5% organic soil use DMQ at 2 oz. per gallon of water.” Ohio analyzed a sample of DMQ collected during the 2003 inspection for efficacy against the microorganism Pseudomonas aeruginosa. This analysis revealed that DMQ tested as “ineffective” against Pseudomonas aeruginosa, and thus Respondent’s label was found to be false and misleading in its claims of antimicrobial efficacy. Distribution records collected during the inspection, indicated that Respondent distributed or sold the DMQ under the label at issue on at least five occasions, in violation of Section 12(a)(1)(E) of FIFRA, 7 U.S.C. § 136j(a)(1)(E). The Region issued a “pre-filing letter”(a letter notifying a party that EPA intends to file a complaint) to the company March 16, 2005, and held a pre-filing conference to discuss the alleged violations on March 30. Respondent provided confirmation that it is now in compliance with the cited requirements, and expressed willingness to settle the civil penalty claims without litigation. The parties agreed to a settlement with a civil penalty of $17,600. This amount represents a 20% mitigation of the initial $22,000 proposed penalty amount for Respondent’s good faith and co-operation. Primary contact: Andre Daugavietis, Associate Regional Counsel
(312) 886-6663. Mr. Nichols was responsible for the drinking water plant which serviced the Village of Martinsville. According to a statement of facts filed with his plea, Mr. Nichols did not analyze the drinking water from the village’s water treatment plant for chlorine on more than 90 days that he was required to between October 2000 and September 2003. On those days, he made up analytical results for chlorine and reported those results to the Ohio EPA. This case was investigated, in a joint investigation, by the Ohio
Bureau of Criminal Identification and Investigation, the Ohio EPA,
and U.S. EPA CID, all members of the Southern Ohio Environmental
Crimes Task Force. Unilateral Administrative Order (Docket No. V-W-05-C-821) Issued at the Former Zeller Corporation Superfund Site in Defiance, Ohio. - The Former Zeller Corporation Superfund Site (“Site”) is an abandoned manufacturing facility which once produced universal joints, drive shafts, drive line components and spark plugs. U.S. EPA determined that the presence of high levels of PCBs in transformers, oil spilled from transformers, oil that has migrated off-site from the transformers, and various industrial wastes abandoned at the Site pose a threat to human health and the environment. On June 16, 2005, U.S. EPA issued an Action Memorandum setting forth required response actions designed to abate the threats posed by the Site. The cleanup work will include the excavation of approximately 1000 tons of PCB contaminated soil and debris, disposal of approximately 300,000 gallons of PCB contaminated water, disposal of several dozen PCB transformers and capacitors, disposal of approximately 17 unknown containers, and disposal of several hundred laboratory containers. The potentially responsible parties (“PRPs”) at the Site declined an offer by U.S. EPA to enter into a voluntary cleanup agreement. On June 21, 2005, a Unilateral Administrative Order (“UAO”), ordering implementation of the necessary cleanup work, was issued to the PRPs. The PRPs have expressed their willingness to comply with UAO. Primary contact: Rich Murawski, Assistant Regional Counsel (312) 886-6721. Region 5 files a Consent Agreement and Final Order to commence and conclude case against RPM International, Inc. (The Euclid Chemical Company, Cleveland, Ohio; Rust-Oleum Corporation, Pleasant Prairie, Wisconsin; and Republic Powdered Metals, Medina, Ohio). On July 28, 2005, Region 5 filed a Consent Agreement and Final Order (CAFO) simultaneously commencing and concluding an administrative penalty action against The Euclid Chemical Company (Euclid), Rust-Oleum Corporation (Rust-Oleum), and Republic Powdered Metals (Republic) for violations of the National Volatile Organic Compound Emissions Standards for Architectural Coatings, 40 CFR Part 59, Subpart D. The CAFO requires Respondents to pay a penalty of $70,312. Rust-Oleum has also agreed to reformulate its architectural coatings which exceed volatile organic compound content limits to levels below the limits by December 31, 2005. On March 29, 2004, Region 5 issued a Finding of Violation (FOV) to Republic for allegedly improperly labeling containers of architectural coatings. On December 22, 2004, Region 5 issued a FOV to Euclid and Rust-Oleum for allegedly exceeding the volatile organic compound content limits for certain coatings without paying exceedance fees. All three entities are subsidiaries of RPM International, Inc., and therefore are considered a single manufacturer under the regulations. In response to the FOV, Republic updated its labels to contain the required information and Euclid and Rust-Oleum paid past due exceedance fees. These efforts remedied the violations. As a result of Respondents’ cooperation, good faith, and other factors as justice may require (including the agreement to reformulate), Region 5 determined that it was appropriate and consistent with the penalty policy to mitigate its planned proposed penalty of $140,623 to a settlement penalty of $70,312. Contact: Mony Chabria, 312-886-6842 United States Files Complaint Against
Degussa Initiators, LLC, and Simultaneously lodges Consent Decree
