Enforcement Action Summary FY 2005 - September

September 5 , 2005

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
The settlement in U.S. v. Atlas Lederer Company (Case No. C-3-91-309) entered in the Southern District of Ohio, provides for recovery of past costs under Section 107 of CERCLA from four settling defendants; litigation is on-going against additional defendants. The settlement is in connection with the United Scrap Lead Site, which is located on Highway 25A in Troy, Ohio. Pursuant to the consent decree, three of the Defendants, Barker Junk Company, Inc., Broadway Iron & Metal, Inc., and U.S. Waste Materials, Inc. are to make reimbursement of EPA's past costs within 30 days of the entry of the consent decree. While also required to make an initial payment of $6,630 within 30 days of consent decree entry, Moyers Auto Wrecking will make a series of installment payments every 90 days, until it has paid a total of $26,520, plus Interest on the installment payments. The United States will recover a total of $137,499.76, plus interest, when all payments have been made pursuant to consent decree provisions. The settling defendants will also make additional payments totaling $38,787.97 to the Respondent Group, the PRP group which conducted the remedial design/remedial action at the Site

Contacts: Sherry L. Estes, ORC, (312) 886-7164; Deborah Garber, ORC (312) 886-6610)

Region 5 Settles Unauthorized Underground Injection Control Case with Quicksilver Resources, Inc.  On September 1, 2005, EPA filed a combined Complaint and Consent Agreement and Final Order concerning two underground injection wells in Beaver Creek Township, Crawford County, Michigan. The two wells are owned and operated by Quicksilver Resources, Inc., which used the wells in connection with oil and natural gas production. Specifically, Quicksilver Resources, Inc. violated federal underground injection control regulations by using these wells for disposal of waste gas without first obtaining a federal permit authorizing such activity. The two wells were used for unauthorized underground injection for periods of 13 and 15 months, respectively.  The Respondent disclosed these violations pursuant to EPA's April 11, 2000 policy, "Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations" (65 Fed. Reg. 19618).  Under this policy, the Respondent met the criteria for a 75% mitigation of the penalty EPA otherwise would have sought through administrative litigation. In consideration of the penalty criteria specified in SDWA, the facts of this case, Respondent's cooperation, and Respondent's prompt correction of the violations and good faith efforts to comply with SDWA requirements, EPA accepted a settlement of this matter for $19,600, a reduction of 75% of the assessed penalty of $78,400.

Contact: Mark Palermo, (312) 886-6082

September 12, 2005

Region 5 signs a Consent Agreement and Final Order with Orica Nitrogen, LLC.  Region 5 initiated this enforcement action in September of 2004. On September 12, 2005, the Region filed a Consent Agreement and Final Order with Orica Nitrogen, LLC, of Morris, Illinois to settle alleged violations of Section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9603 and Section 304 of the Emergency Planning and Community Right to Know Act, 42 U.S.C. § 11004, at their facility in Morris, Illinois. The alleged violations arose out the failure to promptly report a continuous release of ammonia discovered at their facility in April of 2003. Under the terms of the agreement, Orica will pay a penalty of $13,750 and complete a Supplemental Environmental Project (SEP) costing at least $100,000. Through the SEP, Orica will reduce nitrogen oxides emitted by its nitric acid plant by an estimated 30 tons per year by installing a hydrogen peroxide dosing system and operating the system during startups.

Contact: Erik Olson, primary contact 312-886-6829; James Entzminger, additional contact 312-886-4062

CAA LDAR Method 21 Case Against Stepan Company, Elwood, Illinois Settled With Complaint/CAFO  On September 8, 2005, Region 5 filed a combination Complaint/Consent Agreement and Final Order simultaneously initiating and resolving an administrative compliance action under Section 113(a) of the Clean Air Act against Respondent the Stepan Company at its Elwood, Illinois facility. The company produces various chemical product at this facility in particular, it manufactures Pthalic Anhydride (PA) there. The PA process uses ortho-xylene, a hazardous air pollutant (HAP), which makes the processing equipment subject to the requirements of Subpart H of the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Equipment Leaks at 40 C.F.R. Part 63. Section 63.180(b) of the regulations requires that monitoring comply with EPA Reference Method 21.

