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Enforcement Action Summary FY 2006 - July
July 3, 2006No significant case developments to report. July 10, 2006Manager Sentenced for Making Illegal Discharges to Creek; United States v. Edward F. Janesz. On June 28, 2006, Edward F. Janesz was sentenced for directing illegal discharges into Shantee Creek. Mr. Janesz was ordered to pay a $5,000 fine. Mr. Janesz was the manager of the Kurtz Bros. facility in Toledo, Ohio. Kurtz Bros. sells landscaping materials to the public in Ohio. Compost and mulch are produced and stored at the Toledo facility. As part of the production process, Kurtz Bros. applies water to the compost and mulch piles. The runoff from these piles, along with storm water runoff from the facility, is collected in a leachate retention pond located at the facility. The leachate in the retention pond contains pollutants, including ammonia. The information, filed February 21, 2006, charges that on two occasions in 2004, Mr. Janesz directed a Kurtz Bros. employee to discharge leachate from the retention pond into Shantee Creek, which borders the facility. The water in Shantee Creek ultimately flows into Lake Erie. 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. U.S. District Court Grants United States’ Motion for Partial Summary Judgment in CERCLA 104(e) Enforcement Action against Benjamin Hirsch and Summit Equipment & Supply, Inc. On July 10, 2006, the United States District Court for the Northern District of Ohio filed an order granting the United States’ motion for partial summary judgment against defendants Benny Hirsch and his corporation, Summit Equipment & Supply, Inc. (SES), ordering them immediately to produce information responsive to a CERCLA 104(e) request for financial information that had been served on them in 2004 and which they completely failed to answer. The motion and relief awarded are “partial” because the U.S. has not yet sought a specific penalty for the failure to respond; this remains pending. An earlier motion to strike the defendants’ affirmative defenses was also denied as moot. Benny Hirsch and SES are, respectively, the owner and operator of the Summit Equipment & Supply Site, a scrap and salvage yard in Akron, Ohio. In 1990, after commencing a series of removal actions to address heavy PCB contamination and other threats at the Site, the United States brought a CERCLA 107 cost recovery action against Hirsch, SES, and three other defendants for past and future response costs incurred and to be incurred at the Site. Hirsch and SES later counterclaimed against the United States, alleging that the U.S. Defense Department had arranged for disposal of hazardous substances at the Site, and also impleaded an additional 51generators as third-party defendants. In 1992, the United States prevailed on a motion for partial summary judgment holding Hirsch and SES liable to the United States, whereupon it became these two parties’ responsibility to prosecute their counterclaim and third-party claims. They did not, despite the court’s issuance of an order to show cause why their case should not be dismissed. In the meantime, EPA and the U.S. Department of Defense cleaned up the Site, and EPA reached a settlement with the remaining third-party generator defendants in September 2005, effectively barring Hirsch and SES from recovering against them. Hirsch and SES were invited to participate in the discussions leading to the settlement, but they did not. To obtain information about Hirsch and SES’s ability to contribute to the settlement, EPA served them with a CERCLA 104(e) request for financial information in August 2004. There was no response to this or to a follow up letter. The United States made demand and, after receiving no response, filed an enforcement action in the Court before which the cost recovery case is pending. Defense counsel filed an answer and participated in an initial status conference, but did not file the required Rule 26(a) disclosures, did not respond to the United States’ interrogatories or request for production of documents, did not serve any discovery requests on the United States, and did not respond to the United States’ oral and written offers to confer in good faith over the neglected discovery requests. The United States then moved for partial summary judgment, and the defendants did not respond, except to make an untimely request for an extension of time to file an opposing brief. Additional proceedings may ensue, because while EPA recovered its clean up costs in the third-party consent decree, the United States is still owed several million dollars that the Defense Department incurred during the remedial phase of the clean up. Century Tube