Enforcement Action Summary FY 2006 - September

September  4, 2006

Region 5 enters Final Order Resolving Complaint Against Illinois Power Company d/b/a AmerenIP.

On August 31, 2006, the Regional Judicial Officer entered a Final Order resolving this matter. EPA Region 5 filed a complaint against Illinois Power on June 23, 2006 for violation of the Polychlorinated Biphenyls (PCB) Disposal Rule at 40 C.F.R. Part 761. The complaint alleged a violation caused by a PCB spill from Illinois Power’s PCB-contaminated transformer located in Utica, Illinois and sought a $5500 penalty. Illinois Power elected to “quick resolve” the matter by sending in the check for the full penalty. (Contact: Gaylene Vasaturo 312-886-1811)

Consent Decree Entered Concluding CWA section 404 Litigation in US v. Bay-Houston Towing Co. and Requiring Wetland Restoration  

On August 11, 2006, Judge Cohn of the federal district court for the Eastern District of Michigan entered a Consent Decree in the matter US v. Bay-Houston Towing Co., thereby resolving litigation begun in 1998. The litigation concerned peat mining operations that had been occurring at the Minden Bog in Sanilac County, Michigan, since before CWA enactment. Because the peat mining resulted in dredged material discharges to the bog, as well as surface water discharges to an adjacent drain, the United States argued that Bay-Houston had to obtain both section 404 and 402 permits. Between 1991 and 1995 the Michigan DEQ worked to bring Bay-Houston under acceptable permits ( Michigan is authorized by EPA to implement both the section 404 and section 402 permit programs). When a section 404 permit acceptable to EPA, MDEQ, and Bay-Houston could not be developed, authority to issue the permit transferred to the Corps. After Bay-Houston first brought a declaratory judgment action seeking to preclude EPA enforcement (arguing that EPA had taken a final agency action during the MDEQ’s permit process and had agreed that the mined area was “grandfathered” under the CWA), the US filed its enforcement action. A trial was held during 2001, and the court issued rulings finding CWA liability but refusing to assess any civil penalties. The United States prevailed both in the declaratory judgment action (appealed to the Sixth Circuit) and in a later-filed takings action (dismissed by the Court of Federal Claims in late 2003).

The settlement addresses not only the remainder of EPA’s enforcement action (i.e., a plea for injunctive relief based on past CWA violations), but broadly addresses the future of the entire 2819-acre parcel. Critical to the settlement was Bay-Houston’s obtaining a section 404 permit from the Corps’ Detroit District Office; this permit contains most of the substantive settlement terms although EPA and DOJ were instrumental in crafting and negotiating those terms. The Corps permit, along with the Consent Decree, authorizes Bay-Houston to continue to mine peat in carefully delineated areas subject to depth limits that were set in order to allow for future restoration of peatland vegetation at the bog. Other conditions designed to ultimately allow for successful restoration are contained in the Corps permit. A capped, interest-bearing fund of $1.32 million is to be spent by Bay-Houston on this peatland restoration to occur on 1530 acres. Bay-Houston is to immediately donate, to the Michigan DNR, 1182 acres of high-quality ombrotrophic peat bog (42% of the property); the balance of the property – the 1530 acres plus 110 other acres – will be donated by Bay-Houston to the MDNR in the future. All of the property will be subject to a conservation easement developed as part of the settlement. Perhaps the most notable aspect of this settlement is that it calls for the most extensive peatland restoration ever to be undertaken in the United States, as the concept of restoring peatland is relatively new in this country and rarely mandated by the Corps.

Contact: Jacqueline Miller, ORC, 312-886-7167; David Schulenberg, Water Division, 312-886-6680; Marged Harris, OECA, 202-564-6025

September 11, 2006

7 th Circuit Court of Appeals Denies Pacific Legal Foundation’s Motion to File A Brief Amicus Curiae In Support of Petition for Rehearing in U.S. v. Heinrich CWA Section 404 Case

On August 18, 2006, the Pacific Legal Foundation filed a Motion to File a Brief Amicus Curiae In Support of Petition for Rehearing and Suggestion for Rehearing En Banc in U.S. v. Heinrich case, a CWA wetlands case. It also simultaneously filed a Brief Amicus Curiae of Pacific Legal Foundation In Support of Petition for Rehearing and Suggestion for Rehearing En Banc. The motion and accompanying brief argued that the case should be remanded to the district court consistent with the Rapanos decision because the trial and appellate court relied on an apparently flawed legal standard. On August 29, 2006, the court of appeals denied the motion. The current deadline for Heinrich’s petition for rehearing is September 21, 2006.

