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Enforcement Action Summary FY 2007 - June 2007
Week of June 4, 2007
Court Sets Trial Date in United States v. Apex Oil Company.
On May 24, 2007, the United States District Court for the Southern District of Illinois set aside up to five weeks starting on January 7, 2008, for trial in United States v. Apex Oil Company. In its April 2005 Complaint under Section 7003 of RCRA, the United States alleges that Apex Oil released gasoline that has commingled with other responsible parties releases and resulted in a large plume of refined petroleum substances beneath the Village of Hartford, Illinois. Among other things, vapors from the plume have migrated into homes in Hartford causing fires, explosions, and evacuations and, therefore, present an imminent and substantial endangerment to human health and the environment.
EPA entered into an Administrative Order on Consent with four of the other responsible parties requiring interim measures, an investigation of the plume, and development of a cleanup plan. The United States’ complaint seeks injunctive relief requiring Apex Oil to cooperate and participate with other responsible parties in the cleanup of the plume.
Contact: Brian Barwick, primary contact 312-886-6620.
U.S. EPA issues a RCRA 3008h Administrative Order on Consent for Corrective Action at the Center Point Business Campus in Pontiac, Michigan
On May 24, 2007, U.S. EPA and General Motors Corporation (GMC) entered into an Administrative Order for Corrective Action at the Center Point Business Campus (formerly the Pontiac Truck Group facility) in Pontiac, Michigan. The Order requires GMC to complete Corrective Action by, among other things, operating and maintaining a multi-phase extraction system, imposing institutional controls where necessary, and maintaining financial assurance for the costs of Corrective Action. GMC has removed soils contaminated with benzene, toluene, ethylbenzene, and xylene (BTEX), polynuclear aromatics (PNA’s), lead, solvents, and paint. In addition, GMC is recovering light non-aqueous phase liquid (LNAPL) from groundwater.
GMC’s Pontiac facility encompasses approximately 400 acres of land. From 1927 through 1990, GMC produced medium and heavy duty trucks and buses at the facility. Between 1991and 1995, all buildings were demolished and the area was redeveloped as the Centerpoint Business Campus. Presently, the Centerpoint Business Campus includes a Truck Engineering Center, the Pontiac Assembly Center, the GM Truck Product Center, a wastewater treatment plant and two stormwater retention ponds.
Contacts: Brian Barwick, ORC (312) 886-6620) and Dan Patulski, RCRA Corrective Action Section (312) 886-0656).
Region 5 files a Consent Agreement and Final Order to conclude case against Crest Industries, Ltd., New Lenox, Illinois.
On June 1, 2007, Region 5 filed a Consent Agreement and Final Order (CAFO) resolving an administrative penalty action against Crest Industries, Ltd. (Crest) for allegedly violating Section 3008(a) of the Solid Waste Disposal Act. On September 30, 2005, Region 5 filed an administrative complaint against Crest based on alleged violations at Crest’s 1066 Industry Road, New Lenox, Illinois facility. The alleged violations at facility included: failure to have written tank assessments that were professionally reviewed and certified; failure to provide adequate secondary containment for its hazardous waste storage tanks, failure to equip its hazardous waste storage tanks with a fixed roof, closure device or closed vent system; failure to implement a hazardous waste training program and keep employee training records; failure to maintain a contingency plan; and failure to apply for a hazardous waste management facility and storage permit as required by failing to meet the above generator exemption conditions and storing hazardous waste in excess of 90 days. Crest has agreed to pay a penalty in installments over a term of 25 months totaling $200,000. This reduction reflects information submitted by Crest after the complaint was filed and other considerations.
Contact: Stephen Thorn, 312-353-9715, and Luis Oviedo, 312-353-9538
Region 5 and H. Kramer Enter Into An Amendment to Consent Agreement and Final Order.