Corp. Madison, IN, CAFO Signed On June 29, 2006, Region 5 filed a Joint Civil Complaint and Consent Agreement. Under the terms of the agreement, Century Tube Corporation must perform an EPCRA Section 313 environmental assessment of its facility to determine its compliance with EPCRA Section 313, within six months of entry of the CAFO, and provide its findings to the Agency. This self-audit agreement allows Century Tube to fully comply with all the requirements of the Agency's self-disclosure policy and allows 100% penalty mitigation for past violations. Century Tube voluntarily disclosed to the Agency that it failed to timely submit a Form Rs for manganese for reporting years 2000 through 2002, in violation of Section 313 of EPCRA, 42 U.S.C. § 11923. There was no economic benefit associated with this failure to report. CAFO signed by Director, Waste, Pesticides and Toxics Division. Complaint and Consent Decree Filed for the City of Fostoria, Northern District of Ohio On July 6, 2006, DOJ filed on behalf of EPA and the State of Ohio, a complaint and consent decree identifying and resolving Clean Water Act compliance issues with the City of Fostoria, Ohio. Under the terms of the consent decree, the City of Fostoria will pay penalties of $15,000 to the U.S. Treasury and $15,000 to the State of Ohio, to redress past NPDES noncompliance. The consent decree also requires the performance of injunctive relief designed to improve current operation of the plant, and to study, plan and implement construction which will both control CSO discharges and permanently improve plant and collector system operation. The City of Fostoria operates a wastewater treatment plant (WWTP) and collector system which discharges to the Portage River. The WWTP historically had difficulty consistently meeting its NPDES permit requirements; during the period from December 1, 2000, to November 30, 2005, the City had over 4,000 violations of its NPDES permit. The City was very cooperative throughout the consent decree negotiation process and made significant progress at eliminating its violations of its NPDES permit. The City also worked diligently with DOJ and EPA to establish appropriate Long-Term Control Program schedule dates. DOJ will public notice the consent decree; following this opportunity for notice and comment, DOJ will request entry of the consent decree. Annette Lang, Trial Attorney, DOJ, represents the United States. Primary contact, Deirdre Flannery Tanaka, ORC, 312-886-6730. Petition for Relief from Future Cleanup Obligations under Consent Decree is denied (Case 1:98-CV-06389) Yeoman Creek Landfill Superfund Site, Waukegan, Illinois On June 27, 2006, Matthew F. Kennelly, United States District Court Judge for the Northern District of Illinois, Eastern Division issued a Memorandum Opinion and Order denying the petition filed by the Waukegan School District No. 60 (District) for relief from its future obligations in the United States v. USX Corp., et al., Consent Decree. The 1999 Consent Decree requires the District and six other parties to conduct the remedial design and remedial action at the Yeoman Creek Landfill Superfund site. The Site remedy construction is essentially complete at this time. The District asked the Court to modify the decree under the equitable considerations of FRCP Rule 60(b)(5), arguing that the District was experiencing financial hardship, and arguing that the District is not a liable “person” for the Site under CERCLA. In particular, the District claims that it may not have owned at the time of disposal, and may not now own, the Site; alleging that the land is owned by the Lake County School Trustees who hold title to the land in trust for the benefit of the District. In the alternative, the District asked the Court to modify the decree for the “catch-all” equitable considerations of FRCP Rule 60(b)(6). The Court rejected the District’s petition under FRCP Rule 60(b)(5) that unanticipated factual changes made prospective application of the Decree inequitable. The Court determined that the District had failed to show any changed factual conditions, including the District’s financial circumstances and ownership status, compared to facts available at the time the District entered into the Decree. The Court also rejected the District’s FRCP Rule 60(b)(6) petition as untimely, since the factual basis for ownership status claims have not changed and were available to the District when it entered the Decree seven years ago. Court Grants United States Motion for Summary Judgment against Apex Oil Company. On July 6, 2006, the United States District Court for the Southern District of Illinois granted the United States motion for partial summary judgment against the Apex Oil