Regional ORC Contact: Ignacio Arrázola, 312-886-7152

Decatur (IL) Man Pleads Guilty to Illegal Dumping into the Sangamon River

On September 7, 2006, Ronald Mark Davenport of Decatur, Illinois pleaded guilty in federal court to charges that he dumped a pollutant into the Sangamon River. According to the charges filed, Davenport, an employee and partner of Able One Sealcoating, stopped at the Decatur Bulk Watering Station on September 19, 2004, to purchase water to clean tar and chemicals from his tank truck. The company uses a 1,000 gallon tank mounted on a pickup truck, known as “Big Sue,” to haul waterproof coatings to work sites. Davenport pumped more than 250 gallons of water into the tank, then opened the tank drain and discharged at least 50 gallons of wastewater containing toxic pollutants into the water station’s drain. The drain connected to the Sangamon River, about 100 yards away. At sentencing, Davenport could be imprisoned for up to three years and fined; the actual sentence is to be determined by the court at the time of sentencing, which was set for December 22, 2006.

Regional ORC Contact: David M. Taliaferro, 312-886-0815

Cognis Corporation Charged For Making Illegal Discharges To Mill Creek Causing The Death Of Migratory Birds; United States v. Cognis Corporation

On September 12, 2006, Cognis Corporation (“Cognis”) was charged in a five-count Information for illegally discharging isodecyl alcohol, adipic acid, and tallow (a type of animal fat) into Mill Creek and causing the death of 12 migratory birds. Cognis, an Ohio corporation, operates a specialty chemicals manufacturing facility in Cincinnati, Ohio. Storm water runoff from the facility is discharged into Mill Creek, which borders the facility. However, Cognis does not have a permit to discharge pollutants into Mill Creek.

In the first four counts of the Information, Cognis is charged with negligently discharging pollutants into Mill Creek in violation of the Clean Water Act. In the last count of the Information, Cognis is charged with unlawfully taking 11 Canada geese and one Mallard duck in violation of the Migratory Bird Treaty Act. In the Statement of Facts filed with the Information it is alleged that for a two day period beginning December 13, 2005, there four discharges from the Cognis facility into Mill Creek. Mill Creek is a tributary of the Ohio River. On December 13, 2005, as the result of an explosion, a mixture of isodecyl alcohol and adipic acid flowed into storm drains at the facility and then into Mill Creek. Later that day, cleanup of this spill resulted in an additional discharge of isodecyl alcohol and adipic acid into Mill Creek. Also on December 13 and 14, 2005, tallow was discharged into Mill Creek through storm drains on the facility as the result of a ruptured pipeline and an insufficient containment dike, respectively. Approximately 7,700 fish were killed as a result of the four discharges, as well as 11 Canada geese and one Mallard duck.

This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio Environmental Protection Agency, the Ohio Department of Natural Resources – Division of Wildlife, the Cincinnati Fire Department, the Cincinnati Metropolitan Sewer District, the U.S. Fish and Wildlife Service, 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.

Regional ORC Contact:  Brad Beeson, 440-250-1761.

Region 5 files a Consent Agreement and Final Order to commence and conclude case against Niebrugge Oil Company, Inc., Effingham, Illinois (related to alleged violations at 13 facilities with Underground Storage Tanks in southern Illinois).

On September 1, 2006, Region 5 filed a Consent Agreement and Final Order (CAFO) commencing and resolving simultaneously an administrative penalty action against Niebrugge Oil Company, Inc. for 18 violations of Section 9003 of the Solid Waste Disposal Act at gas stations it operated in southern Illinois. Specifically, Niebrugge Oil Company allegedly 1) failed to inspect the lining of three (3) tanks within 5 years of the previous inspection at one facility, 2) failed to prevent overfilling of one (1) tank by installing the overfill device too high at one facility, 3) failed to change the method of release detection from inventory control to another method 10 years after the tanks were installed at one facility, 4) failed to monitor the tanks at least every 30 days for a release at two facilities, and 5) failed to monitor the piping for a release and failed to test the automatic line leak detectors at twelve facilities. The CAFO requires Niebrugge Oil Company to pay a penalty of $210,000. Region 5 calculated a proposed penalty in this matter of $326,344. As part of a streamlined enforcement action, Region 5 offered Niebrugge Oil Company a 25% reduction for cooperation and quick settlement and a 25% reduction for the company no longer being engaged in the management of underground storage tanks.

Regional ORC Contact: Stephen Thorn, 312-353-9715

Region 5 signs Complaint/Consent Agreement and Final Order Settling Wetlands Violations

Region 5 initiated this enforcement action on February 24, 2005. On August 23, 2006, Region 5 signed a Complaint/Consent Agreement and Final Order (“CAFO”) simultaneously instituting and settling an action against Ace Ethanol, LLC (“Ace”) of Stanley, WI and John S. Olynick, Inc. (“Olynick”) of Gilman, WI for alleged violations of Section 301 of the Clean Water Act (“CWA”), 33 U.S.C. § 1311. Region 5 alleged that Ace and Olynick discharged dredge and fill materials into waters of the United States without the necessary permit issued pursuant to Section 404 of the CWA, 33 U.S.C. § 1344. The U.S. Army Corps of Engineers issued a letter of permission allowing the fill to remain but also requiring mitigation. The mitigation effort is ongoing. Ace and Olynick together will pay a $61,000 penalty.

