Enforcement Action Summary FY 2005 - November

November 1, 2004

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

U.S. Court of Federal Claims Enters Judgment for United States On Taking Claim.  On October 29, 2004, the United States Court for Federal Claims Court entered judgment for the United States on a taking claim that had been filed against the government. The Court found that the plaintiff, John R. Sand and Gravel Company, had no compensable property interest and thus awarded the plaintiff no damages or attorney fees.

The Metamora Landfill Superfund Site is located in Lapeer County, Michigan. The landfill began operations in 1955 as a privately owned, unregulated open dump utilized by residents of the Village of Metamora. The operator, Russell Parrish, began illegally accepting drums of liquid industrial wastes during the mid-1960s. This continued through the 1970s. At no point was it ever licensed to accept liquid industrial wastes.

In 1969, the Plaintiff, John R. Sand & Gravel Company, entered into a 50-year lease with Parrish which granted it the exclusive right to mine sand and gravel on the Parrish property. At the time plaintiff entered into the lease, the landfill was in existence and operating as a landfill.

In September 1984, the Site was placed on the NPL. A RI/FS was conducted and two RODs were issued: one requiring the excavation and disposal of more than 30,000 drums at the Site, and the second requiring the remediation of contaminated groundwater and the closure and capping of the landfill. Both of these RODs were implemented by the PRPs. In the area covered by the landfill cap, EPA required that institutional controls be put in place to preclude activities, including mining, that could disturb the cap.

In June 2002, Plaintiff filed a complaint alleging that the environmental remediation of the site that excluded Plaintiff from a portion of the site caused a physical taking of a portion of its sand and gravel mining lease. After a trial on liability, the Court ruled in the United States' favor that there was no taking and thus awarded the plaintiff no damages or attorney fees. The court's decision stated that the plaintiff lacked a compensable property interest because it took the mining lease subject to the existence of the landfill and allowed the landfill to continue to operate in an area that was subject to the lease. The court also went on to rule that any mining in the area of the landfill cap could impact the existing groundwater remediation and endangering the public health and safety, thereby creating a public nuisance. Since the mining would be a public nuisance, preventing the plaintiff from mining would not be a compensable interest.

Primary Contact: Peter Felitti (312) 886-5114.

Region 5 Issues FIFRA Joint Complaint and Consent Agreement and Final Order to Syngenta Crop Protection, Inc.  On November 4, 2004, Region 5 issued a joint Complaint and Consent Agreement and Final Order to Syngenta Crop Protection, Inc. (“Syngenta”), 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 Syngenta’s product, “PRINCEP 4L” 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. The ODA inspector also found that the pesticide product label for Syngenta’s product, “BICEP II MAGNUM” on a bulk storage tank at the HAS establishment did not contain the net contents of the bulk storage tank. EPA originally assessed a penalty of $5,940. Consistent with the provisions of the Enforcement Response Policy for FIFRA, EPA adjusted the penalty downward $891 for “good attitude”. Accordingly, proposed civil penalty has been mitigated from $5,940 to $5,049.

Contact: Catherine Garypie, Associate Regional Counsel 312-886-5825; Joseph Lukascyk, Enforcement Officer, 312-886-6233

Owner of Hardcoat, Inc. Found Guilty for Making False Statements. On November 5, 2004, Kenneth I. Heroux, owner of a metal finishing business named Hardcoat, Inc., at 7300 W. Lake St., in St. Louis Park, Minnesota was convicted by a federal jury in the District of Minnesota on two counts of making false statements in a matter within the jurisdiction of U.S. EPA in violation of 18 U.S.C. § 1001. The case involved statements and representations made to U.S. EPA and Hennepin County officials regarding a videotaped sewer inspection requested by the County of the sewer pipe leading from Hardcoat’s pretreatment unit. A videotape inspection of the sewer pipe ordered by Hardcoat, Inc. showed the pipe to be corroded and broken, whereupon Hardcoat replaced the pipe, videotaped the new pipe, and mailed the videotape of the new pipe to the County. Mr. Heroux was convicted for making false statements for repeatedly telling the County that the inspection company had found nothing wrong with Hardcoat’s sewer pipe during its inspection; and for making false statements to the County and U.S. EPA-CID during his interview that he had not known that the sewer pipe had problems worse than blockage, even after the sewer pipe had been excavated and replaced. George E. Miklasevics, an environmental consultant working for Hardcoat, was found not guilty on charges of conspiring with Mr. Heroux and making a false statement. Consequently, the corporation was found not guilty on the conspiracy charge. Mr. Heroux faces a statutory maximum sentence of up to five years imprisonment and a fine of up to $250,000.