Company. The court held that “Pursuant to 28 U.S.C. § 2201, the Court hereby DECLARES that the injunction sought by the government in its first cause of action could not have been discharged in the bankruptcy proceedings entered into by Defendant’s predecessors.” The two count complaint in this matter seeks injunctive relief under Section 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6973 requiring Apex Oil to cooperate and participate in the cleanup of a large plume of petroleum-based substances located under the Village of Hartford, Illinois. Among other things, vapors from the plume have migrated into homes in Hartford causing fires, explosions, and evacuations. The plume is the result of commingled releases from pipelines, refineries, and other petroleum facilities in the area. Apex Oil is the successor by merger to former owners and/or operators of a refinery and associated pipelines and sewers located in Hartford, Illinois from which releases of gasoline, diesel fuel, and other petroleum-based substances have occurred. These releases contributed to the large subsurface plume of petroleum-based substances under Hartford. Apex has refused to join the clean up effort currently being conducted by four other responsible parties because, among other things, Apex contends that a Chapter 11 bankruptcy in the late 1980s discharged any liability it may have had for the site. On June 23, 2006, the United States filed a second motion for summary judgment on Count I of the Complaint. The case is scheduled for trial in October of 2006 Primary contact, Brian Barwick, ORC, 312-886-6620. Pollution Control Industries CAFO Signed On June 30, 2006 Region 5’s Director of the Air and Radiation Division signed a Consent Agreement and Final Order, simultaneously commencing and concluding an administrative action under the Clean Air Act against Pollution Control Industries, Inc. Pursuant to the terms of the settlement, Pollution Control Industries will pay $25,000 and undertake a SEP worth $117,000 over a five-year period. Pollution Control Industries, an Indiana corporation, processed liquid wastes in 55-gallon drums at their East Chicago facility for fuel blending. Region 5 determined that the facility failed to have certain permits and pollution control devices. Region 5 reduced the penalty and injunctive relief originally proposed in the opportunity-to-confer letter after the facility was substantially destroyed in a fire. CAFO signed by Director, Air and Radiation Division. July 17, 2006Business Owner Charged With Spilling Oil Onto A Tributary Of The Great Miami River; United States v. George L. Flory. On July 12, 2006, George L. Flory pled guilty to the one-count Information charging him with spilling oil onto a tributary of the Great Miami River. Mr. Flory was the owner and operator of Personal Touch Environmental ("PTE" ), a company which specialized in the recycling of waste oil collected from Dayton area residences and facilities. Mr. Flory stored the waste oil in drums and storage tanks at the PTE facility which is bordered by an unnamed tributary of the Great Miami River. On February 16, 2004, there were approximately 700 drums and storage tanks at the PTE facility, many of which were leaking oil directly into the tributary bordering the facility. The information charged that on numerous days beginning on or about April 16, 2002 and continuing to on or about February 12, 2004, Mr. Flory knowing caused waste oil stored at the PTE facility to be discharged into and upon an unnamed tributary of the Great Miami River. This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio Environmental Protection Agency, the U.S. Coast Guard, and the U.S. EPA CID, all members of the Southwest Ohio Environmental Crimes Task Force. The defendant's sentence will be determined by the Court after review of factors unique to this case, including the defendant's prior criminal record, if any, the defendant's role in the offense and the 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. Contact: Brad Beeson (440) 250-1761 CAFO Operator Sentenced For Negligently 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). On March 24, 2006, Inskeep appeared in Peoria in the Central District of Illinois and pled guilty to a one-count misdemeanor information alleging that Inskeep negligently 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)(1). On July 13, 2006, Inskeep appeared in Peoria in the Central District of Illinois and was sentenced to 30 days imprisonment; a criminal fine of $3,000; and a special assessment of $25. The plea agreement stated that on February 17, 2001, Inskeep used a flexible hose to discharge over one million gallons of cattle waste from the CAFO's waste lagoon to an unnamed tributary of the Illinois River. The agreement also stated that Inskeep discharged despite multiple IEPA employees telling him in the preceding few days that this discharge would be illegal. 