The company has implemented a Subpart H “leak detection and repair” (LDAR) monitoring program at its Elwood facility since 1995, and its monitoring contractors have been monitoring the equipment under the Method 21 requirements. During a May 2004 Region 5 inspection at the Elwood facility, EPA conducted LDAR monitoring on some of the PA process equipment. EPA staff detected five leaks which were then confirmed by Stepan’s regular LDAR contractor (a “leak” is defined as an instrument reading of 500 ppm or greater). The Region found that these 5 leaks represent a significantly higher percentage of leaks than were detected in previous monitoring events by Respondent, and alleged that the Company had failed to correctly monitor in accordance with Method 21 during previous LDAR monitoring events. The complaint alleges that the failure to monitor in accordance with EPA Reference Method 21 is a violation of 40 C.F.R. § 63.168 (b)(1), 40 C.F.R. § 63.174(a)(1), 40 C.F.R. § 63.180(b)(1), Method 21 of 40 C.F.R. Part 60 Appendix A, and 40 C.F.R. § 63.4(a)(1).

The Company denied that the leaks demonstrated a violation, but agreed to take steps to ensure future compliance with Method 21, as well as to implement for 2 years an enhanced monitoring program under which the facility is to: perform more frequent monitoring than required under the regulations; utilize a monitoring device equipped with a data logger (which automatically records the emission levels detected at each component and the date and time that each sample is taken); implement a reduced leak “repair action level” standard (below the regulatory leak definition) for valves, connectors, and pumps; evaluate upgrading leaking components to utilize improved technology, or environmentally enhanced alternatives; evaluate upgrading leaking or even non-leaking pumps (to eliminate the need for monitoring these components and to reduce fugitive emissions from them); evaluate “more aggressive” repair alternatives; perform a “root cause analysis” on leaking components; develop a maintenance and corrective action program; and provide the Region with reports on the results of the enhanced monitoring program. The Region estimates that implementation of the enhanced monitoring program will reduce emissions of the HAP Ortho-Xylene by 2.3 tons (4,600 pounds) per year. Given factors including that (unlike most facilities which have been inspected) Stepan had an otherwise complying LDAR program in place and was the first company to agree to an administrative order requiring the region-designed enhanced monitoring program, the Region settled this matter with a civil penalty amount of $5,000. This case is significant as the first resolution of an expected series of Region 5 administrative LDAR cases.

Contact: Andre Daugavietis, ORC, (312) 886-6663

Michigan Plating Shop Supervisor Pleads Guilty To Abandoning Chemicals.  On September 8, 2005, James A. Vaandering, former supervisor at a Sealmore Corporation facility located in Muskegon, Michigan, pleaded guilty to illegally storing and disposing of hazardous waste. According to the Indictment filed in the case, the Sealmore Corporation facility was condemned in about November, 2000. The facility contained a number of chemicals and liquids in vats used in the plating process, including acid solutions containing hexavalent chromium and hydroflouric acid. At sentencing, Vaandering faces a maximum punishment of imprisonment for up to five years, and a fine of up to $250,000, or both.

Contact: David M. Taliaferro at (312) 886-0815.