Regional Primary ORC Contact: Mark Koller, 312-353-2591;Secondary Contact: David Schulenberg, 312-886-6680

September 18, 2006

Terre Haute , Indiana Business and its President Charged with Environmental Crimes

On September 12, 2006, Wabash Environmental Technologies (WET) and Derrik Hagerman were criminally indicted for 36 felony violations of the Clean Water Act (CWA) in the Southern District of Indiana. WET was a waste water treatment facility in Terre Haute, Indiana that discharged to the Wabash River under a CWA permit. Derrik Hagerman was WET’s President. The indictment alleges that from January 2004 through November 2004, Hagerman and WET reviewed internal laboratory bench sheets showing that WET was repeatedly violating its effluent discharge limits, but that WET and Hagerman failed to report most of these violations by knowing making false statements on 36 Monthly Monitoring Reports (MMRs) and Discharge Monitoring Reports (DMRs) sent to Indiana Department of Environmental Management (IDEM) for pollutants Ammonia, BOD5, TSS, Copper, Zinc and Phenol. Hagerman surrendered and was arraigned on September 13, 2006, pleading not guilty as to himself and WET. Trial has been set for November 13, 2006. This case is being investigated by Environmental Protection Agency (EPA) Criminal Investigation Division (CID) Special Agent Eric Hann, with substantial assistance from the Indiana Inter-Agency Environmental Crime Task force, including the Indiana Department of Environmental Management, Indiana Department of Natural Resources, Defense Criminal Investigation Service, and the Federal Bureau of Investigation. The indictment is an allegation only, and the defendants are presumed innocent of these charges until proven guilty at trial.

Regional Primary ORC Contact: David Mucha 312-886-9032

Region 5 files Consent Agreement and Final Order with MW Galvanizing, Inc.

On September 19, 2006, Region 5 and MW Galvanizing, Inc. (Respondent) entered into a pre-complaint Consent Agreement and Final Order (CAFO) resolving U.S. EPA’s claims alleging that the Respondent violated the Resource Conservation and Recovery Act (RCRA) 42 U.S.C. §6921 et seq. The CAFO alleges that the Respondent failed to (1) provide training and maintain records under 35 Ill. Adm. Code 724.116(a), (b) and (c) [40 CFR § 264.16(a), (b), and (c)]; (2) obtain and keep on file at its Facility a written assessment attesting to its tank system’s integrity under 35 Ill. Adm. Code 724.291 [40 CFR § 264.191]; (3) prepare and maintain a contingency plan under 35 Ill. Adm. Code 724.151 – 724.153 [40 CFR § 264.51-264.53]; and, (4) submit to U.S.EPA exception reports under 35 Ill. Adm. Code 722.142(a)(2) [40 CFR § 262.42(a)(2)].

The U.S. EPA calculated a preliminary civil penalty of $155,000 and notified the Respondent of this amount in a pre-filing notice and opportunity to confer letter. In consideration of facts disclosed after the pre-filing letter and the statutory penalty criteria of Section 3008 of RCRA, 42 U.S.C. §6928, U.S. EPA determined, and Respondent agreed, to settle this action for $32,130 and the performance of a Supplemental Environmental Project ( SEP). The SEP consists of the purchase and installation of an automatic recycling system for the material in Respondent’s containment pit sump as well a liner for the sump.

Regional Primary ORC Contact: Tamara Carnovsky 312-886-2250; Secondary Contact: Graciela Scambiatterra 312-353-5103

U.S. EPA Region 5 Signs a Consent Agreement and Final Order with Flavorchem Corporation in Downers Grove, Chicago, Illinois.

On September 14, 2006, U.S. EPA, Region 5, and Flavorchem Corporation (Flavorchem) entered into a Consent Agreement and Final Order simultaneously commencing and concluding an action for violations of the Resource Conservation and Recovery Act (RCRA) at Flavorchem’s manufacturing plant in Downers Grove, Illinois. Flavorchem produces flavoring extracts, syrups and food colorings at its plant. Flavorchem is a small quantity generator of hazardous waste that exceeded the small quantity generator threshold during a total of five months in calendar years 2003 and 2004. The small quantity generator thresholds were exceeded when Flavorchem discarded expired food products that exhibited the characteristic of ignitability. The alleged violations include: 1) failure to have a contingency plan; 2) failure to ensure that facility personnel successfully completed a program of classroom instruction or on-the-job training that teaches them to perform their duties in a way that assures compliance with RCRA; 3) failure to submit annual reports for calendar years 2003 and 2004; 4) failure to maintain aisle space to allow the unobstructed movement of personnel, fire protection equipment and spill control equipment; and 5) failure to mark the date upon which accumulation of hazardous waste began on six hazardous waste accumulation containers. U.S. EPA calculated a preliminary civil penalty of $138,036 for these violations and notified Flavorchem of this amount in a pre-filing and opportunity to confer letter. In consideration of the facts and circumstances of this case and the statutory penalty criteria, U.S. EPA determined and Flavorchem agreed that the appropriate civil penalty to settle this action is $67,433.