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. Region 5 files Consent Agreement and Final Order with South Haven Sewer Works, Inc. - On March 31, 2006, Region 5 and South Haven Sewer Works, Inc., ("South Haven") entered into a Consent Agreement and Final Order ("CAFO") simultaneously initiating and resolving U.S. EPA's claims alleging that South Haven violated Section 103 of CERCLA and Section 304 of EPCRA when it failed to give immediate notice of a release of a reportable quantity of chlorine. The initial proposed penalty was $53,118. Based on South Haven's inability to pay a substantial penalty, in the CAFO the parties agreed to resolve this matter by South Haven's payment of a civil penalty of $23,942.69. Region 5 files Consent Agreement and Final Order with V&V Management, Veselko Leko, and Vinko Leko - On April 14, 2006, Region 5 and V&V Management, Veselko Leko, and Vinko Leko, entered into a Consent Agreement and Final Order ("CAFO") resolving U.S. EPA's claims alleging that Clayton Court Apartments, LLC, violated the Residential Lead-Based Paint Hazard Reduction Act of 1992 (the "Lead-Based Paint Hazard Reduction Act"), 42 U.S.C. § 4852d et seq., and Sections 409 and 16 of TSCA, 15 U.S.C. §§ 2689, 2615, and 40 C.F.R. §§ 745.107(a)(1) and 745.113(b)(1), (b)(2), (b)(3), (b)(4), and (b)(6) by failing to make certain required disclosures in the leasing of fifteen apartments. U.S. EPA filed its complaint in this matter on September 23, 2005, and sought a penalty of 107,030. In consideration of the facts and circumstances of this matter, Respondents' cooperation, their agreement to complete a Supplemental Environmental Project (funding an environmental quality assessment to measure lead contaminated dust emissions from single-family housing demolition in the City of Chicago), and other factors as justice may require, U.S. EPA agreed to mitigate the proposed penalty of $107,030.00 to $37,724.00. Specifically, the parties agreed to the payment of a civil penalty component of $27,724.00 together with the completion of the Supplemental Environmental Project costing $10,000.00. Region 5 signs a Consent Agreement and Final Order with B&B Metals Processing Company, Inc. Region 5 initiated this enforcement action against B&B Metals Processing Company, Inc. (B&B Metals) in September 2005. On June 20, 2006, Region 5 signed a consent agreement and final order with B&B Metals to settle violations of the secondary aluminum production NESHAP at 40 C.F.R. Part 63, Subpart RRR and Section 112 of the Clean Air Act. Specifically, B&B Metals failed to comply with reporting, testing and monitoring requirements of the secondary aluminum production NESHAP at its facility in Newton, Wisconsin. As part of the settlement, B&B Metals will pay a $30,000 penalty and complete a supplemental environmental project (SEP). In completing the SEP, B&B Metals will spend approximately $80,000 to pave a roadway and truck turn around area on its property to reduce emissions of particulate matter. United States District Court for the Southern District of Indiana, Indianapolis Division Enters a Complaint and Consent Decree Resolving Violations of the Clean Water Act by Remy International, Inc. and Franklin Power Products, Inc. at its Diesel Engine Rebuilding Facility in Franklin, Indiana. On June 22, 2006 the United States District Court for the Southern District of Indiana entered the consent decree between the United States and Remy International, Inc. and Franklin Power Products, Inc. (Defendants) resolving violations of the Clean Water Act by Defendants at its diesel engine rebuilding facility in Franklin, Indiana (Civil Action No. 1:06-cv-0973-JDT-TAB). On June 21, 2006 the United States filed a complaint against Defendants and concurrently filed a proposed consent decree in the Southern District Court of Indiana, pursuant to Section 309 of the Clean Water Act (CWA), 33 U.S.C. § 1319, against Defendants for alleged violations of Section 307 of the CWA, 33 U.S.C. § 1317, and its implementing regulations. In its complaint, the United States alleged the following violations of the metal finishing pretreatment standards for new sources as part of its first claim of relief: (1) on numerous occasions from August 1999 through June 2002, Defendants' Facility discharged pollutants into the Franklin POTW in violation of the monthly average metal finishing pretreatment limits in 40 C.F.R. § 433.17(a), as modified by the combined wastestream formula, for zinc and lead and thus in violation of Section 