On June 1, 2007, Region 5 and H. Kramer entered into an amendment to the Consent Agreement and Final Order (CAFO) originally filed on March 30, 2006. The original CAFO simultaneously commenced and concluded an action for Clean Air Act violations at H. Kramer’s secondary brass and bronze production plant in Chicago, Illinois. In addition to paying a penalty, the CAFO requires H. Kramer to perform a supplemental environmental project (SEP). The SEP requires H. Kramer to modify its baghouse collection system to improve the capture and control of fugitive emissions from two rotary furnaces. Currently, the fugitive emission lines from these furnaces converge and are directed to one baghouse. A second baghouse serves as a backup to handle the combined emissions if the first baghouse fails. The original SEP would connect each furnace to one of the baghouses by installing a separate flue line from each furnace to one of the baghouses.
H. Kramer has requested a modification to the SEP which would allow it to install a baghouse that the company purchased through a bankruptcy sale as a replacement for the backup baghouse that it agreed to connect to one of its two rotary furnaces. The replacement baghouse has a greater flow rate than the backup baghouse and includes four compartments whereas the old backup baghouse includes one compartment. The new baghouse is expected to improve the ability to control fugitive emissions from the furnace and will be easier to maintain because of its multi-compartment design. The cost of the SEP will increase from $500,000 to $780,000. The additional costs include the purchase price of the replacement baghouse, the cost to dismantle, clean and transport the baghouse to the H. Kramer facility, the demolition and disposal of the old backup baghouse, and the erection and connection of the new replacement baghouse. The schedule to complete the SEP will be extended by approximately four months from May 2007 to September 2007. The additional time is required to obtain the necessary permits, demolish the old backup baghouse, and install and test the new baghouse.
Contact: Christine Liszewski, primary contact 312-886-4670; Kushal Som, additional contact 312-353-5792
U.S. District Court enters consent decree for recovery of past costs incurred at the Shelly Ditch Site in Crawfordsville, Indiana .
On May 24, 2007, the United States District Court for the Southern District of Indiana, Indianapolis Division entered a Consent Decree for the Shelly ditch, Sugar Creek and Calumet Container Site. Pursuant to the terms of the Consent Decree, the Settling Defendant, Raybestos Products Company will agree to pay $119,519.18 of United States Environmental Protection Agency’s (U.S. EPA) past costs incurred at the Shelly Ditch Site. In addition, pursuant to a May 15, 2007 Administrative Order on Consent between U.S. EPA and Raybestos, the Settling Defendant has agreed to implement a removal action in Reach 4 of Shelly Ditch and pay U.S. EPA’s costs in overseeing this work. Under the Consent Decree, the Settling Defendant will receive a release for liability for costs incurred at Shelly Ditch, except those covered by the Administrative Order on Consent, and a release form liability for the Sugar Creek and Calumet Container Sites.
Contact: Robert Smith, ORC, (312) 886-0765
Region 5 enters into a Consent Agreement and Final Order resolving FIFRA violations by Henry W. Peabody, Inc.(Peabody), Lynnfield, MA.
On May 24, 2007 Region 5 entered into a Consent Agreement and Final Order that resolves claims against Henry W. Peabody, Inc., Lynnfield, MA. U.S. EPA filed a civil administrative action against Peabody, commenced and concluded pursuant to the Act and 40 C.F.R. § 22.18 on May 24, 2007. The action charged that the company violated Section 12(a) of the Act and 40 C.F.R. § 152.15 by distributing or selling an unregistered pesticide.
After Region 5 received a trade complaint regarding Peabody (which is located in Massachusetts), the Region discussed the matter with Headquarters and Region 2 enforcement. Thereafter Region 2 deferred the enforcement case to Region 5. Specifically, the Agency alleged that from March 2005 to December 2005, when Region 5 issued a stop sale order, the company distributed or sold burlap, jute and hessian cloth that had been treated with copper ammonium sulfate and copper sulfate, which had a pesticidal purpose and for which Peabody made pesticidal claims. The company distributed or sold the product without first registering the product, in violation of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA).
Originally, the Agency sought the statutory maximum penalty but after negotiations, discussions with Headquarters, and evaluating litigation considerations, the Agency agreed to accept respondents proposal of $52,500 as an appropriate penalty. The company is presently in compliance.