Regional Primary ORC Contact: Christine Liszewski 312-886-4670; Secondary Contact: Diane Sharrow 312-886-6199

U.S. EPA Region 5 and ISG Indiana Harbor, Inc. Enter into a Consent Order to Prevent Oil Discharges from ISG’s Facility in East, Chicago, Indiana.

On September 19, 2006, U.S. EPA, Region 5, and ISG Indiana Harbor, Inc. (ISG) entered into a Administrative Order by Consent under Section 311 of the Clean Water Act, 33 U.S.C. § 311. The order requires ISG to operate an oil recovery system to prevent discharges of oil from ISG’s integrated primary steel manufacturing plant in East Chicago, Indiana to the No. 2 Intake Channel; complete construction of a sheet pile cut-off wall and flow aperture across the width of the No. 2 Intake Channel; and develop and implement a monitoring program to assess the effectiveness of the sheet pile wall. The No. 2 Intake Channel is directly connected to Indiana Harbor and Lake Michigan. Oil sheens have been observed in the No. 2 Intake Channel during the summer months for a number of years. An EPA employee inspected the No. 2 Intake Channel on June 27, 2006 and observed an oil sheen. The source of the oil is believed to be an extensive, historic underground pool of oil at the facility. Sometime before 1980, an underground fuel oil distribution pipe had corroded extensively and resulted in an underground oil pool of between 5 and 10 million gallons encompassing an area approximately 39 acres in size and migrating toward the No. 2 Intake Channel.

Regional Primary ORC Contact: Christine Liszewski 312-886-4670; Secondary Contact: Wally Nied 312-886-4466

Michigan applies to intervene in litigation challenging Michigan multiple discharger mercury variance.

On September 12, 2006, the Michigan Attorney General’s Office, on behalf of the Michigan Department of Environmental Quality (MDEQ), filed an application to intervene in the case brought by the National Wildlife Federation (NWF) and the Lone Tree Council (the plaintiffs) regarding Michigan’s multiple discharger mercury variance. The plaintiffs filed a complaint on May 30, 2006, in the District Court for the Eastern District of Michigan, challenging EPA’s August 4, 2000, approval of Michigan’s variance implementation procedures and June 29, 2004, approval of Michigan’s multiple discharger mercury variance. The Complaint alleged that the approved variance procedures violate the Clean Water Act (CWA) and 40 CFR Part 132 Appendix F procedures 2, 5 and 9, of the Great Lakes System Water Quality Guidance. The United States Government filed an Answer and a Motion to Dismiss the third and fourth claims for relief on July 30, 2006. On August 28, 2006, the Court entered the parties’ stipulation to dismiss those claims, which alleged that EPA violated the CWA in approving revisions of Michigan’s National Pollutant Discharge Elimination System (NPDES) program. A new judge was assigned to that litigation on September 13, 2006. The Plaintiffs also sent EPA a notice of intent to sue dated August 21, 2006, arguing that EPA had not reviewed or passed judgment on the revision to Michigan’s NPDES program and has a nondiscretionary duty to review it. They had previously submitted notices of intent to sue EPA, dated May 5, 2006 and May 18, 2006, alleging failure to act on Wisconsin’s regulation regarding effluent limitations for mercury dischargers. EPA is working on a letter requesting Wisconsin to submit that regulation for review. The 2004 Michigan variance is not a regulation, but a permitting strategy.

Regional Primary ORC Contact: Maria Gonzalez 312 886-6630; ORC Secondary Contact: Gary Prichard 312 886-0570

September 25, 2006

Region 5 Obtains Dismissal of Fifth Amendment Takings Claims Brought by Owners of Superfund Site

On August 10, 2006, the U.S. of America and D&L Sales, Inc., Lawrence Zeppiero and Jeff Ducy, filed an executed stipulation of voluntary dismissal in the U.S. Court of Federal Claims, agreeing to dismiss without prejudice takings claims arising from EPA’s demolition of radium-contaminated warehouse buildings and dismiss with prejudice other takings claims, including claims alleging destruction of personal property, at the Aircraft Components Superfund site, Benton Charter Township, Berrien County, Michigan ( D&L Sales, Inc., Lawrence Zeppiero and Jeff Ducy v. The United States of America, No. 02-1521 L (Ct. Fed. Cl., filed Nov. 6, 2002)). Beginning in the 1990’s, EPA conducted removal and remedial actions at the site to clean-up radium and chemical contamination in site buildings, soils and groundwater. EPA’s investigation indicated that the radium contamination at the site resulted from an inventory of thousands of surplus military aircraft components bearing radio-luminescent paint that a previous site owner had purchased from U.S. Department of Defense (DOD) surplus disposal agencies. EPA attempted to clean-up the on-site warehouse buildings containing the inventory, but found that the buildings, which were in poor condition, could not be effectively decontaminated without destroying them. EPA proposed the bifurcated voluntary dismissal to further ongoing CERCLA cost recovery settlement negotiations among EPA, D&L Sales, Inc. and its new owner, a local development consortium, and DOD agencies.