Contact: David Mucha, Criminal Enforcement Counsel, 312-886-9032

November 8, 2004

No significant case developments to report.

November 15, 2004

Prison Sentence Affirmed for Hazardous Waste Defendant. On November 4, 2004, the Sixth Circuit Court of Appeals affirmed the conviction of Johan March, who was convicted in 2003 of illegally causing the transportation of hazardous waste. The evidence at trial showed that March paid a bail bondsman $10,000 to pick up spent solvents, acids and paint waste from Utility Enameling Company a bankrupt business March owned in Michigan. The hazardous waste was later found abandoned in a stolen trailer left outside a pool hall in Bay Shore, New York, and was cleaned up by EPA. In 2003, March was sentenced to a term of 21 months in prison, a two-year term of supervised release and ordered to pay $175,819.48 in restitution to the Superfund.

Primary contact, David M. Taliaferro, Criminal Enforcement Counsel 312-886-0815.

Plant Manager Charged with Clean Water Act; United States v. Paul Vinje. On November 16, 2004, Paul Vinje was charged in a one count information for 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 City of Piqua requires that all discharges to the sewer system must have a pH between 5.5 and 11. It is alleged that on or about February 11, 2002, Vinje negligently discharged or caused the discharge of wastewater with a pH below 5.5 into the City of Piqua sewer system. 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. 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. An information is only a charge and is not evidence of guilt. A defendant is entitled to a fair trial in which it will be the government's burden to prove guilt beyond a reasonable doubt.
Primary contact: Brad Beeson, Criminal Enforcement Counsel 440-250-1761.

Region 5 enters into a Consent Agreement and Final Order with Nufarm Americas, Inc. On July 30, 2004, Region 5 filed a civil administrative complaint against Nufarm Americas Inc., Burr Ridge, Illinois. On November 18, 2004, Region 5 filed a Consent Agreement and Final Order (CAFO) resolving violations of Section 12(a)(1)(A) of FIFRA, for Nufarm’s sale and distribution of unregistered pesticides, Atila 41% Herbicida-Fosfonico Glifosato, Marmina 6 D Herbicida Solucion Concentrada Acuosa, Marman 24-De 60 SL Marman Amina 6D, and 2,4-D/Mecoprop Manufacturing Concentrate, on 6 occasions. Nufarm exported these pesticides to foreign countries without having the foreign purchaser sign a statement acknowledging that the purchaser understands the pesticide is not registered for use in the United States and cannot be sold in the United States. A copy of that statement (referred to as the “Foreign Purchaser Acknowledgment Statement”) was not transmitted by Nufarm to an appropriate official of the government of the importing country. This settlement will promote greater awareness of pesticide product labeling requirements, specifically with regard to the requirements in 40 C.F.R. § 168.75(b)(4)(i) concerning the export of pesticide products to foreign countries. Moreover, it will diminish the likelihood of future pesticide exports without the Foreign Purchaser Acknowledgment Statement. The Complaint proposed a penalty of $33,000. In consideration of Nufarm’s willingness and efforts to achieve compliance as well as cooperation during negotiations, this matter will settle for $26,400.
Joanna Glowacki, Associate Regional Counsel, primary contact 312-353-3757, or Terence Bonace, Life Scientist, additional contact 312-886-3387

Region 5 files a combined Administrative Complaint and Consent Agreement with Steven Veh, d/b/a/ Terrace Court Apartments. On March 24, 2004, Region 5 issued a Notice of Intent to file a civil administrative complaint against Steveh Veh, Terrace Court Apartments, Kenosha, Wisconsin. On November 19, 2004, Region 5 simultaneously filed an administrative complaint and Consent Agreement and Final Order (CAFO) resolving violations of 40 C.F.R. Part 745, Subpart F, the Lead Paint Disclosure Rule, and Section 409 of TSCA This settlement will promote greater awareness of the Lead Paint Disclosure Rule for those selling or leasing residential property constructed prior to 1978. Terrace Court Apartments will pay a penalty of $3,000.
Contact Joanna Glowacki, Associate Regional Counsel, primary contact 312-353-3757, or Terence Bonace, Life Scientist, additional contact 312-886-3387

Region 5 enters Complaint and Consent Agreement for unlawful distribution of an unregistered pesticide by Minuteman International Inc. of Addison, Illinois.  Region 5 has reached a settlement with Minuteman International Inc. involving the unlawful distribution of a pesticide that was not registered in violation of Section 3 of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Our discussions with the company indicate that a limited quantity of product was distributed in the United States with a Canadian product label. Upon learning of the illegal distribution, the company initiated a recall of the product and implemented internal procedures to prevent a recurrence of illegal distribution. The enforcement team originally proposed a penalty of $5500, but agreed to mitigate that amount under the FIFRA ERP by 20% for “attitude and good faith efforts to comply.” Minuteman has agreed to pay a civil penalty of $4400 to settle this matter prior to the filing of an administrative complaint.