in Southern District of Ohio resolving Clean Water Act violations. Primary Contact: Mark Palermo, ORC, (312) 886-6082; additional contact: Purita Angeles, (312) 353-5112 Region 5 Issues United States’ Statement of Position in Stipulated Penalty Demand to Ohio Fresh Eggs in the matter of U.S. v. Buckeye Egg Farm, L.P., et al. On August 22, 2005, Region 5 issued the United States’ Statement of Position for its stipulated penalty demand to Ohio Fresh Eggs (OFE). OFE purchased the poultry barns formerly owned and operated by Buckeye Egg Farm. In its Statement of Position, EPA reviewed OFE’s compliance with the Consent Decree through March 31, 2005, and concluded that its $490,750 stipulated penalties demand was appropriate, and demanded payment within thirty days. EPA’s April 21, 2005 original stipulated penalty demand was in the amount of $533,300 for OFE’s violations of the Consent Decree that had occurred through March 31, 2005. EPA also put OFE on notice that EPA would seek stipulated penalties for violations that continue and/or occur after March 31, 2005 and that EPA reserved all rights to assess stipulated penalties for any failure by OFE to performing testing and implement controls at certain Croton barns required to convert to belt batteries. In a May 12, 2005 letter, OFE invoked the informal dispute resolution procedures under the Consent Decree. Based on information provided by OFE, on May 18, 2005, EPA reduced its stipulated penalty demand to $490,750, and agreed to an extension of time to continue informal negotiations, thereby provided a thirty day extension of time to the original twenty day period of time for informal negotiations established in the Consent Decree. The extended period for informal negotiations expired on Friday, June 17, 2005. OFE served the United States with its Statement of Position dated July 6, 2005. In July 2004, the court entered the Consent Decree requiring that OFE conduct particulate matter and ammonia testing at OFE’s Croton, Marseilles and Mt. Victory poultry facilities in Ohio. Except for particulate matter testing at the Croton facility, OFE has failed to perform the air emissions testing required by the Consent Decree. Contacts: Mary McAuliffe, ORC, 312-886-6237; Kevin Vuilleumier, ARD, 312-886-6188; Cary Secrest, OECA, 202-564-8661; Sanda Howland, OECA, 202-564-5022 Remedial Investigation/Feasibility Study Field Work begins at the ARMCO Hamilton Superfund Site. On August 30, 2005, Region 5 announced that field work associated with a Remedial Investigation/Feasibility Study (RI/FS) began at the ARMCO Hamilton Superfund Site, 401 Augsberger Road, New Miami, Ohio. The Phase 1 field work will determine the nature and extent of contamination and will include sampling of soil, ground water, surface water and sediment and installation of monitoring wells. Sampling areas will include former by-product areas such as air sludge scrubbers, a rail yard, stormwater outlets, drainage ditches, fuel storage tanks, wastewater settling ponds and a closed landfill. The site is composed of two parcels on 252 acres with a history of heavy industrial use since the early 1900s. Starting out as a coke plant, the property was also the site of iron, steel and road tar manufacturing. Now vacant, the property was purchased by AK Steel in 1994 and subsequently blast furnaces, buildings and other structures were demolished. The work now under way will be performed by AK Steel, the Potentially Responsible Party for the site, under the requirements of an administrative order on consent entered into with U.S. EPA. Region 5 will conduct oversight in consultation with Ohio EPA. Contact: Janet Carlson at (312) 886-6059 or Mark Palermo (312) 886-6082 (Legal Contacts) or Pablo Valentin at (312) 353-2886 (Technical Contact)) Cost Recovery Consent Decree Entered
7/13/05 in U.S. v. Atlas Lederer Company Contacts: Sherry L. Estes, ORC, (312) 886-7164; Deborah Garber,
ORC (312) 886-6610) On August 29, 2005, the United States District Court for the District of Columbia, Judge Ellen Segal Huvelle presiding, granted U.S. EPA’s motion to dismiss a complaint filed by Royster Clark Agribusiness Inc. (Royster). Royster sought a declaration that EPA acted in excess of its statutory authority when Region 5 issued a Notice of Violation/Finding of Violation (NOV) to the company in July, 2004. The NOV alleged that Royster’s nitric acid manufacturing facility in North Bend, Ohio was violating Part C of the CAA, the OHIO SIP, the NSPS for nitric acid plants and Title V. In its complaint, Royster further requested an injunction to prevent Region 5 from initiating any civil, administrative or legal action or proceeding of any sort for violations alleged in the NOV. Specifically, Royster claimed that EPA exceeded its statutory authority in issuing the NOV, because Royster did not violate the CAA and regulations at issue and affirmative defenses prevent enforcement. The Court dismissed Royster’s complaint for lack of jurisdiction. Rather than attack the NOV on its face, Royster challenged the Administrator’s actions as ultra vires and, in doing so, relied on an exception to the doctrine of sovereign immunity. The Court noted that Royster cannot invoke a narrow exception to the doctrine by merely raising a laundry list of defenses to a potential enforcement action. Royster clearly failed to allege any ultra vires action by the Administrator. Royster only contended that EPA acted ultra vires by issuing a NOV to a party that lacks