Regional ORC Primary Contact: Diana Embil 312-886-7889; Secondary Contact: Mary Tierney 312-886-4785

United States District Court for the Northern District of Illinois Enters Consent Decree Resolving Violations of the Clean Air Act by A. Finkl in Chicago, Illinois

On September 21, 2006, the United States District Court for the Northern District of Illinois entered a consent decree resolving Clean Air Act violations by A. Finkl and Sons Co. at its steel forging plant in Chicago, Illinois, Civil Action No. 06 C 4297.  On August 9, 2006, the United States filed a complaint against A. Finkl & Sons Co. and, on August 11, 2006, the United States lodged a consent decree resolving the alleged violations. A. Finkl manufactures steel ingots and various types of steel forgings in two electric arc furnaces (EAFs) at its facility located at 2011 Southport Avenue in Chicago, Illinois. A. Finkl replaced the transformer used to power one EAF in 1989 and the transformer used to power the second EAF in 1997. Both of the replacement transformers were more powerful than the original transformers. In its complaint, the United States contends that the replacement of the transformers increased the maximum hourly emission rate of particulate matter from the EAFs. The complaint also alleges that A. Finkl made modifications to the EAFs without complying the New Source Performance Standards (NSPS) “Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels Constructed after August 17, 1983” at Subpart AAa of 40 C.F.R. Part 60, operated the EAFs without having a valid Title V operating permit and failed to obtain operating permits for the modifications in violation Illinois State Implementation Plan.

The consent decree requires A. Finkl to pay a civil penalty of $75,000, to fulfill certain compliance requirements, and to perform two Supplemental Environmental Projects (SEPs). The compliance requirements in the consent decree obligate A. Finkl to comply with all applicable requirements of the NSPS for electric arc furnaces at Subpart AAa of 40 C.F.R. Part 60, including emission standards, monitoring requirements, operational and equipment standards, maintenance requirements, and recordkeeping and reporting requirements. The consent decree also requires A. Finkl to conduct performance tests to demonstrate compliance with the emission limitations in the NSPS. In addition, A. Finkl will submit an application for an amendment to its Title V permit which includes compliance with the emission limitations and other requirements of the NSPS. The consent decree also requires A. Finkl to perform the following two SEPs: 1) A. Finkl will install low NO x (nitrogen oxide) burners on one of its gas fired furnaces which is expected to reduce NO x emissions by approximately seven tons per year at a cost of at least $545,000; and 2) A. Finkl will enter into a contract for $75,000 to retrofit 34 vehicles owned by the City of Chicago with diesel oxidation catalysts.

Regional ORC Primary Contact: Christine Liszewski, 312-886-4670; Secondary Contact: Brian Dickens, 312-886-6073

Region 5 enters an administrative Consent Agreement and Final Order (CAFO) resolving alleged violations of the Clean Air Act NESHAPs for Pharmaceuticals Production and Stratospheric Ozone Standards at an Archer Daniels Midland plant in Decatur, Illinois

On March 3, 2005, U.S. EPA issued a Finding of Violation (FOV) alleging that Archer Daniels Midland (ADM) Company had violated the National Emission Standards for Hazardous Air Pollutants (NESHAPs) for Pharmaceuticals Production at 40 C.F.R. Part 63, Subpart GGG (the Pharma-MACT) regarding a vitamin E manufacturing operation at its grain processing plant in Decatur. The FOV alleged that ADM failed to: 1) correctly identify the vitamin E manufacturing operation as being subject to the Pharma-MACT; 2) identify storage tanks associated with the vitamin E operation; 3) choose a process vent compliance standard for hazardous air pollutant (HAP) emissions regarding the vitamin E operation; 4) identify all components requiring Leak Detection and Repair (LDAR) monitoring; 5) develop and implement a written startup, shutdown, and malfunction plan (SSMP); 6) make wastewater determinations and develop and implement a Maintenance Wastewater Plan (MWP); 7) conduct performance testing on the vitamin E mineral-oil scrubber and conduct initial compliance demonstrations on process condensers and on condensers acting as air pollution control devices; 8) monitor required parameters for the control devices used in the vitamin E operation; and 9) choose and identify compliance options, maintain required records, and submit required compliance notices and reports regarding the vitamin E operation.

On June 10, 2005, U.S. EPA issued a second FOV alleging that ADM violated the Stratospheric Ozone Standards at 40 C.F.R. Part 82, Subpart F, regarding CFC chillers in the vitamin E manufacturing operation at the Decatur plant, and certain permit requirements regarding air pollution control equipment inspection and record keeping. The second FOV alleged that ADM failed to: 1) calculate and track leak rates for nine process chillers and ensure that both the initial and follow-up repair verification tests were performed; and 2) comply with the reporting and record keeping requirements regarding refrigerant leak rates, leak location and repair, and system retrofit for the nine process chillers. The FOV also alleged that ADM failed to conduct visual inspections on a weekly basis of a baghouse in the vitamin E manufacturing operation and failed to keep required records of those inspections.