Region 5 Settles Clean Air Act Violations with Intrametco Processing.  Region 5 initiated this enforcement action in April of 2004. On September 14, 2005, the Region signed a Consent Agreement and Final Order with Intrametco Processing, Inc. of Evansville, Indiana to settle violations of Section 112 of the Clean Air Act, 42 U.S.C. § 7412, and the National Emission Standards for Hazardous Air Pollutants for Secondary Aluminum Processing, 40 C.F.R. §§ 63.1500 through 63.1520. Intrametco processes scrap aluminum into ingots for industrial use, and is required to comply with EPA regulations for the control of the hazardous air pollutants dioxins and furans.  The violations alleged in this matter arose out the late emissions testing of three regulated pieces of process equipment, two furnaces and a rotary scrap dryer, and the subsequent failure of the scrap dryer to comply with emissions limits. Under the terms of the settlement, Intrametco will pay a penalty of $42,500, which represents the proposed penalty of $80,300 reduced for prompt correction of environmental problems, cooperation during U.S. EPA’s prefiling investigation, and other factors as justice requires. Intrametco previously agreed to decommission the scrap dryer and have it removed from its operating permit in an Administrative Consent Order filed in 2004.

Contact: Erik Olson, primary contact 312-886-6829; Joe Ulfig, additional contact 312-353-8205

September 19, 2005

Consent Decree was Lodged that resolves claims for past oversight costs at the True Temper Site in Geneva, Ohio
On September 15, 2005, the Director of the Superfund Division, Region 5, signed a Consent Decree that settled claims for past oversight costs incurred by the Agency in connection with the True Temper Site in Geneva, Ohio. On September 19, 2005, the Department of Justice lodged the Consent Decree in the United States District Court of Ohio. The Consent Decree provides for the payment of $69,000.00 and resolves the Agency’s claims against Eliskim, Inc. and the City of Geneva, Ohio.In 1997, the Agency entered into an AOC with the City and Eliskim to perform removal response action work at the True Temper Sports Site (True Temper Site). The Agency incurred costs overseeing the removal of lead and PCB-contaminated soils from the True Temper Site. The removal work was completed in 1999. The Agency estimates that the value of the removal work is $8.7 million.The Administrative Order On Consent (AOC) required Eliskim and the City to pay the Agency’s oversight costs. Eliskim and the City have already paid the Agency oversight costs totaling $467,053.38. By the time work was completed, Eliskim had ceased operations and claimed to have no ability to pay the final oversight bill for costs totaling approximately $118,000.00. The Consent Decree provides that Eliskim will pay the Agency $56,500.00 from monies received in a settlement with its insurance company. The City of Geneva will pay $12,500.00 out of general revenues. In total, the Agency will have recovered more than ninety percent of the costs it incurred at the True Temper Site.
Contact: Steven P. Kaiser, ORC, (312) 353-3804.

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.
Contact Joanna S. Glowacki, Associate Regional Counsel, (312) 353-3757.

Region 5 signs Consent Agreement and Final Order with Foremost Farms resolving EPCRA Section 313 violations at DePere, Wisconsin facility
On September 15, 2005, U.S. EPA, Region 5 filed a Consent Agreement and Final Order with the Regional Hearing Clerk that simultaneously commences and concludes alleged violations of EPCRA Section 313, 42 U.S.C. § 11023, by Foremost Farms of Baraboo, Wisconsin at its DePere, Wisconsin facility. On December 2, 2002, Foremost Farms disclosed to U.S. EPA that it had failed to timely file a Form R for its “otherwise use” of nitric acid, CAS No. 7697-37-2, in quantities exceeding the “otherwise use” threshold during the 2001 calendar year. Foremost Farms invoked the U.S. EPA’s Incentives for Self-Policing: Discovery, Disclosure, Corrections and Prevention of Violations, 65 Fed. Reg. 19618 (April 11, 2000) (Self-Disclosure Policy) for the reporting failure.

