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Enforcement Action Summary FY 2007 - October
October 2, 2006
EPA Issues Federal Inspector Credentials to Five Tribal Inspectors
During September, 2006, Region 5 issued five federal inspector credentials to Tribal inspectors for the purpose of conducting storm water compliance inspections under the Clean Water Act. Three of the credentials were issued to inspectors from the Fond du Lac Band and two from the Mille Lacs Band. Both Bands are located in the State of Minnesota.
The Office of Enforcement and Compliance Assurance (OECA) issued “Guidance for Issuing Federal EPA Inspector Credentials to Authorize Employees of State/Tribal Governments to Conduct Inspections on Behalf of EPA” on September 30, 2004. This guidance outlined the requirements for issuing federal credentials to tribal inspectors, including: training requirements; tracking requirements; requirements for safeguarding the credentials; and a requirement that the Region and the Tribe enter into a Memorandum of Understanding (MOU) governing the use of federal credentials. OECA subsequently issued additional guidance outlining the procedures for processing requests for federal credentials.
The Region identified storm water enforcement as one of the areas where the presence of tribal inspectors with federal credentials could enhance environmental protection in Indian country. The Region has entered into a MOU with both Bands governing the use of the federal credentials. In addition to other requirements, the MOU describes the way in which EPA and the tribal inspectors will identify regulated facilities and determine appropriate facilities for inspection. The MOU also includes a Quality Assurance Plan which sets forth in detail how the inspections will be conducted in accordance with federal requirements. All of the tribal inspectors completed the training required in the OECA guidance, and also completed a three-day training program in Chicago in May of this year. EPA is funding the Bands for inspection activities under this program through Direct Implementation Tribal Cooperative Agreements (DITCAs).
Regional ORC Primary Contact: Rodger Field, 312-353-8243; Secondary Contact: Jenny Davison, Water Division 312-886-0184
Region Resolves TSCA Lead Disclosure Case Against H&C Building and the Dan H. Watkins Trust (Moline, Illinois)
On September 27, 2006, the Acting Regional Administrator signed a Consent Agreement and Final Order (CAFO) in which H&C Building and the Dan H. Watkins Trust (Respondents) agreed to pay a penalty of $8,885 for violations of the “Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards Upon Sale or Lease of Residential Property” (Disclosure Rule), 40 C.F.R. Part 745, Subpart F; Section 409 of Toxic Substances Control Act (TSCA), 15 U.S.C. § 2689; and Section 1018 of Title X, Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4852d, at a residential apartment complex they own Moline, Illinois. Specifically, Region 5 alleged that Respondents failed to include within or as an attachment to the each of six leases to rent apartments at the complex, prior to the lessees being obligated under contract to rent the apartments: a lead warning statement; a statement by Respondents disclosing the presence of any known lead-based paint and/or lead-based paint hazards or lack of knowledge of such presence; a list of any records or reports available to Respondents regarding lead-based paint and/or lead-based paint hazards in the apartments or a statement that no such records exist; a statement by the lessees affirming receipt of certain information set out in the Disclosure Rule; the lead hazard information pamphlet; and signatures and dates of signatures of Respondents and the lessees certifying the accuracy of their statements. The parties agreed that settling the matter, without further litigation, was in the public interest. The CAFO became effective on September 28, 2006.
Regional ORC Primary Contact: Ann Coyle, 312-886-2248; Secondary Contact: Joana Bezerra, 312-886-6004
Clean Water Act Consent Decree Lodged in Indianapolis Sewer Overflow Case
On October 4, 2006, the United States Department of Justice (DOJ) lodged a Clean Water Act consent decree on EPA’s behalf in federal court in Indianapolis, requiring the City of Indianapolis to make $1.86 billion in sewer improvements over 20 years to resolve longstanding problems with its combined sewer and sanitary sewer overflows. The State of Indiana is a co-plaintiff in this case. When completed, the improvements will reduce overflow occurrences—which currently occur approximately 60 times per year—down to 4 or fewer times per year, and reduce overflow volumes by a total of 7.2 billion gallons per year. The City of Indianapolis will also pay a penalty of $1,117,800, which will be divided evenly between the DOJ and Indiana, and spend $2 million on a supplemental environmental project to eliminate failing septic systems.