On September 25, 2006, Region 5 issued a CAFO resolving all alleged Pharma-MACT, Stratospheric Ozone Standard and permit violations regarding the vitamin E manufacturing operation at ADM’s Decatur plant. Under the terms of the CAFO, in consideration of ADM’s cooperation and disclosure of certain violations, the facts and circumstances of the case, and ADM’s agreement to perform two Supplemental Environmental Projects (SEPs), Region 5 reduced the civil penalty from $1.1 million to $325,000. For the first SEP, ADM agreed to spend at least $1,005,000 to replace 58 pumps and 15 agitators in methane service at the vitamin E facility with seal-less pumps and agitators to reduce fugitive emissions of methane, a HAP. For the second SEP, ADM agreed to spend at least $15,000 to implement at the vitamin E facility an Enhanced LDAR Program consisting of frequent LDAR monitoring of connectors, valves, pumps, and agitators; a stricter leak repair threshold; an engineering analysis to determine root causes for leaks; and a corrective action program to reduce and eliminate leaks.

Regional Primary ORC Contact: Reginald A. Pallesen, 312-886-0555; Secondary Contact: Constantinos Loukaris, 312-353-6198

Region 5 Concurs in Issuance of the Second Five Year Review Report for the East Bethel Sanitary Landfill Superfund Site, Anoka County, East Bethel Township, Minnesota

On September 6, 2006, Region 5 concurred in issuance of a Five-Year Review Report (Report) for the East Bethel Sanitary Landfill Superfund Site located in Anoka County Minnesota. In accordance with Section 121 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9621, the Report finds that the remedy is protective in the short-term of human health and the environment. All immediate threats at the Site have been addressed through deed restrictions, site fencing and sign postings. The exposure pathways that could result in unacceptable risks are being controlled. Physical controls are currently protecting against exposure to, and ingestion of, contaminated groundwater. Long-term protectiveness at the Site will be achieved through the following actions: 1) optimizing the groundwater extraction system, 2) continued long-term monitoring (and enhancement of the monitoring system), 3) addition of an active gas extraction system, 4) installation of a new cap on the landfill, and 5) submission of an Institutional Controls Plan.

The Site is approximately 34 acres in size and contains approximately 1,241,900 yards of waste. Abundant wetlands are in the general vicinity of the landfill. The Record of Decision (ROD), signed in 1992, required remedial action in two phases. Operable Unit 1 (OU1) addressed groundwater contamination at the Site and Operable Unit 2 (OU2) addressed the contamination in the landfill itself. The work conducted under OU2 was addressed through the Minnesota Closed Landfill Program (MCLP). Construction of the remedy was completed on June 30, 2000.

The first Five-Year Review assessment found that the remedy was constructed in accordance with the ROD and the MCLP. This second Five-Year Review confirms that the remedies are functioning as intended and are protective of human health and the environment in the short-term. Long-term protectiveness will be achieved once the follow-up actions established in the Report are completed.

Regional Primary ORC Contact: Richard Murawski, 312-886-6721; Secondary Contact: Giang-Van Nguyen, 312-886-6726

Region Approves Michigan-Lead Five-Year Review Report for the Waste Management Holland Lagoons Superfund Site (Ottawa County, MI)

On September 26, 2006, EPA Region 5 approved the Five-Year Review Report drafted by the Michigan Department of Environmental Quality (MDEQ) for the Waste Management Holland Lagoons state-lead Superfund site (site) in Ottawa County, Michigan. The Five-Year Review was triggered by the signing of the preliminary closeout report on September 26, 2001. The Five-Year Review determined that a direct soil contact threat no longer exists at the site, based on current information and due to the removal actions conducted in the six identified source areas on the site. A chain link fence encompasses the entire site and is monitored to provide for site security and protection for the on-site monitoring wells. As part of this Five-Year Review, EPA Region 5 requested that Waste Management, Inc. (WMI), conduct a study of Institutional controls (IC) at the site. EPA Region 5 expects the study to be finalized by April 2007.

The Five-Year Review identified four outstanding issues at the site: 1) WMI has not complied with an administrative order on consent (AOC), which requires WMI to submit to MDEQ an approvable Remedial Action Plan (RAP) that meets the requirements of Part 201 of the Natural Resources and Environmental Protection Act, as amended (Part 201); 2) WMI must provide information to prove the six on-site source areas, due to the completion of past remediation activities, are no longer contributing contaminants to the groundwater plume migrating under the site and that all of the contaminants found in the groundwater plume originate from the adjacent and upgradient Southwest Ottawa County Landfill (SWOCLF) site; 3) it may be necessary for WMI to implement and maintain ICs as part of the final RAP; and 4) a contamination source area may exist beneath an former office building on the site. To address the outstanding issues, the Five-Year Review recommends that: 1) WMI submit to MDEQ a revised RAP that meets the requirements of Part 201 and the AOC; 2) the RAP provides groundwater information to prove the six on-site source areas are no longer contributing contamination into the groundwater and that all the contamination detected in the groundwater plume is migrating from the SWOCLF site; 3) if required by the RAP, WMI develop ICs and an IC plan; and 4) WMI evaluate the soil under the former office building and other areas as may be required under the RAP.