Contacts: Joseph Williams, ORC, (312) 886-6631, Dave Star, WPTD, (312) 886-6009.
Richmond, Indiana newspaper runs story on Laurel Stone Church Road Site Complaint
On May 19, 2007, the Richmond, Indiana Palladium Newspaper published a story about the pending Federal law suit for the Laurel Stone Church Road Superfund Site.
U.S. EPA referred the Laurel Church Road Superfund to the Department of Justice on June 20, 2006 for cost recovery, pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). U.S. EPA seeks to recover funds expended, from October 10, 2002 to August 15, 2003, while conducting CERCLA emergency removal activities at the Site. During the action, topsoil was excavated and partially buried and subsurface drums were removed and placed into roll-off boxes for off-site disposal. Once excavation was completed, the areas were backfilled and graded. A portion of the road that was damaged by the heavy disposal trucks was removed and replaced. A total of 5,656 drums and 5,256 tons of contaminated soil and other wastes were transported off-site for disposal.
A complaint was filed in U.S. District Court in this matter on November 25, 2006, seeking $2,381,429.21 in past costs, in addition to pre-judgement interest. The named defendants to the complaint are the current owners, Mr. and Mrs. Daniel R. and Noami Lynn Rapier and the past operator of the Site, Franklin County. The Rapiers added Mr. and Mrs. Gale and Juanita Hornsby in a countersuit. It is suspected that either the Rapiers or the Franklin County Commissioner brought this matter to the attention of the Richmond, Indiana newspaper.
Contacts: Ruth Woodfork, Superfund (312) 353-6431 and Nola Hicks, ORC (312) 886-7949
Judge Issues Favorable Decision in Clean Water Act Case Involving Wrongful Disposal of Sewage
On May 11, 2007, Administrative Law Judge (ALJ) Gunning issued an 81-page Initial Decision finding Respondent, Roger Barber d/b/a/ Barber Trucking, liable for all counts alleged in the Complaint, and ordered Respondent to pay the full penalty of $60,000 sought in the Complaint. Region 5 filed the Complaint in this matter in April 2005 alleging Respondent, over a two year period, land-disposed of sewage in violation of the Clean Water Act and its implementing regulations. A three-day hearing was held on this matter on April 25-27, 2006. ALJ Gunning found Respondent egregiously failed to comply with the regulations designed to protect human health and the environment from pathogens contained in sewage, and designed to protect the ground and surface waters from the nitrogen contained in sewage. The penalty sought was limited to Respondent’s ability to pay. This was the first case nationally that adjudicated alleged violations of the Clean Water Act’s sewage disposal regulations regarding the land application of sewage collected from residential septic tanks.
Primary contact: Eaton Weiler, Office of Regional Counsel, 312-886-6041. Secondary contact: Valdis Aistars, Water Division 312-886-0264)
Week of June 11, 2007
EPA Settles C.B.D. Inc. EPCRA Reporting Matter
On June 5, 2007, EPA issued a Consent Agreement and Final Order (CAFO) under EPCRA Section 325 resolving claims for civil penalties for violations of EPCRA Section 313 reporting requirements by the C.B.D. Inc. facility located at 1185 Jansen Farm Court, Elgin, Illinois. The CAFO simultaneously commences and concludes EPA’s action for EPCRA Section 313 violations regarding the Form R reporting of lead not contained in stainless steel, brass or bronze alloy for calendar year 2004. Under the CAFO, Respondent will pay a penalty of $3,500. EPA conducted an inspection at the facility on June 22, 2006, and the forms were submitted on June 28, 2006. The CAFO resolves only Respondent’s liability for federal civil penalties for the violations alleged.