The decree specifically requires Indianapolis to implement a Long Term Control Plan (LTCP) designed to greatly reduce overflows from its combined sewer system (CSOs), implement another plan designed to eliminate overflows from its sanitary sewer system (SSOs), and perform various other remedial measures. The decree also provides that the City of Indianapolis can reduce the portion of the penalty to be paid to the state by undertaking further reductions in the number of failing septic systems. The decree will be subject to a 30-day public comment period and subsequent judicial approval and is available on the DOJ website.
Regional ORC Primary Contact: Gary Prichard, 312-886-0570; Susan Perdomo, additional contact 312-886-0557
FIFRA Administrative Warrants Executed To Access Franchises of Microbe Guard, Inc., in Minnesota
On September 22, 2006, the United States Attorney General’s Office (United States) at the District of Minnesota obtained, on behalf of EPA, administrative warrants to access five franchises of Microbe Guard, Inc., in various locations in Minnesota. These warrants are authorized under Section 9(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The United States obtained these warrants to allow inspectors to access the franchise facilities because EPA had reason to believe that these facilities held evidence of sales or distributions of unregistered pesticides, which are violations of FIFRA. EPA sought these warrants because, on September 5, 2006, one of the Microbe Guard, Inc. franchise owners revoked voluntary access to its facility for an inspector of the Minnesota Department of Agriculture, who was in the process of inspecting the facility at that time. The inspector was conducting the inspection on behalf of EPA as part of an effort to determine the credibility of certain defenses Microbe Guard, Inc., had made in an EPA administrative FIFRA enforcement proceeding against it. The inspector had observed Microbe Guard, Inc. products which were possible unregistered pesticides at the franchise facility, but was asked to leave before completing the inspection or collecting any labels or other evidence concerning the Microbe Guard, Inc. products. FIFRA authorizes the issuance of administrative warrants by federal magistrate courts to allow access to inspectors acting on behalf of EPA to investigate possible FIFRA noncompliance.
Regional ORC Contacts: Erik Olson, 312-886-6829 or Mark Palermo, 312-886-6082
Region 5 files a Consent Agreement and Final Order to conclude case against Dana Container, Inc., Detroit, Michigan
On September 29, 2006, Region 5 filed a Consent Agreement and Final Order (CAFO) resolving an administrative penalty action against Dana Container, Inc. (Dana) for allegedly violating Section 3008(a) of the Solid Waste Disposal Act. On December 22, 2005, Region 5 filed an administrative complaint, with a proposed penalty of $381,730, against Dana based on alleged violations at Dana’s 1551 Caniff Street facility and 11430 Russell Street facility. The alleged violations at the 1551 Caniff Street facility included: failure to label hazardous waste; failure to conduct inspections of the 90-day storage area; failure to meet design requirements for the 90-day storage area; failure to implement a hazardous waste training program and keep training records; failure to provide safety equipment and provide required aisle space; failure to maintain a contingency plan; and failure to label a container storing used oil. The alleged violations at Dana’s 11430 Russell Street facility included: failure to label hazardous waste; failure to make a hazardous waste determination; failure to keep hazardous waste containers closed; failure to include the required elements of a training program; failure to keep records documenting job experience required for a position and any training provided; failure to equip the facility with a device capable of summoning emergency assistance; and failure to have a contingency plan. Dana has agreed to pay a penalty of $151,000. This reduction reflects information submitted by Dana after the complaint was filed that warranted the complete removal of proposed penalties for four counts and a 10% reduction based on expedited settlement.
Regional ORC Primary Contact: Stephen Thorn, 312-353-9715
Region 5 files a Consent Agreement and Final Order to commence and conclude case against Colors, Inc., Indianapolis, Indiana
On October 2, 2006, Region 5 filed a Consent Agreement and Final Order (CAFO) commencing and resolving simultaneously an administrative penalty action against Colors, Inc. for allegedly violating Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 103(a), 42 U.S.C. § 9603(a), by notifying the National Response Center eight days after a release of approximately 45,906 pounds of sulfuric acid, which has a reportable quantity of 1,000 pounds, took place. The CAFO requires Colors to pay a penalty of $19,214. Region 5 calculated a proposed penalty in this matter of $29,707. As part of a streamlined enforcement action, Region 5 offered Colors a 35% reduction based on Colors attitude during the settlement process (25% based on Colors’ cooperation and 10% based on Colors’ willingness to settle).