MDEQ cannot make a protectiveness statement of the remedy at the site until the RAP is completed and WMI provides further information about groundwater beneath the site. Long-term protectiveness is also dependent upon effective ICs, if they are required by the final RAP.

Regional Primary ORC contact: Ann Coyle, 312-886-2248; Secondary contact: Denise Boone, 312-886-6217

Region 5 Obtains Dismissal of Fifth Amendment Takings Claims Brought by Owners of Superfund Site

On August 10, 2006, the U.S. of America and D&L Sales, Inc., Lawrence Zeppiero and Jeff Ducy, filed an executed stipulation of voluntary dismissal in the U.S. Court of Federal Claims, agreeing to dismiss without prejudice takings claims arising from EPA’s demolition of radium-contaminated warehouse buildings and dismiss with prejudice other takings claims, including claims alleging destruction of personal property, at the Aircraft Components Superfund site, Benton Charter Township, Berrien County, Michigan ( D&L Sales, Inc., Lawrence Zeppiero and Jeff Ducy v. The United States of America, No. 02-1521 L (Ct. Fed. Cl., filed Nov. 6, 2002)). Beginning in the 1990’s, EPA conducted removal and remedial actions at the site to clean-up radium and chemical contamination in site buildings, soils and groundwater. EPA’s investigation indicated that the radium contamination at the site resulted from an inventory of thousands of surplus military aircraft components bearing radio-luminescent paint that a previous site owner had purchased from U.S. Department of Defense (DOD) surplus disposal agencies. EPA attempted to clean-up the on-site warehouse buildings containing the inventory, but found that the buildings, which were in poor condition, could not be effectively decontaminated without destroying them. EPA proposed the bifurcated voluntary dismissal to further ongoing CERCLA cost recovery settlement negotiations among EPA, D&L Sales, Inc. and its new owner, a local development consortium, and DOD agencies.

Regional Primary ORC Contact: Diana Embil, 312 886-7889; Secondary Contact: Mary Tierney, 312 886-4785

On September 25, 2006, USDOJ/EDS filed a Notice of Supplemental Authority in U.S. v .Fabian, No. 2:02CV495RL (Notifying the Court of the recent applicant Appellate Decision in U.S. v. Gerke Excavating, Inc. No. 04-3941, slip op. (7 th Cir. Sept. 22, 2006))

During August 2006, both sides briefed the federal district court (N.D. IN) in the Fabian case, based on the U.S. Supreme Court decision in Rapanos/Carabell v. United States, 126 S.Ct. 2208, 2236-52 (2006). The United States moved to further notify the court of a directly applicable September 22, 2006 federal appellate court decision, U.S. v. Gerke Excavating, Inc., Civ. No. 04-3941, holding that Justice Kennedy’s concurring opinion provides the applicable standard for establishing Clean Water Act (CWA) jurisdiction in that case because his view was seen to Acommand the support of five Justices (himself plus the four dissenters), Gerke, slip op. at 2-4. Thus, the Seventh Circuit invoked the doctrine of Marks v. United States, 430 U.S. 188, 193 (1977), in reaching its decision in Gerke. The United States took the opportunity to so inform the Fabian court, and once more assert that the United States has established the necessary element of waters of the United States being present in the present case.

In March 1998, the owner and professional land surveyor/engineer (Mr. R. Fabian) of an approximately 30 acre parcel of land primarily in Lake County, Indiana, performed an unpermitted filling of approximately 10 acres of wetland property that is adjacent to (and hydrologically connected to) the Little Calumet River, a federal navigable waterway. Mr. Fabian did not request or secure a permit from the U.S. Army Corps of Engineers. Mr. Fabian had previously (in February 1998) been made aware of the wetlands status of the property in question and need for a permit for any filling activities. Mr. Fabian also chose to ignore two (June 1998 and July 1999) U.S. EPA administrative compliance orders concerning the property. In September 1999, U.S. EPA referred the case to the United State Department of Justice (DOJ/EDS). In December 2002, DOJ/EDS filed a complaint against Mr. Fabian. After preliminary procedural matters and attempted negotiations, the district court set an August 2005 briefing schedule due date for both parties’ Motions for Summary Judgment. After a court-ordered stay during the Supreme Court’s review and decision on Rapanos/Carabell, the parties were directed to file briefs, reply and responsive pleadings, and supplemental briefs in support of Motions for Summary Judgment. The parties also attempted mediation during 2005-2006.