Contact: Maria Gonzalez, primary contact, 312-886-6630
Administrative Settlement Agreement and Order On Consent executed for CERCLA Removal Action
On June 11, 2007, the Superfund Division Director executed a CERCLA Administrative Settlement Agreement and Order on Consent (AOC) under Sections 106, 107 and 122 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) regarding the Southwestern Site area that is adjacent to the Johns Manville NPL Site located in Waukegan, Illinois. Asbestos-contaminated soils and waste have been discovered in areas identified as Sites 3, 4, 5 and 6 on property owned by Commonwealth Edison that is adjacent to the southern and western property lines of Johns Manville former asbestos manufacturing facility in Waukegan, Illinois. The settling parties are Johns Manville and Commonwealth Edison. Under the terms of the AOC, the settling parties have agreed to: a) conduct an Engineering Evaluation Cost Analysis Study (EECA) of the southwestern site area; b) conduct U.S. EPA’s selected removal action in an Action Memorandum or other decision document after public comment; c) reimburse 100% of EPA’s past costs at the southwestern site area; and d) reimburse future response costs including the costs of overseeing the work at the southwestern site area.
Contacts: Janet R. Carlson, ORC, (312) 886-6059; Brad Bradley, Superfund (312) 886-4742.
Hazardous Waste Reclamation Company Official Sentenced For a Hazardous Waste Conspiracy.
On June 1, 2007, in federal court in Urbana, Illinois, former Hydromet Environmental, Inc., environmental compliance official Julianna Bauter was sentenced to 30 days of home confinement, a $3,000 fine and one year of probation for her role in a 1999-2003 conspiracy to (1) illegally transport, store and dispose of hazardous wastes in violation of RCRA; and (2) make false statements to the Illinois Environmental Protection Agency (IEPA). Hydromet and five of its former officers and employees were indicted in 2006. The indictment charged Hydromet; Bauter; William A. Morgan, its former CEO; John Pugh, its former plant manager; Douglas Bennett, its former chemist; and Ronald Martin, a former warehouse supervisor, with the conspiracy. The defendants were also variously charged with making false statements to IEPA and illegally transporting hazardous waste without a manifest. Pugh, Bauter, Bennett and Martin later pled guilty to one count each.
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. U.S. EPA’s Criminal Investigation Division, the Illinois Department of Natural Resources and IEPA jointly investigated this matter.
Contact: Kris Vezner, ORC, (312) 886-6827
U.S. EPA enters into Administrative Order on Consent with Peoples Gas for removal work at three sites in Chicago, Illinois
Peoples Gas operated a number of manufacture gas plants (MGP) in various locations throughout Chicago, Illinois. Three of these locations were: the 22 nd Street Station, located at 2200 South Racine Avenue, Chicago, Illinois; the Hough Place Station, located at 2500 S. Corbett St., Chicago, Illinois; and the Pitney Court Station, located at 3052 Pitney Court, Chicago, Illinois. All of the properties covered by the agreement are relatively close to the Chicago River, which was a transportation route when the MGP facilities operated. MGPs produced gas from coal from the mid-19th through the mid-20th centuries. After World War II, coal gas was phased out and replaced with natural gas for cooking and heating. At each of these sites, Peoples Gas produced coal gas. Waste from MGP operations includes tar, oil, cinders, coke (coal residue), metals (including arsenic, chromium, lead, silver, and selenium), BTEX, and a number of PAHs. This waste material was disposed of in the soil on the sites and leached to the groundwater and adjoining Chicago River. Removal work was undertaken and is on-going at each of these sites under the Illinois Site Remediation Program.
On June 5, 2007, the U.S. EPA signed an Administrative Order on Consent with Peoples Gas. Pursuant to the terms of the AOC, the Respondent agreed to continue the on-going removal work at the three sites under U.S. EPA oversight and to pay the oversight costs incurred by the U.S. EPA at the sites.
Contact: Peter Felitti, ORC, (312) 886-5114.
United States District Court Enters Consent Decree Between the United States and the State of Illinois with PennTex Resources Illinois, Inc., and Rex Energy Operating Corp.