307(d) of the CWA, 33 U.S.C. § 1317(d); (2) on two occasions from October 1999 through November 1999, Defendants' Facility discharged pollutants into the Franklin POTW in violation of the daily maximum metal finishing pretreatment limit in 40 C.F.R. § 433.17(a), as modified by the combined wastestream formula, for zinc and thus in violation of Section 307(d) of the CWA, 33 U.S.C. § 1317(d); and, (3) on or about May 18, 2000, Defendants' Facility discharged pollutants into the Franklin POTW in violation of the daily maximum metal finishing pretreatment limit in 40 C.F.R. § 433.17(a), as modified by the combined wastestream formula, for chromium and thus in violation of Section 307(d) of the CWA, 33 U.S.C. § 1317(d). The United States alleged the following violations of local limits as part of its second claim of relief: (1) on numerous occasions from July 1999 through October 2005, Defendants' Facility discharged pollutants into the Franklin POTW in violation local limits, established pursuant to 40 C.F.R. §§ 403.5(c) and (d) of the general pretreatment regulations, for oil and grease, copper, lead and zinc and thus in violation of Section 307(d) of the CWA, 33 U.S.C. § 1317(d). The Defendants have agreed to pay a civil penalty of $851,012.50 to resolve the past violations alleged in the complaint. Primary Contacts: Tamara Carnovsky, Office of Regional Counsel (312) 886-2250 and James Coleman, Water Division (312) 886-0148. DOJ lodges De Minimis Consent Decrees with PPG Industries and Morgan Adhesives On May 26, 2006, DOJ lodged two partial consent decrees in Federal District Court for the Northern District of Ohio embodying de minimis settlements under Section 122(g)(1) of CERCLA: one with PPG Industries; the other with Morgan Adhesives Company. They resolve cost recovery claims relating to the Industrial Excess Landfill Superfund Site in Uniontown, Ohio that the United States brought in U.S. v. Industrial Excess Landfill, Inc., et al., Case No. 5:89 CV 1988, 5:91 CV 2559. Under the terms of the decrees, PPG will pay to the EPA Hazardous Substance Superfund $752,500, while Morgan will pay $334,016. Contact: Timothy Thurlow (312) 886-6623 Region 5 resolves EPCRA 313 case against Schroeder Milk Co., Inc. (Maplewood, MN) On May 9, 2006, the Acting Regional Administrator signed a Consent Agreement and Final Order (CAFO) in which Schroeder Milk Co., Inc. agreed to pay penalty of $6,123 for violations of Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 at its Maplewood, Minnesota facility. Specifically, Schroeder failed to timely submit a Form R report for nitric acid for the 2002 calendar year. The CAFO became effective on May 11, 2006. Contact: Timothy Thurlow 312-886-6623; Additional Contact: Terry Bonace 312-886-3387 Region 5 Issues Notice of Noncompliance to DaimlerChrysler Corp., Resolving Voluntarily Disclosed Violations at its Warren, Michigan, Truck Assembly Facility. On June 22, 2006, the Region issued a Notice of Noncompliance and Final Order resolving violations DaimlerChrysler disclosed to Region 5 on September 9, 2005. The self-disclosure pertained to DaimlerChrysler's Warren, Michigan, truck assembly plant's failure to file Tier II forms with the local SERC, LEPC and fire department for calendar years 2003 and 2004 reflecting storage of several powdered resins from paint process overspray. After determining that DaimlerChrysler complied with all nine criteria of the Agency's Audit Policy and that DaimlerChrysler accrued no discernment economic benefit, the Region determined to forego a gravity-based penalty of approximately $49,857. July 24, 2006Hazardous Waste Reclamation Company Officials Plead Guilty Relating to a Hazardous Waste Transportation, Storage and Disposal Conspiracy. On January 20, 2006, a grand jury in the Central District of Illinois returned an 11-count indictment against a hazardous waste reclamation company and five of its former officers and employees. The indictment charged Hydromet Environmental (USA), Inc.; William A. Morgan, its former CEO; John E. Pugh, its former plant manager; Julianna H. Bauter, its former environmental compliance official; Douglas Bennett, its former chemist; and Ronald I. Martin, a former warehouse supervisor, with conspiring, from 1999 to 2003, to illegally transport, store and dispose of hazardous wastes in violation of RCRA, and conspiring to make false statements to IEPA. The defendants were also variously charged with making false statements to IEPA and illegally transporting hazardous waste without a manifest. On July 13, 2006, Martin appeared in Urbana in the Central District of Illinois and pled guilty to the indictment count charging him with making a false statement to IEPA. On July 14, 2006, Pugh