Pursuant to the statutory penalty criteria set forth at Section 325(c) of EPCRA, 42 U.S.C.
§ 11045(c), and U.S. EPA’s “Enforcement Response Policy for Section 313 of the Emergency Planning and Community Right-to-Know Act and Section 6607 of the Pollution Prevention Act,” and 40 C.F.R. Part 19, U.S. EPA calculated an initial gravity-based proposed penalty of $18,700 for the disclosed violation. U.S. EPA determined that Foremost Farms failed to satisfy Condition D(1) of the Self-Disclosure Policy which requires systematic discovery of the violation thorough an environmental audit or a compliance management system. Foremost Farms qualified for a seventy-five percent reduction in the proposed penalty to $4,675. Based upon Foremost Farms’ commitment to perform an audit within one year, U.S. EPA reduced the adjusted gravity-based proposed penalty by one hundred percent.

Contact: Mary McAuliffe, , ORC (312) 886-6237; additional contact: Kenneth Zolnierczyk (312) 353-9687.

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.

September 26, 2005

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 Notice of Violation to the Nishikawa Standard Company, Topeka, Indiana. Between December 2003 and May 2005, the Nishikawa Standard Company, (NISCO) voluntarily disclosed to U.S. EPA violations of Sections 5, 8 and 13 of the Toxic Substances Control Act, 15 U.S.C. §§ 2604, 2607 and 2612 (TSCA). NISCO’s violations included importing a chemical not on the TSCA Inventory without submitting premanufacture notice or obtaining a low volume exemption, failing to include 19 chemicals on its 2002 Inventory Update Report, and failing to follow all TSCA certification requirements for certain chemical imports dating from 1999 to 2004. NISCO voluntarily disclosed these violations under U.S. EPA’s April 11, 2000 Self Disclosure Policy, Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations Final Policy Statement (65 Fed. Reg. 19618). The Self Disclosure Policy has several important goals, including encouraging greater compliance with the laws and regulations which protect human health and the environment through self-policing, discovery, disclosure, correction and prevention. If certain specific criteria are met, reductions in gravity based penalties of up to 100% are available under the Self Disclosure Policy. On September 22, 2005, after reviewing NISCO’s voluntary disclosure under the Self Disclosure Policy, the Region issued a Notice of Violation and Final Determination that NISCO’s disclosures met all the conditions of the Policy and that the Region would therefore not seek any penalty for the disclosed violations.

Contact: Erik Olson, primary contact 312-886-6829; Anthony Silvasi, additional contact 312-886-6878

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

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 5 files Consent Agreement and Final Order with Badger Meter, Inc. of Milwaukee, Wisconsin  On September 26, 2005, Region 5 filed a Consent Agreement and Final Order (CAFO) simultaneously instituting and settling an action against Badger Meter, Inc. (Badger Meter), Milwaukee, Wisconsin, for alleged violations of Section 3005(a) of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. § 6925(a). Badger Meter is a large quantity generator of hazardous waste who allegedly failed to meet certain conditions for an exemption from obtaining a permit for the storage of hazardous waste. Badger Meter allegedly failed to 1) include a description of emergency equipment capabilities in its contingency plan; 2) train an employee in hazardous waste management procedures; 3) keep three containers of hazardous waste stored closed; 4) label two containers; document the time of weekly hazardous waste area inspection; and 5) obtain an assessment and certification from a licensed Professional Engineer as to the integrity of a hazardous waste storage tank at Badger Meter’s facility. By violating its duty to obtain a permit, Badger Meter became subject to civil penalties under Sections 3008(a) and (g) of RCRA, 42 U.S.C. §§ 6928(a) and (g). Under this CAFO, Badger Meter agrees to pay $105,400 in civil penalties. The penalty represents a substantial sanction against Badger Meter, and will deter future violations.

Primary Contact: Kevin Chow, (312) 353-6181; Additional Contact: Paul Atkociunas, (312) 886-7502

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 5 approves Indiana’s 39 TMDLs for E. coli for the Flatrock-Haw Creek watershed
On September 22, 2005, Region 5 approved the Total Maximum Daily Loads (TMDLs) submitted to EPA by the Indiana Department of Environmental Management to address 39 waterbody segments in the Flatrock-Haw Creek watershed impaired by elevated levels of E. coli during the recreational season. The TMDLs cover 211 miles of the Flatrock River, its tributaries, and the Haw Creek. The TMDLs identify the maximum daily load of E. coli that the waterbodies can receive from point and nonpoint sources without violating the applicable water quality standard, which is a concentration limit for E. coli.