Contact: Marcy Toney, Associate Regional Counsel 312-886-3186; additional contact: Terence Bonace 312-886-3387.

November 22, 2004

No significant case developments to report.

November 29, 2004

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.

Primary contact, Brad Beeson, Criminal Enforcement Counsel (440) 250-1761.

Company President Sentenced for Illegal Asbestos Removal and Disposal; United States v. Brett B. Pomeroy . On November 30, 2004, Brett B. Pomeroy was sentenced for the illegal removal and disposal of asbestos. Mr. Pomeroy was sentenced to 6 months of home confinement to be followed by 18 months of probation. In addition Mr. Pomeroy was ordered to reimburse the Ohio Environmental Protection Agency for the costs to properly dispose of the asbestos, approximately $2,100. Mr. Pomeroy was the President of Nelson Bedding Products, Incorporated (“Nelson Bedding”), an Ohio corporation. Nelson Bedding, located in Youngstown, Ohio, was a mattress manufacturing company that sold mattresses directly to the public. The indictment charged Mr Pomeroy with directing an individual to illegally remove asbestos from the basement of the Nelson Bedding building. In addition, Mr. Pomeroy was charged with failing to properly dispose of the asbestos. This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio Environmental Protection Agency, the Mahoning/Trumbull County Air Pollution Control Agency, and U.S. EPA CID, all members of the Northeast Ohio Environmental Crimes Task Force.
Primary contact, Brad Beeson, Criminal Enforcement Counsel, (440) 250-1761.

Region 5 Reaches Agreement with Tecumseh Products Company to Accept Insurance Policy as Financial Assurance Under RD/RA Consent Decree.  Region 5, working in close cooperation with the Office of Site Remediation Enforcement (OSRE), reached final agreement with Chubb Insurance Company and Tecumseh Products Company on the terms of an insurance policy that will serve as financial assurance under the RD/RA Consent Decree for the Sheboygan River and Harbor Site. While EPA has agreed to use insurance for financial assurance in other cases, this is the first one using a Chubb policy. The primary feature of the policy is that in the event of a work takeover by EPA, EPA has rights to the remainder of the $28 million remedy funding account. Richard Nagle, primary contact, 312-353-8222; Timothy Dicinto and Anne Berebue, OSRE, additional contacts, 202-564-4790 and 202-564-6065.

High School Janitor Convicted of Using Mercury for Unlawful Purpose.  At the time of the incident investigated, George C. Bush was a school engineer at a public high school called Finney High School in Detroit, Michigan. On February 4, 2004, the Michigan Attorney General filed a felony complaint against Bush alleging in one count that Bush violated MCLA 750.200i by either delivering, possessing, transporting, placing, using or releasing a harmful substance (mercury) for an unlawful purpose. Bush’s trial began August 16, 2004, in the Wayne County Circuit Court before Judge John J. O’Hair. On August 23, 2004, the jury returned a hung verdict. After a retrial, the jury returned a guilty verdict on December 1, 2004. Specifically, in summer 2001 Bush participated in Finney High’s program to eliminate mercury at the school by gathering mercury and mercury-containing items for proper disposal. In the course of this program, a large barometer containing mercury disappeared. On October 11, 2001, Bush threatened to several people to close the school if he didn’t receive prompt attention regarding a labor dispute. Hours later, Bush reported mercury spills throughout the school. Due to the toxicity of mercury vapors, the school dismissed all students and closed for four days for decontamination.The Detroit Environmental Crimes Task Force investigated this case. U.S. EPA’s Criminal Investigation Division is a member of this task force. Primary contact, Kris Vezner (312) 886-6827.

Region 5 Reaches Agreement with Tecumseh Products Company to Accept Insurance Policy as Financial Assurance.  Under RD/RA Consent Decree. Region 5, working in close cooperation with OSRE, reached final agreement with Chubb Insurance Company and Tecumseh Products Company on the terms of an insurance policy that will serve as financial assurance under the RD/RA Consent Decree for the Sheboygan River and Harbor Site.  While EPA has agreed to use insurance for financial assurance in other cases, this is the first one using a Chubb policy. The primary feature of the policy is that in the event of a work takeover by EPA, EPA has rights to the remainder of the $28 million remedy funding account. Richard Nagle, primary contact, 312-353-8222; Timothy Dicinto and Anne Berebue, OSRE, additional contacts, 202-564-4790 and 202-564-6065.