Regional ORC Primary Contact: Stephen Thorn, 312-353-9715
Region 5 signs a Consent Agreement and Final Order with Ashland Inc., Calumet City, Il
On September 29, 2006, Region 5 signed a Consent Agreement and Final Order (CAFO) with FONA International, Incorporated (Respondent) that both initiates and fully resolves both Resource Conservation and Recovery Act (RCRA) and Clean Air Act (CAA) violations. On September 22, 2005, Region 5 issued a Notice of Violation (NOV) under the CAA to Respondent for failing to obtain construction and operating permits, in violation of the Illinois State Implementation Plan (SIP) and Section 110 of the CAA, 42 U.S.C. § 7410. On February 2, 2006, Region 5 issued a NOV to Respondent for various RCRA violations including failure to retain copies of manifests for hazardous waste generated.
Representatives from EPA and Respondent met in October of 2005 to discuss the CAA NOV. In May of 2006, the RCRA Division issued a pre-filing notice of opportunity to confer to Respondent, informing Respondent that EPA planned to file a complaint with a proposed penalty of $59,440.00. The Air Division also issued a notice of intent to file a civil administrative complaint against Respondent, informing Respondent that EPA planned to file a complaint with a proposed penalty of $104,759.00. In July of 2006, the parties meet to discuss both the RCRA and Air violations.
In consideration of the Respondent’s cooperation, attitude, and other factors as justice may require, Region 5 agreed to reduce the civil penalty to $70,000 in settlement of the case.
Regional Primary ORC Contact: Cathleen Martwick, 312-886-7166; Secondary Contacts: Diane Sharrow, 312-886-6199 and Donald Law, 312-886-6024
Region 5 Approves Ohio TMDLs for Wakatomika Creek Watershed
In an effort to achieve the Clean Water Act goal of fishable, swimmable waters, Section 303(d)of the Act and U.S. EPA’s implementing regulations at 40 C.F.R. Part 130 require states to develop Total Maximum Daily Loads (TMDLs) for pollutants in impaired waters. On September 28, 2006, the Region approved TMDLs submitted to U.S. EPA by Ohio Environmental Protection Agency to address E. coli and dissolved solids levels in the Wakatomika Creek watershed, an impaired water in central Ohio within Coshocton, Knox, Licking and Muskingum Counties. The TMDL establishes maximum daily loads for E. coli largely originating from livestock and septic tank sources and for salinity to address contamination from mining sources to ensure the Wakatomika Creek watershed will meet established Ohio water quality standards. U.S. EPA Region 5's review ensures that the TMDL and its supporting documentation meet statutory and regulatory requirements.
Regional ORC Primary Contact: Robert S. Guenther, 312-886-0566; Secondary Contact: Jean Chruscicki, 312-353-1435
Region 5 Approves Michigan E. Coli TMDL for the Deer Creek Tributary of the North Branch of the Clinton River
In an effort to achieve the Clean Water Act goal of fishable, swimmable waters, Section 303(d) of the Act and U.S. EPA’s implementing regulations at 40 C.F.R. Part 130 require states to develop Total Maximum Daily Loads (TMDLs) for pollutants in impaired waters. On September 22, 2006, the Region approved the TMDL submitted to U.S. EPA by Michigan Department of Environmental Quality to address E. coli levels in the Deer Creek Tributary of the North Branch of the Clinton River, an impaired water in southeast Michigan largely within Macomb County northeast of Detroit. The TMDL establishes the maximum daily load of E. coli coming from point and non-point sources to ensure Deer Creek will meet the established Michigan water quality standards. U.S. EPA Region 5's review ensures that the TMDL and its supporting documentation meet statutory and regulatory requirements.
Regional ORC Primary Contact: Robert S. Guenther, 312-886-0566; Secondary Contact: Jeanette Marrero, 312-886-6543
Region 5 approves TMDL for Berry Drain, Michigan
On September 27, 2006, Region 5 approved a Total Maximum Daily Load (TMDL) for total suspended solids for Berry Drain, which is located in Sanilac County, Michigan. Excessive levels of Total Suspended Solids Concentration (TSS) from point and nonpoint source discharges near the Sandusky wastewater treatment plant (WWTP) have resulted in levels of dissolved oxygen below the applicable water quality standard. Michigan has committed to imposing wasteload allocations on the point and nonpoint sources, and has entered into a consent order under which the Sandusky WWTP is upgrading its facilities to eliminate DO effluent discharge violations by October 2007. Additionally, the Sanilac County Conservation District is applying for a CWA 319 watershed planning grant to develop best management practices and control measures that will minimize excessive TSS runoff in the Berry Drain watershed.