appeared in Urbana in the Central District of Illinois and pled guilty to the indictment count charging him with criminal conspiracy. According to the indictment, Hydromet owned and operated an unsuccessful hazardous waste reclamation facility in Newman, Illinois. To continue operation and avoid the costs of safely disposing of hazardous wastes, the defendants stored hazardous wastes in a dilapidated warehouse in East Chicago, Indiana; hid other hazardous wastes on-site from the IEPA, then disposed of the wastes by falsely declaring them to be non-hazardous materials, including by sending them to a non-hazardous landfill in Indianapolis, Indiana; and falsely told IEPA that the Newman facility was fully operational and ready to receive hazardous wastes when in fact many necessary components and items of equipment were missing, broken or inoperable. For each defendant, conviction carries a potential prison term of up to five years on the conspiracy, transportation-to-an-unpermitted-facility and false statement counts; two years on the transportation-without-a-manifest counts; and criminal fines of the higher of up to $50,000 per day or $250,000. An indictment is only an accusation and the law presumes that a defendant is innocent until convicted at trial. U.S. EPA's Criminal Investigation Division, the Illinois Department of Natural Resources and IEPA jointly investigated this matter. Company President And Company Charged For Illegal Discharges To The Sewer System And A Hazardous Waste Violation; United States v. Melvin Tatman And Multi-Service, Inc. On July 27, 2006, Melvin Tatman and Multi-Service, Inc. (“MSI”) were charged in a four-count Information for illegally discharging industrial wastewater into the Dayton sewer system and for a hazardous waste violation. Mr. Tatman is the owner and President of MSI, an Ohio corporation, which was a textile cleaning facility in Dayton, Ohio. The industrial laundering operation at the facility produces wastewater that includes heavy metals, waste oil, and organic chemicals. The Information alleges that Mr. Tatman and MSI knowingly discharged wastewater with a pH below 5.0 into the Dayton sewer system in the first count, that Mr. Tatman and MSI negligently discharged ignitable wastewater into the Dayton sewer system in the second count, and that Mr. Tatman and MSI negligently bypassed the pretreatment system associated with the industrial laundering operation at MSI’s facility in Dayton. In the last count, the Information alleges that MSI knowingly caused 3,500 gallons of ignitable hazardous waste to be transported without a manifest. 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 Dayton, and the U.S. EPA CID, all members of the Southwest Ohio Environmental Crimes Task Force. If convicted, the defendant's sentence will be determined by the Court after review of factors unique to this case, including the defendant's prior criminal record, if any, the defendant's role in the offense and the 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. Contact: Brad Beeson (440) 250-1761 Region 5 Files a Combined Complaint and Consent Agreement with RAJA Foods, LLC in Skokie, IL Region 5 initiated prefiling discussions on this matter in June, 2006. The proposed penalty was $11,700. On July 21, 2006Region 5 filed a joint complaint and consent agreement with the Respondent to settle violations of Section 12(a)(1)(A) of FIFRA, 7 U.S.C. § 136j(a)(1)(A). Specifically, the Respondent distributed or sold an unregistered pesticide product--Dettol Liquid Antiseptic/Disinfectant and Dettol Antiseptic Germicidal. During settlement discussions, the Respondent agreed to pay a civil penalty of $9,360. Contact: Nidhi O’Meara, primary contact 312/886-0568; Terry Bonance, additional contact 312-886-3387. Region 5 Issues a Multi-Media Final Determination Letter to F & M Mafco Incorporated, Harrison, Ohio. Between November 23, 2004 and May 31, 2006, F & M Mafco, Incorporated., (F & M Mafco) voluntarily disclosed to U.S. EPA violations of (1) Section 3005(a) of RCRA, 42 U.S.C. § 6925(a), for failing to label its hazardous waste paint accumulation drum with the words “hazardous waste” and failing to maintain and post updated emergency response information as provided in OAC 3754-52-34(C)(1)(b) and OAC 3754-52-34(D)(5)(b) as conditions of maintaining its small quantity generator exemption from the requirement that it have an operating permit or interim status from January 2000 until January 6, 2005; (2) Section OAC 3745-66-74 [40 C.F.R. 265.174] for failing to perform and document hazardous waste generator inspections from January 2000 until January 10, 2005; (3) Section 301 of CWA, 33 U.S.C. § 1311, for failing to obtain a NPDES permit from Ohio EPA to