liability. The Court made clear that EPA is authorized to issue a NOV under section 113 of the CAA “‘whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated or in violation of any requirement or prohibition of an applicable implementation plan or permit’ or various other requirements or prohibitions.” Thus, EPA acts within its statutory power if it finds a violation, and even if this finding were to ultimately be erroneous, it is still within the Agency’s statutory authority to issue a NOV. Equally important, the Court rejected any notion of an expansive interpretation of ultra vires, because doing so would allow an alleged CAA violator to enjoin an agency’s nascent enforcement action and render any statutory enforcement mechanisms meaningless. Royster cannot merely “parrot the phrase ultra vires” and avoid the doctrine of sovereign immunity. Royster argued that even if sovereign immunity does not apply, statutory immunity has been explicitly waived by section 702 of the Administrative Procedure Act. (This section provides that a person suffering a legal wrong because of agency action is entitled to judicial review.) However, the Court explained that section 702 does not waive statutory immunity, because the CAA grants consent to suit and expressly forbids Royster from bringing its action. Section 307(b)(1) of the CAA provides the exclusive means of obtaining judicial review of final actions of the Agency. Specifically, petition for review of a final Agency action may be filed only in the US Court of Appeals for the District of Columbia. (Royster first filed in the Southern District of Illinois and then refiled in the district court.) The Court concluded that section 307(b)(1) provides no jurisdiction in the district court. The Court further noted that the NOV is not a final agency action, and, as such, is not reviewable under section 307(b)(1). Noting the two-part test for determining when an agency action
is reviewable as “final,” the Court stated that an
agency action must mark the consummation of the agency’s
decision-making process and must also be one by which rights or
obligations have been determined or from which legal consequences
will flow. Because the NOV was simply the first step in a potential
enforcement process, rather than the “consummation” of
EPA’s decision-making process, the NOV is not a final agency
action. In this instance, the NOV did not impose any new obligations
or penalties on Royster. The Court emphasized that numerous jurisdictions
have concluded that a NOV under the CAA is not a final agency action.
Despite this widely held view, Royster cited a case from 1980,
Conoco v. Gardebring, which stated that a NOV under the CAA was
final agency action because of EPA's lack of discretion in choosing
to pursue enforcement. (The actual text is "[o]nce Notices
of Violation are issued, Section 113 of the Clean Air Act mandates
that the Administrator "shall commence" a civil action
if a violation continues for more than 30 days after the Notices
have been issued.") The Court remarked that this might have
been persuasive except for one minor detail - the CAA was amended
in 1990, eliminating this lack of discretion and the requirement
to commence a civil action. The current version of the CAA states
that the Administrator may issue an order, administrative penalty
order or civil action. Because EPA retains considerable discretion
in enforcement options after issuing a NOV, the NOV is not a final
agency action subject to review. The Court rejected Royster’s
attempt to persuade it to follow the “well reasoned decisions
of Conoco and Philadelphia Electric (a “similarly obsolete” case
from 1978 that plaintiffs cited). For the above reasons, the Court
found that it lacked jurisdiction over Royster’s complaint,
thereby granting EPA’s Motion to Dismiss. United States District Court for
the Southern District of Ohio Enters Consent Decree Resolving
CWA Violations by Licking County, Ohio 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. 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. Contacts: Steven P. Kaiser at (312) 353-3804 (legal contact) or David Schulenberg at (312) 886-6680 (technical contact). Chief Administrative Law Judge Issues Default Order Against TRW Enterprises of Milford, Ohio for FIFRA Violations. On September 19, 2005 Chief Administrative Law Judge Susan L. Biro issued a default order against Jeffery W. Pendergrass and TRW Enterprises of Milford, Ohio. EPA Region 5 filed an administrative complaint against Mr. Pendergrass and his company on April 12, 2005 for failure to file Annual Pesticide Production Reports on time for the 2002 and 2003 reporting years, as required by Section 7(c)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136e(c)(1). On June 3, 2005 Judge Biro issued an order requiring the Region and TRW to exchange copies of documents the parties intended to rely on to support their respective positions at hearing. TRW failed to comply with Chief Judge Biro’s order, and on August 25, 2005 Judge Biro issued an Order to Show Cause ordering TRW to explain why it had not submitted the pre-hearing exchange. Because TRW did not respond to the Show Cause order, Chief Judge Biro found TRW in default. The default order requires Mr. Pendergrass and TRW to pay a $1000 civil penalty. Contact: Erik Olson, primary contact 312-886-6829; Bruce Wilkinson,
additional contact 312-886-6002 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.