Following the close of the public comment period, on June 6, 2007, the United States District Court for the Southern District of Illinois entered a Consent Decree between the United States and the State of Illinois with PennTex Resources Illinois, Inc., and Rex Energy Operating Corp. (collectively “Defendants”). On April 4, 2007, the United States and the State of Illinois filed a joint federal-state Complaint and simultaneously lodged a Consent Decree with the Defendants by which the United States covenants not to sue Defendants under Section 303 of the Clean Air Act (CAA), 42 U.S.C. § 7603, for their emissions of hydrogen sulfide (H2S) in Lawrence County, Illinois that occurred prior to the date of lodging of the Consent Decree in consideration of the actions that Defendants are taking to reduce H2S emissions. In addition, the State of Illinois covenants not to sue Defendants under 415 ILCS 5/42(e) for airborne emissions of H2S from their oil production facilities in Lawrence County, Illinois prior to the date of lodging of the Consent Decree, again in consideration of the emissions reductions projects Defendants are undertaking. No comments were submitted regarding the proposed settlement.
The Consent Decree is the result of expedited negotiations between the United States, the State of Illinois and Defendants. Beginning in June 2006, in response to local citizens’ complaints, U.S. EPA and the Agency for Toxic Substances and Disease Registry collected ambient air concentrations of H2S with monitors located at five residences, an elementary school, and two parks in Bridgeport and Petrolia, Illinois. This monitoring measured concentrations of H2S at levels of concern. The highest five minute average concentration was 873 parts per billion by volume (ppb) at a residence in Petrolia, Illinois. At the same location, the highest hourly concentration was 417 ppb, with maximum hourly values often over 200 ppb. At least one monitor detected concentrations over 1,000 ppb, over a 1-minute averaging time. The highest readings were recorded in the evening to morning hours, when most people are at home. ATSDR has established an acute inhalation minimal risk level (MRL) at 70 ppb based on a 30-minute exposure.
The Consent Decree provides for control measures designed to reduce H2S emissions from eight of the Defendants’ key gathering facilities and their associated wells that are closest in proximity to residents in the Bridgeport and Petrolia areas. Defendants are in the process of installing elevated flares at six gathering facilities, specifically Newell, Robins, Johnson, Boyd, Westall and Cummins facilities (hereinafter “Key Gathering Facilities”). Elevated flares are designed to destroy H 2S emissions from wells, tanks, oil truck loading operations and emergency pits. Since lodging of the Consent Decree, Defendants have installed a vapor collection system at each of the Key Gathering Facilities to collect vapors displaced from tanks, cisterns and other vessels and direct these vapors to a flare. Defendants have installed an automated electric kill system, designed to automatically shut off electricity to pumps on all oil wells to prevent any overflow of brine water to an emergency pit, for all active oil wells tied to the Newell, Robins, Johnson and Boyd gathering facilities. Based on the effectiveness of the floating cover system and the automated electric kill system, U.S. EPA will evaluate the need to install addition floating cover systems and/or automated electric kill systems.
Defendants will conduct initial emissions monitoring upon installation of the control measures. The Defendants also agreed to a procedure for evaluating the effectiveness of the control measures being installed at the Key Gathering Facilities as well as determining whether other gathering facilities also need to be controlled.
During this time, U.S. EPA is continuing to monitor the ambient air for H2S at four sites, three at residences and one site at the elementary school in the Bridgeport and Petrolia areas. One of the sites is located in the southern half of the Lawrence Wellfield at a residence in close proximity to two other gathering facilities that are not among the Key Gathering Facilities. In addition, U.S. EPA is monitoring sulfur dioxide at two of the three residential sites.
The U.S. EPA, Region 5, technical contacts for this case are: Kathryn Siegel, Air and Radiation Division, (312) 353-1377; Bonnie Weinbach, Air and Radiation Division, (312) 886-0258; and Scott Hamilton, (312) 353-4775; the ORC attorney is Mary McAuliffe, Associate Regional Counsel, at (312) 886-6237; the OECA contact is Cary Secrest, (202) 564-8661; and the DOJ attorney is Michael Zoeller at (202) 305-1478.
A Region 5 1995 Wetland Consent Decree survives attack by the Rapanos Decision in the United States District Court For The Northern District of Ohio.