Contact: Catherine Fox primary contact 312-886-6662, Dean Maraldo additional contact 312-353-2098

Region 5 signs a Consent Agreement and Final Order with CITGO Petroleum Corporation and PDV Midwest Refining L.L.C., resolving Clean Air Act violations at Lemont, Illinois Refinery
On September 30, 2005, U.S. EPA Region 5 filed a Consent Agreement and Final Order (CAFO) with the Regional Hearing Clerk that simultaneously commences and concludes, under Section 113 of the Clean Air Act (CAA), 42 U.S.C. § 7413, alleged violations of the particulate matter limit in the State Implementation Plan (SIP), by CITGO Petroleum Corporation (the operator) and PDV Midwest Refining L.L.C. (the owner), regarding the Lemont, Illinois refinery. From February 28, 2005 through March 9, 2005, Respondents shut down the carbon monoxide boiler on its fluidized catalytic cracking unit (FCCU) for maintenance. Respondents continued to operate the FCCU at a reduced rate and emissions from the FCCU were vented directly to the atmosphere at a rate that exceeded the allowable particulate emission rate in the SIP. Under the terms of the CAFO, CITGO agrees to pay $22,750 as a penalty, and to perform a supplemental environmental project (SEP) to develop a portion of the I & M Canal Path for recreational purposes (i.e., hiking, fishing, canoeing, and to promote the interconnection of the path with existing community bike paths) at a cost of $80,000.
Contacts: Mary McAuliffe, 312/886-6237; Kathy Keith, 312/353-9687

Confined Animal Feedlot Operation Operator Indicted for knowingly discharging animal waste without a permit.
David Inskeep was an operator of Inwood Dairy, Inc., a concentrated animal feedlot operation (CAFO) in Elmwood, Illinois, with 1,250 head of cattle. On September 21, 2005, a grand jury in Peoria in the Central District of Illinois issued a one-count felony indictment alleging that Inskeep knowingly discharged a pollutant to a water of the United States without an NPDES permit, violating the Clean Water Act, 33 U.S.C. Sections 1311(a) and 1319(c)(2).

The indictment alleged that on February 16 and 17, 2001, Inskeep used a flexible hose to knowingly discharge over one million gallons of cattle waste from the CAFO’s waste lagoon to an unnamed tributary of the Illinois River. The indictment also alleged that Inskeep discharged despite multiple IEPA employees telling him in the preceding few days that this discharge would be illegal. If convicted, Inskeep faces imprisonment for up to three years and a criminal fine of up to $50,000 per day of violation. A defendant is presumed innocent until proven guilty. U.S. EPA’s Criminal Investigation Division, the Illinois Department of Natural Resources, the Illinois Environmental Protection Agency and the Illinois State Police jointly investigated this matter.
Contact: Kris Vezner (312) 886-6827

Region 5 files Consent Agreement and Final Order with Badger Meter, Inc. of Milwaukee, Wisconsin
On September 26, 2005, Region 5 filed a Consent Agreement and Final Order (“CAFO”) simultaneously instituting and settling an action against Badger Meter, Inc. (“Badger Meter”), Milwaukee, Wisconsin, for alleged violations of Section 3005(a) of the Resource Conservation and Recovery Act of 1976 (“RCRA”), as amended, 42 U.S.C. § 6925(a). Badger Meter is a large quantity generator of hazardous waste who allegedly failed to meet certain conditions for an exemption from obtaining a permit for the storage of hazardous waste. Badger Meter allegedly failed to: 1) include a description of emergency equipment capabilities in its contingency plan; 2) train an employee in hazardous waste management procedures; keep three containers of hazardous waste stored closed; label two containers; 3) document the time of weekly hazardous waste area inspection; and 4) obtain an assessment and certification from a licensed Professional Engineer as to the integrity of a hazardous waste storage tank at Badger Meter’s facility.  By violating its duty to obtain a permit, Badger Meter became subject to civil penalties under Sections 3008(a) and (g) of RCRA, 42 U.S.C. §§ 6928(a) and (g). Under this CAFO, Badger Meter agrees to pay $105,400 in civil penalties. The penalty represents a substantial sanction against Badger Meter, and will deter future violations.
Primary Contact: Kevin Chow, (312) 353-6181; Additional Contact: Paul Atkociunas, (312) 886-7502