discharge treated wastewater from approximately 1983 until March 1, 2005; (4) Section 301 of the CWA, 33 U.S.C § 1311, for failing to fully implement a storm water pollution prevention plan from approximately 1990 until January 14, 2005; (5) Section 311 of the CWA, 33 U.S.C § 1321, for failing to maintain Spill Prevention, Control and Countermeasure (SPCC) plan from approximately 1980 until March 3, 2005; (6) Section 311 of CAA, 42 U.S.C. § 7411, for failing to obtain a Permit to Install (PTI) and Permit to Operate (PTO) from Ohio EPA for hand spray painting or failure to maintain daily records sufficient to demonstrate de minimus source from approximately 1995 until March 18, 2005; and (7) Section 311 of the CAA, 42 U.S.C § 7411, for failing to obtain PTI and PTO from Ohio EPA and to employ particulate emission control equipment for abrasive sandblasting operations from approximately 1995 until April 15, 2005. F & M Mafco 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 July 21, 2006, after reviewing F & M Mafco’s voluntary disclosure under the Self Disclosure Policy, the Region issued a Final Determination that F & M Mafco’s disclosures met all the conditions of the Policy and that the Region would therefore not seek any penalty for the disclosed violations. Contacts: ORC Contact: Tamara Carnovsky 312-886-6829; WD Contact: Leon Acierto 312-886-6702; ARD Contact: Jeffrey Bratko 312-886-6816; WPTD Contact: Duncan Campbell 312-886-4555; SFD Contact: Philip Wicklein 312-886-0185. July 31, 2006Region 5 Resolves Clean Water Act Case Against Buckingham Coal Company (Glouster, Ohio). On July 19, 2006, the Acting Regional Administrator signed a Consent Agreement and Final Order (CAFO) in which Buckingham Coal Company agreed to pay a penalty of $73,500 for three violations of Section 301 of the Clean Water Act (CWA) at two of its mine sites in Monroe Township, Perry County, Ohio. In addition, the parties entered into an Administrative Compliance Order on Consent (ACO), under Section 309(a) of the CWA, to ensure Buckingham Coal’s compliance with the CWA at those sites. The ACO became effective on May 26, 2006. In the combined administrative complaint and CAFO, Region 5 specifically alleged that on three separate occasions, Buckingham Coal discharged pollutants from a point source into a navigable water without a permit issued under Section 404 of the CWA. First, approximately 2,400 cubic yards of shot rock stockpiled by Buckingham Coal from a mine construction project collapsed and filled approximately 900 linear feet of an intermittent stream. Second, Buckingham Coal placed approximately 90 cubic yards of brown sandstone fill material into intermittent and ephemeral streams, covering approximately 0.01 acre of stream area (approximately 3 feet by 100 linear feet), in association with the construction of a railroad spur. Finally, Buckingham Coal used fill to construct a 140 foot culvert, impacting 160 feet of a perennial stream. All of the impacted streams are unnamed tributaries of Sunday Creek, which is a water of the United States and a navigable water under the CWA. The parties agreed to settle the matter for $73,500. The parties agreed that settling the matter, without further litigation, was in the public interest. Region 5 received no public comments on the proposed settlement. The CAFO will become effective on August 18, 2006. Ann Coyle, primary contact, 312-886-2248; Melissa Gebien, secondary contact, 312-886-6833. Bankruptcy Court Approves Several Settlements Totaling $16.5 Million Between EPA, Debtor and Various State Agencies In EaglePicher Chapter 11 Case Involving Contaminated Properties In Regions 5, 6 and 7 On July 26, 2006, Chief Judge Aug of the United States Bankruptcy Court for the Southern District of Ohio, Western Division ( Cincinnati) approved five settlement agreements involving contaminated properties in Illinois, Michigan, Kansas, and Oklahoma. The settlement agreements resolved the United States' Objection to the Debtor's Reorganization Plan. EaglePicher filed for protection under Chapter 11 (reorganization) of the Bankruptcy Code in April 2005. Initially, EaglePicher informed the Court that it would not attempt to abandoned various contaminated parcels owned by EaglePicher. In late January 2006, however, EaglePicher filed its initial Reorganization Plan, which called for abandoning sixteen contaminated parcels (including four in Michigan, two in Ohio and one in Illinois). The United States filed a formal objection in late February 2006. Shortly after the objection was filed, EaglePicher amended its Reorganization Plan, moving away from abandonment and towards a custodial trust approach. Specifically, EaglePicher stated in its amended Reorganization Plan that upon reorganization, it would transfer title to the contaminated properties to a custodial trust and fund the trust in order to remediate the properties. Region 5 had no information on file regarding the properties, and immediately utilized site visits and state file reviews in order to determine the response activities required at the properties and their associated costs. Additionally, between March 5 and May 12, EaglePicher provided over 15,000 pages of documents related contamination at the Region 5 properties. The parties were able to reach a settlement regarding all of the contaminated properties except those in Ohio:
The final confirmation hearing was held June 1-6 regarding the proper funding amount for response activities at the Ohio properties. On June 13, 2006, Judge Aug agreed with the United States and ruled that the proper standard for required response activities to be funded by the trust were those Arequired by law.” Judge Aug also directed that the Custodial Trust be funded with $45,000 for one property and $1,080,000 for the other property. The total amount to be funded by EaglePicher via settlement and Court order is $17,711,000. Contact: Catherine Garypie, Associate Regional Counsel 312/886-5825; Tom Martin, Associate Regional Counsel 312/886-4273; Jon Gulch, On-Scene Coordinator 734/692-7686; John Fagiolo, Remedial Project Manager 312/886-0800 Chemical Manufacturer and Two Officials Indicted For Illegal Sewer Discharges and Lying to Federal Officers. Crown Chemical, Inc., was a manufacturer of cleaning supplies in Crestwood, Illinois. James Spain was the President and majority shareholder of Crown Chemical, while Catalino Uy was the General Manager of Crown Chemical. On August 2, 2006, a grand jury in Chicago in the Northern District of Illinois issued a five-count felony indictment alleging that Crown Chemical, Mr. Spain and Mr. Uy violated the Clean Water Act and other federal laws when they (1) conspired to and did illegally discharge acidic and caustic wastewaters to the Chicago-area sanitary sewer; and (2) lied to law enforcement officers executing a search warrant at Crown Chemical. The indictment also alleged that an unnamed individual lied to federal officers during the search warrant, at Spain’s direction. The indictment alleged that from at least 1985 to at least November 1, 2001, process wastewater at the Crown Chemical facility was discharged to the Chicago-area sanitary sewer in violation of pH limits in both the federal pretreatment regulations and the local pretreatment ordinance. To make these violating discharges, Crown Chemical and Spain made false statements to local authorities about Crown Chemical’s operations and discharges. On November 1, 2001, law enforcement agencies including U.S. EPA's Criminal Investigation Division executed a search warrant at the Crown Chemical facility. During this warrant, both Mr. Spain and Mr. Uy falsely told law enforcement officers that all Crown Chemical waste was treated to comply with pH limits before discharge. During this warrant, Mr. Spain also told an unnamed individual to (1) make the same false statement to officers; and (2) tell additional unnamed individuals to also make false statements to officers. As a result, two other individuals besides Mr. Spain and Mr. Uy also made false statements to officers during the search warrant about wastewater pretreatment. If convicted, the defendants face imprisonment for up to five years and a criminal fine of the higher of up to $50,000 per day of violation, or $250,000 for Mr. Spain and Mr. Uy and $500,000 for Crown Chemical. A defendant is presumed innocent until proven guilty. U.S. EPA's Criminal Investigation Division investigated this matter. Region 5 Issues Notice of Noncompliance to DaimlerChrysler Corp., Resolving Voluntarily Disclosed Violations at its Warren, Michigan, Truck Assembly Facility. On June 22, 2006, the Region issued a Notice of Noncompliance and Final Order resolving violations of section 312 of EPCRA which DaimlerChrysler disclosed to Region 5 on September 9, 2005. The self-disclosure pertained to DaimlerChrysler’s Warren, Michigan, truck assembly plant’s failure to file Tier II forms with the local State Emergency Response Commssion (SERC), the Local Emergency Planning Committee (LEPC) and the fire department for calendar years 2003 and 2004 reflecting storage of several powdered resins from paint process overspray. After determining that DaimlerChrysler complied with all nine criteria of EPA's Audit Policy and that DaimlerChrysler accrued no discernable economic benefit, the Region determined to forego a gravity-based penalty of approximately $49,857.
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