On May 18, 2007, the United States District Court for the Northern District of Ohio, Western Division, dismissed Defendants’ (Ike and Patricia Parker) motion under Federal Rule of Civil Procedure 60(b) to set aside a Consent Decree based on the Rapanos Decision. The parties to the 1995 Consent Decree are the Parkers, the State of Ohio, and the Agency. The Supreme Court’s decision in Rapanos v. United States, 126 S.Ct. 2208, 165 L.Ed. 2d 159 (2006) (Rapanos) modified the definition of a wetland under the Clean Water Act (CWA). By changing the definition, the Rapanos decision arguably narrowed the scope of wetlands enforcement under the CWA. This dismissal denying Defendants’ motion involving that decision is therefore a victory for the EPA.
In 1991,the Department of Justice and the State of Ohio filed a Complaint against the Parkers for violation of Sections 310 & 404 of the CWA. The Parkers destroyed several acres of wetland when they attempted to develop their property. The Parkers placed fill in the wetland, thereby destroying it. The parties entered into a Consent Decree in 1995 in which the Parkers agreed to pay a $1000 penalty and transfer the title to their property to the State of Ohio. The State was then required under the Consent Decree to create other wetlands on the property in mitigation for the wetland that the Parkers destroyed.
The Parkers argued in their motion that the Consent Decree should be set aside under 60(b) because their property no longer met the definition of a wetland under the CWA. The Court held that even if Rapanos modified the definition of wetlands under the CWA, Rapanos had no effect on State Law which was very much a part of the complaint. The Court did not address whether the Parkers would prevail under federal law alone. The Court further held that the Parkers’ motion was not timely, and that the judgment requiring the transfer of the property in the Consent Decree was not a prospective application (on-going), another requirement of 60(b).
Contacts: Joseph Williams, ORC,(312)886-6631 and Dave Schulenberg, Water Division, (312) 886-6680)
Week of June 18, 2007
S.D. Indiana Court in U.S. et al. v. Cinergy Corp. et al. Rules in Favor of the Plaintiffs on Summary Judgment for RMRR and Fair Notice
On June 18, 2007, Judge McKinney of the S.D. of Indiana lifted the stay on the U.S. v. Cinergy PSD/New Source Review case and ruled on several pending motions, including deciding in favor of the Plaintiffs on the Plaintiffs’ motions for summary judgment on routine maintenance, repair and replacement (RMRR) and fair notice. Each decision is discussed separately.
The U.S. initiated a lawsuit against Cinergy Corp. alleging that Cinergy violated new source review (NSR) provisions of the CAA when it made physical changes to units at various power plants that constitute modifications as that term is defined by 42 U.S.C. 7411(a)(4). The Plaintiffs moved for partial summary judgment that certain projects were not within the narrow range of activities that qualify for an exclusion from NSR as routine maintenance, repair or replacement under the CAA Section 111(a)(4) and 40 CFR 52.21(b)(2)(iii). In a 71 page decision, Judge McKinney ruled in favor of the Plaintiffs on each of the projects.
At the outset, the Court noted that Cinergy failed to comply with Local Rule 56.1 which required Cinergy to specifically indicate which of Plaintiffs’ designated facts it disputes. Instead of doing this, Cinergy set out its own material facts in dispute. Accordingly, for purposes of this order, the Court accepted as true Plaintiffs’ assertions.
The Court stated that the proper standard to apply to determine whether a project was routine and therefore within the RMRR exclusion is the standard it noted in U.S. v. SIEGO, 245 F. Supp. 994, 1008 (S.D. Ind. 2003). The Court went on to state:
The RMRR analysis is a common sense approach that involves a fact intensive inquiry, on a case-by-case basis, of several factors such as a project’s nature and extent, its purpose, the frequency of the repair or replacement, and the project’s cost. . . . The frequency factor includes a consideration of how frequently a type of repair or replacement is done at a particular unit as well as how frequently it is done within the industry.
The Court noted the fact that a project was a capital expenditure is an important consideration, as is the fact that outside contractors were used for a project. Also, significant to the Court is the fact that the projects were costly when compared to annual maintenance costs for the unit at issue and the fact that the costs were high enough to require high-level management approval.