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

Region 5 signs a Combined Complaint and Consent Agreement with Cognis Corporation
Region 5 initiated this enforcement action in September 2004. On September 27, 2005 Region 5 signed a combined complaint and consent agreement with Cognis Corporation of Cincinnati, Ohio to settle violations of the Stratospheric Ozone Standard at 40 C.F.R. Part 82, Subpart F, and Section 608 of the Clean Air Act. Specifically, Cognis Corporation failed to conduct follow up verification tests on its industrial process refrigeration units and failed to document the amount of class II refrigerant added to one of the units. As a result of the enforcement action, Cognis Corporation has certified that it is now in full compliance with Subpart F. As part of the settlement, Cognis Corporation will pay a penalty of $44,000.
Contacts: Deborah Carlson, Office of Regional Counsel, (312) 353-6121 and Brian Dickens, Air Division, (312) 886-6073.

Region 5 signs an Administrative Consent Order with Reilly Industries, Inc.
Region 5 initiated this enforcement action in March 2005, by issuing a Finding of Violation citing Reilly Industries for violations of the Stratospheric Ozone Standard at 40 C.F.R. Part 82, Subpart F, and Section 608 of the Clean Air Act. On September 6, 2005, Region 5 signed an administrative consent order with Reilly Industries requiring that the company comply with all applicable regulations found in 40 C.F.R. Part 82, including but not limited to the service, maintenance, repair, and disposal requirements set forth in Subpart F. Pursuant to the order, Reilly Industries developed a program to improve its recordkeeping practices under Part 82, including the recordkeeping practices of contractors hired by Reilly to service its industrial process and comfort cooling refrigeration units. Reilly also developed a program to study retrofitting its industrial process and comfort cooling refrigeration units to non-ozone depleting substances.
Contacts: Deborah Carlson, Office of Regional Counsel 312-353-6121; Sheila Desai, Air Division 312- 353-4150

U.S. EPA files administrative complaint against Circuitronics LLC, located in Wheaton, Illinois.
On September 30, 2005, Region 5 filed an administrative Complaint against Circuitronics LLC. The Complaint proposes a civil penalty of $46,224 and orders Circuitronics, among other things, to add information on facility emergency equipment to its hazardous waste contingency plan, and to maintain compliance with the RCRA training requirements. In the Complaint, Region 5 alleges that Circuitronics failed to: 1) obtain a complete integrity and installation assessment of its two hazardous waste storage tank systems; 2) include the location, description, and outline of the capabilities of its emergency equipment in its contingency plan; 3) provide annual training for employees with duties involving the management of hazardous waste for a period of four years; and 4) have an emergency coordinator who is familiar with all aspects of its contingency plan. Primary Contact: Jacqueline Miller, ORC, (312) 886-7167 and Todd Brown, Waste, Pesticides and Toxics Division, (312) 886-6091.

CAA VOC Emissions Case Against Picken’s Plastics, Jefferson & Ashtabula, Ohio, Settled With Complaint/CAFO
On September 29, 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 Pickens Plastics (Pickens) at its Jefferson and Ashtabula, Ohio reinforced plastics composites and fiberglass reinforced plastics production facilities. The Region alleges that Respondent violated the Clean Air Act, 42 U.S.C. § 7401 et seq., by violating the Ohio State Implementation Plan (SIP) and the Title V permits for the facilities, including violations of Ohio SIP rules 3745-31-05(A)(3) and 3745-21-07(G)(2), governing emissions from the facilities’ chop/gelcoat booths.