Regional Primary ORC Contacts: Thomas Turner, 312-886-6613: Secondary Contact: Greg Carlson, Water Division 312-886-0124

Bad River Band of Lake Superior Tribe of Chippewa Indians CWA 303/401 Public Informational Meeting

On September 21, 2006, EPA representatives from Region 5, including staff from ORC, Water Division, the Indian Environmental Office, and Office of Public Affairs, held an informational meeting on the Bad River Band of Lake Superior Tribe of Chippewa Indians’ (BRB) application for treatment in a similar manner as a state (TAS) under sections 303, 401 and 518 of the Clean Water Act (CWA) for purposes of administering water quality standards. The meeting followed the recent notice to appropriate governmental entities and publication of the availability of the application for comment on jurisdictional aspects. The comment period will remain open until October 28, 2006.

On March 1, 2006, BRB submitted an application for TAS under Sections 303, 401 and 518 of the CWA for purposes of administering water quality standards. Approval of the application would allow BRB to adopt, review, and revise water quality standards pursuant to Section 303(c) of the CWA and to certify that discharges comply with those water quality standards pursuant to Section 401 of the CWA for all surface waters within BRB’s Reservation.

The Bad River reservation is located in northwestern Wisconsin and is one of the largest in the state. It includes portions of Lake Superior's shoreline as well as many rivers and streams, as well as large areas of wetlands, most significantly the Kakagon/Bad River Sloughs, which is an area where much of the tribe's wild rice grows. The reservation was established by Treaty of 1854. The reservation encompasses roughly 125,000 acres, with about 27,000 acres (about 21%) held in fee by non-members. The remaining lands are roughly divided into 58,000 acres held in trust for the Band; about 17,500 acres owned in fee by the Band or by Band members; and about 3,000 acres owned by municipalities or agencies. While public informational meetings are not a requirement of the TAS process, in this case both the Tribe and the Region agreed that such a meeting might be beneficial.

The Region also is currently reviewing the Lac du Flambeau Band’s application for CWA authority for 303/401, which has already been noticed for comment by appropriate governmental entities. Three other tribes in Region 5 previously have been approved for CWA authority for 303/401. These include the Sokaogon Chippewa Community, also of Wisconsin, and the Grand Portage and Fond du Lac Bands of Minnesota, all of whose applications were approved prior to 1996.

Regional Primary ORC Contacts: Barbara Wester, 312-353-8514; Rodger Field, ORC, 312-353-8243

Region 5 approves TMDL for East Fork Kaskaskia River, Illinois

On September 14, 2006, Region 5 approved a Total Maximum Daily Load (TMDL) for fecal coliform bacteria for two segments of the East Fork Kaskaskia River in Marion, Clinton and Fayette Counties, Illinois. Water quality impairments due to fecal coliform bacteria affect the primary contact use of the river, which has a general use water designation. Nonpoint sources such as livestock operations, agricultural runoff, failing septic systems, and animal run-off are potential sources contributing to the fecal coliform Water Quality Standard exceedances in the river. In addition, there are four National Pollutant Discharge Elimination System (NPDES) permitted point source dischargers that contribute to the fecal coliform impairments. Solutions will include modifying the permits for the point source dischargers in the watershed, if necessary to ensure that they are consistent with the applicable wasteload allocation in the TMDL. To demonstrate reasonable assurances for nonpoint sources, Illinois Environmental Protection Agency (IEPA) has committed to: convening local experts familiar with nonpoint sources of pollution in the watershed; ensuring that they define priority sources and identify restoration alternatives; developing a voluntary implementation plan that includes accountability; and funding non-point source controls through grant programs.

Regional Primary ORC Contact: Susan Tennenbaum, 312-886-0273; Secondary Contact: Vilma Rivera-Carrero, 312-886-7795

Region 5 approves TMDL for Mauvaise Terre Creek, Illinois

On September 19, 2006, Region 5 approved two Total Maximum Daily Loads (TMDLs), one for fecal coliform for the Mauvaise Terre River and one for manganese, total phosphorus, total suspended solids and nitrogen-nitrate for the Mauvaise Terre Lake, Morgan and Scott Counties, in west-central Illinois. Water quality impairments are being caused by runoff from lands modified by development and land use related practices, which can harm surface water resources by causing hydrologic modification, flow regulation modification, habitat modification, streambank destabilization, and soil erosion, and which causes the mobilization of high levels of contaminants, such as suspended solids, nutrients (phosphorus and nitrate), heavy metals (manganese) and pathogens. Point source discharges, such as waste water treatment plants, storm water runoff sites, combined sewer overflows can also contain a wide variety of pollutants, such as fecal coliform, and runoff from land disposal systems, such as septic systems, contribute to the contamination. Illinois Environmental Protection Agency (IEPA) has committed to imposing waste load allocations through its National Pollutant Discharge Elimination System (NPDES) program on the point source contributors to address the fecal coliform problem. To demonstrate reasonable assurances for nonpoint sources, IEPA has committed to: convening local experts familiar with nonpoint sources of pollution in the watershed; ensuring that they define priority sources and identify restoration alternatives; and developing a voluntary implementation plan that includes accountability.

Regional Primary ORC Contact: Susan Tennenbaum, 312-886-0273; Secondary Contact: Vilma Rivera-Carrero, 312-886-7795