One of the affirmative defenses Cinergy raised to the Plaintiffs’ lawsuit was that it did not have fair notice of (1) the legal standards to apply to determine whether the RMRR provisions of the CAA is applicable to a given project and (2) the legal standards for determining whether a given project will cause a significant net emissions increase for purposes of NSR.
A. Fair Notice of legal standards concerning RMRR
For projects Cinergy undertook after September 1988, the Court reiterated its position from SIGECO that the 1988 Don Clay memorandum “explicitly notified the regulated community that the EPA considered routine maintenance to be a narrow exemption.” The Court went on to say that the Clay memorandum and the 7th Circuit decision in WEPCO put the regulated community on notice that the routine maintenance exemption was a multifactor test and that no single factor was dispositive. So, Cinergy had fair notice of EPA’s interpretation of the standards for the RMRR exclusion for all of its projects that began after the Clay memo.
For the projects begun prior to 1988, the Court found that the plain language of the CAA and its regulations, the EPA’s official statements and prior interpretations, and Cinergy's failure to make any inquiry prior to construction (such as an applicability determination), reveal that Cinergy did have fair notice of the interpretation of the RMRR exclusion even prior to the 1988 Clay memo. An additional factor supporting the court’s conclusion was evidence showing that Cinergy had actual knowledge of EPA’s interpretation.
B. Fair Notice of the Standard for Determining Emissions
The Court first dismissed Cinergy argument that it did not have fair notice of the precise calculation methodology. The Court concluded that as long as Cinergy was aware of the regulatory standards for determining whether a project may result in significant increases in emissions, its understanding of the exact mathematical formula is irrelevant. The Court then found that Cinergy “certainly had fair notice of the standards after the WEPCO decision and for projects it began thereafter.”
For projects begun prior to WEPCO, the Court concluded that Cinergy had fair notice of the standards for determining significant emission increases based on the plain language of the regulations. In addition, the Court found that Cinergy either had actual knowledge or should have been aware of the standards based on deposition testimony and the 1987 Casa Grande copper mining and processing applicability determination. The Court noted that the Casa Grande determination applied the wrong standard, actual to potential, but that this was harmless error. Cinergy’s own witness acknowledged that the actual to potential test was more likely to result in a finding that a PSD permit was required, than the correct actual to future actual test.
Contacts: Gaylene Vasaturo (312) 886-1811), Ignacio Arrazola (312) 886-7152, Tom Williams (312) 886-0814, Charles Mikalian (312) 886-2242 and Timothy Thurlow (312) 886-6623
The United States files a complaint against the operators of the Crescent Plating Superfund Site
On June 6, 2007, the Department of Justice filed a CERCLA complaint in the Northern District of Illinois, Eastern Division, on behalf of U.S. EPA and against Paul Carr and James Saporito. The complaint is for cost recovery pursuant to Section 107(a) and for penalties for unreasonably failing to comply with an information request pursuant to Section 104(e). The complaint alleges that Paul Carr and James Saporito are liable for response costs as operators of the facility at the time of disposal. The complaint also alleges Paul Carr unreasonably failed to comply with an information request and therefore should pay a civil penalty of $32,500 per day from August 15, 2005. U.S. EPA conducted a time-critical removal action at the former plating facility between December 2003 and June 2004 and has incurred almost $1 million in un-reimbursed response costs as of June 22, 2006.
The United States settled with Mike Sahli and Sahli Enterprises, Inc. to resolve their liability at the Site on May 22, 2006. The Settling Defendants paid $225,000 in exchange for contribution protection, a covenant not to sue, and the release of a federal lien on the property.
Primary Contact: Mark Koller, 3-2591; Secondary Contact: Steven Faryan, 3-9351. Department of Justice Contact is Jennifer Lukas-Jackson, (202) 305-2332.
Region 5 signs a Combined Complaint and Consent Agreement with AgroKey LLC.