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.
Primary Contact: Andre Daugavietis, ORC, (312) 886-6663.

Region 5 signs a Combined Complaint and Consent Agreement with Brunswick Corporation, Mercury Marine Division.
Region 5 initiated this enforcement action against Brunswick Corporation, Mercury Marine Division (Mercury Marine), in September 2004. On September 29, 2005, Region 5 signed a combined complaint and consent agreement with Mercury Marine to settle violations of the secondary aluminum production National Emission Standards for Hazardous Air Pollutants (NESHAP) at 40 C.F.R. Part 63, Subpart RRR, and Section 112 of the Clean Air Act. Specifically, Mercury Marine failed to comply with reporting, testing and monitoring requirements of the secondary aluminum production NESHAP at its facility in Fond du Lac, Wisconsin. As part of the settlement, Mercury Marine will pay a penalty of $40,000 and complete three supplemental environmental projects (SEPs). For two of the SEPs, Mercury Marine will spend approximately $55,500 to install vapor recovery and vapor saver systems on its above ground gasoline storage tanks to reduce or eliminate gasoline vapor emissions. For the third SEP, Mercury Marine will spend approximately $107,500 to install diesel oxidation catalysts on vehicles owned by the company, the City of Fond du Lac, the County of Fond du Lac, and/or other municipal vehicles in Fond du Lac County.

Contacts: Deborah Carlson, Office of Regional Counsel, (312) 353-6121 and Tanya Boomer, Air Division, (312) 353-4145.

RCRA Subpart BB Case against Glidden/ICI Paints, Huron, Ohio resolved with Complaint/CAFO

On September 30, 2005, Region 5 filed a combination Complaint/Consent Agreement and Final Order simultaneously initiating and resolving an administrative penalty and compliance action against Respondent, the Glidden Company d.b.a. ICI Paints (“Glidden”), at its manufacturing facility in Huron, Ohio. The Region alleged that Glidden committed violations of federal Subpart BB and CC regulations at regulated equipment at the Huron facility. At the facility, four reaction vessels, in conjunction with the solvent sink, produce organic waste solvent, made up primarily of xylene and n-butanol. The spent solvent utilized at the facility in the resin production process has a volatile organic concentration of at least 10% by weight, and contacts up to four pumps and forty-eight valves associated with the hazardous waste system. The Region alleges that Respondent failed to mark equipment, monthly monitor pumps and valves, and keep records, in violation of 40 CFR §§ 262.34(a)(1)(ii), 265.1050(c), 265.1052(a)(1), 265.1057(a), and 265.1064(b)(1), of the Part BB regulations. Another, more minor, violation alleged is that Respondent failed to determine the maximum organic vapor pressure for hazardous wastes to be managed in tanks using tank level 1 controls and to maintain associated records, in violation of 40 CFR §§ 262.34(a)(1)(ii), 265.1085(c)(1), and 265.1090(b), of the Part CC regulations. These failures were identified in an inspection of the facility by the Region and OEPA on August 6, 2003.

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.)

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 5 files Administrative Complaint and Compliance Order against Visteon Corporation
On September 26, 2005, Region 5 filed an Administrative Complaint and Compliance Order under 40 C.F.R. Part 22 against Visteon Corporation. Visteon operates an auto parts facility in Milan, Michigan. EPA alleges that Visteon violated provisions of the approved Michigan RCRA program by failing to have an engineering integrity assessment performed on part of a hazardous waste tank system. The complaint proposes a penalty of $44,723.

Contact: Chuck Mikalian, primary contact, (312) 886-2242; Duncan Campbell, secondary contact (312) 886-4555

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.

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.