Record of Decision Issued Establishing Remedy for Nease Chemical Superfund Site, Columbiana County, Ohio On September 29, 2005, Region 5 issued a record of decision establishing a remedy for source area and groundwater contamination at the Nease Chemical Superfund Site in Columbiana County, Ohio. The 44-acre site is on Route 14, 2.5 miles northwest of Salem on the Columbiana-Mahoning county line. Between 1961 and 1973, Nease Chemical produced household cleaning products, fire retardants and pesticides at the site. The remedy chosen in the Record of Decision is expected to cost approximately $19 million, and includes innovative chemical removal methods for former waste ponds at the site, as well as innovative soil capping and ground water treatment methods. On a separate track, a plan will be developed later for remediation of contamination at the nearby middle fork of Little Beaver Creek. Contact: Mark Palermo: (312) 886-6082; Mary Logan: (312) 886-4699. Region resolves EPCRA 312 case
against American Electric Power, Chesire, Ohio Daily records from January 1, 2004 through June 30, 2004 for seven of the Jefferson facility’s emission units show that the units were emitting over the allowable 40 lbs/day of organic compound (OC) on at least 232 days. Purchase records for these seven Emission Units for January 1, 2001 through December 31, 2001, show that these Units were using over the allowable 396 gallons/yr of cleanup materials per emission unit. Daily records from January 1, 2004 through June 30, 2004 for one of the Ashtabula facility's Emission Units, show that this Unit was emitting over 40 lbs/day of OC, excluding cleanup emissions on at least 2 days. Daily records from January 1, 2004 through June 30, 2004 for another Emsission Unit from the Ashtabula facility, show that the Unit emitting over 3.17 lbs/hour of OC, including cleanup emissions on at least one day. The Region issued a Finding of Violation to the company on September 22, 2004, and held a Section 113 conference on October 21, 2004, to discuss the alleged violations. Respondent provided confirmation that it is now in compliance with the cited requirements. In resolution of this matter, Respondent agrees to undertake the following two Supplemental Environmental Projects (SEPs): 1) Acetone Reduction and 2) Lower VOC Paint Re-Formulation. In order to reduce the use and emissions of acetone, Respondent agrees to utilize for 2 years “Super Blue LF Cleaner” in place of acetone as a tool cleaner in applications where tools come in contact with catalyzed resin. Super Blue products are more expensive, but provide non-VOC materials to perform the same function. Respondent estimates total costs of $68,992, and acetone reductions of 18,260 pounds (9.13 tons) over the 2 years of the project. (In order to reduce VOC emissions from its painting operations, Respondent, while re-formulating its paint for MACT requirements, will also incorporate a low-VOC paint requirement to significantly reduce VOC Emissions. Respondent estimates total costs of $74,348, and reductions of 8,818 pounds (4.91 tons) VOCs over the 2 years of the project. In assessing the civil penalty, the Region took into account the
nature and seriousness of the violations, the size of the Respondent’s
business and the economic impact of the penalty on Respondent’s
business, Respondent’s cooperation, the steps Respondent
has taken and has agreed to take to achieve and maintain compliance,
the SEP Projects which Respondent has agreed to implement, and
other relevant factors. Based on these factors the Region determined
that it is appropriate reduce the proposed civil penalty amount
from $87,391 to $19,000, which is assessed in the CAFO. RCRA Subpart BB Case against Glidden/ICI
Paints, Huron, Ohio resolved with Complaint/CAFO On April 25, 2005, the Region issued a pre-filing notice and opportunity to confer letter notifying Respondent of the Agency’s intent to file an administrative complaint seeking civil penalties for these violations. On June 23, 2005, and subsequent dates, Respondent conferred with EPA regarding the alleged violations and potential resolution of this matter. After receipt of the Region’s Notice of Violation regarding the violations, Glidden promptly and co-operatively came into and demonstrated compliance with the relevant requirements, and in the CAFO certifies that it is in compliance with the requirements at issue. Respondent also provided information to the Region that while it was out of compliance with the Part BB requirements at the Huron facility, as set forth above, it had performed visual inspections of the equipment at issue before each shift (up to 3 times daily), and had detected and repaired equipment leaks. Based on the nature and seriousness of the violations alleged, the potential harm to human health and the environment, Respondent’s willfulness/negligence or lack thereof, Respondent’s compliance history, ability to pay, and co-operation, the steps Respondent has taken to achieve and maintain compliance, and other relevant factors, EPA has determined that an appropriate civil penalty to settle the allegations is in the amount of $100,115, and this is the civil penalty amount assessed in the CAFO. (Contact: Andre Daugavietis, ORC, (312) 886-6663.)
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