Region 5 initiated this enforcement action in August 2006 when the Region sent a pre-filing notice letter to AgroKey LLC (AgroKey) notifying the company of violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). The violations stemmed from vandalism at the AgroKey facility resulting in release of anhydrous ammonia from the facility in May 2005. AgroKey violated Section 103 of CERCLA and Section 304 of EPCRA by failing to immediately report the release to the National Response Center, the state emergency response commission and the local emergency planning committee. On May 9, 2007, Region 5 signed a combined complaint and consent agreement with AgroKey in settlement of the company’s violations of CERCLA and EPCRA. Pursuant to the settlement, AgroKey will pay a penalty of $37,623. Prior to the settlement, the company installed valve locks on 419 tanks at all of its facilities, in addition to the 40 valve locks installed at the facility which was the subject of this enforcement action.
Contacts: Deborah Carlson, Office of Regional Counsel, (312) 353-6121; Ruth McNamara, Superfund Division, (312) 353-3193.
Former Michigan Business Operator Charged With Illegal Storage and Disposal of Hazardous Waste.
On June 14, 2007, a federal grand jury charged Michael Lee Babbitt, age 58, with illegal storage and disposal of hazardous waste under RCRA. According to the Indictment, Babbitt operated a furniture and metal parts stripping business in Grand Rapids, MI, from 1987 until 2004. The business regularly generated hazardous spent solvents, including toluene and methylene chloride, and wastes which were contaminated with lead. Little if any of the wastes were shipped off-site for proper disposal, and when the business closed its doors in 2004, numerous drums and tanks of hazardous waste were left behind. The wastes were eventually safely disposed of at a landfill under the supervision of the Michigan DEQ. The charge against Babbitt carries a maximum punishment of up to five years imprisonment and a fine of up to $50,000 per day of violation. An indictment is only an accusation, and all defendants are presumed innocent until and unless proven guilty in a court of law. The case was investigated by EPA CID, in a joint investigation with the Michigan DEQ’s Office of Criminal Investigations.
Contact: David M. Taliaferro (312) 886-0815
Week of June 25, 2007
Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with Fairway International Corp.
Region 5 initiated prefiling discussions on this matter in March, 2007. The proposed penalty was $43,320. On June 20, 2007, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with the Respondent to settle violations of Section 12(a)(1)(A)of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §136j(a)(1)(A). Specifically, the Respondent distributed or sold an unregistered pesticide. During settlement discussions, the Respondent agreed to pay a civil penalty of $1,000. The penalty was mitigated to this amount because Respondent demonstrated an inability to pay a higher penalty.
Contact: Nidhi O’Meara, primary contact 312/886-0568; Terence Bonace, additional contact 312/886-6322.
Region 5 Files a Consent Agreement and Final Order Commencing and Concluding A Proceeding with United Phosphorus, Inc.
Region 5 initiated prefiling discussions on this matter in March, 2007. The proposed penalty was $6,500. OnJune 20, 2007, Region 5 filed a Consent Agreement and Final Order Commencing and Concluding a Proceeding with the Respondent to settle violations of Section 12(a)(2)(N) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136j(a)(2)(N). Specifically, the Respondentfailed to file a Notice of Arrival prior to the arrival of a shipment of a pesticide product. During settlement discussions, the Respondent agreed to pay a civil penalty of $6,500.
Contact: Nidhi O’Meara, primary contact 312-886-0568; Joseph Lukascyk, additional contact 312/886-6322.
Region 5 Executes CAFO with Owens Corning Corp., Resolving CERCLA Violations at its Facility in Granville, Ohio.
On June 27, 2007, the Region filed a Consent Agreement and Final Order resolving Owens Corning’s liability for violating section 103(a) of CERCLA due to a release of over 800 pounds of trichloroethylene at a product testing and production facility in Granville, Ohio. Specifically, the Region alleged that Owens Corning failed to notify the National Response Center immediately upon learning of the release on October 12, 2006. The settlement requires Owens Corning to pay a cash penalty of $3,000 and spend at least $18,000 on a Supplemental Environmental Project (SEP) to replace the testing booth from which the trichloroethylene was released with another booth using another substance, one which is not listed as hazardous under 40 C.F.R. part 304.
Contact: Robert Guenther, primary contact 312-886-0566; James Entzminger, alternate contact 312-886-4062