Regional ORC Primary Contact: Jane Woolums, 312-886-6720; Secondary Contact: Erin Newman, 312-886-4587
CERCLA ElectroVoice, MI Five Year Review and IC Implementation. On September 20, 2006, EPA Region 5 signed a Five-Year Review Report for the Electro-Voice Superfund Site located in Buchanan, Michigan. The Five Year Review determined that the hazardous waste cap and soil cleanup were constructed and functioning as intended. The Five Year Review Report determined that the off-property groundwater remedy may not be functioning as intended because there were Trichloroethylene (TCE) exceedances of the Maximum Contaminant Level (MCL) at downgradient wells that previously did not have exceedances. The Five-Year Review Report recommended contingency actions to address the groundwater issues.
As part of the Five-Year Review, the Region implemented an Institutional Control (IC) study for the Site. As part of the IC study, EPA Region 5 worked with the PRPs to develop a restrictive covenant under Part 201 of the Michigan NREPA for the Site to implement the following restrictions on the Electro-Voice property: a) prohibit interference with the hazardous waste cap over former lagoon area; b) prohibit interference with limited industrial area (former drywell area); c) prohibit residential use; d) prohibit groundwater use; and e) prohibit interference with monitoring wells. The PRPs surveyed the hazardous waste cap and limited soil industrial use areas, which was incorporated into the restrictive covenant. The owner provided the Region with a title commitment and copies of recorded encumbrances that demonstrated that: a) the owner had authority to execute the restrictive covenant; and b) prior in time recorded encumbrances did not appear to interfere with the land and groundwater restrictions. The owner recorded the restrictive covenant with the county recorder’s office on September 12, 2006. The restrictive covenant is enforceable by the PRPs, the State of Michigan pursuant to Part 201 of the Michigan NREPA and U.S. EPA as a third party beneficiary.
As part of the Five Review process, the Region reviewed an existing City of Buchanan, MI ordinance that prohibited residents from using the contaminated groundwater at the Site. The Region reviewed the City Ordinance. As a result of this review, the Region sent the City an updated groundwater contamination map and requested that the City to designate the revised area as a restricted groundwater use area.
Contact: Jan Carlson, 312-886-6059
CERCLA Wash King Laundry, MI Five Year Review. On September 28, 2006, EPA Region 5 signed a Five-Year Review Report for the Wash King Laundry Superfund Site located in Baldwin, Michigan. The Five-Year Review determined that the soil-vapor extraction and the groundwater pump and treat systems were constructed and functioning as intended. The Five Year Review Report determined that the off-property groundwater remedy was taking longer than anticipated and could require adjustments. The Five-Year Review Report recommended contingency actions to address the groundwater issues and an IC study.
Because the groundwater capture wells are encountering low extraction rates, the projected length of time required for the groundwater remedy to reach unrestricted use of the groundwater has been extended. While many of the local homeowners in this rural area are hooked into a water-supply system, some are not and, therefore, an IC study will be done for the site. The study will evaluate the current groundwater concentrations in areas where homes still use private wells and evaluate the existing groundwater use restrictions to determine if institutional controls will be necessary. The IC study should be completed in the next 6 months.
Contact: Richard Nagle, 312-353-8222
EAB denies review in part and remands in part PSD permit for Indeck, Elwood, Illinois
On September 27, 2006, the Environmental Appeals Board (EAB) issued an order remanding to Illinois Environmental Protection Agency (IEPA) a PSD permit issued to Indeck-Elwood, LLC (Indeck) for the construction of a 660-megawatt coal-fired steam electric generating station in Elwood, Illinois, adjacent to the Midewin National Tallgrass Prairie, a national prairie preserve, on the grounds that 1) the permit includes a condition which allows Indeck to construct a power plant with less capacity than addressed by the permit application; 2) IEPA and Indeck failed to conduct a proper assessment of impairment to soils and vegetation that would occur as a result of the proposed facility; 3) the permit provision exempting all shutdown, startup, and malfunction events from short-term emission limits is unlawful; and 4) Indeck’s proposed particulate matter emissions limit does not reflect Best Available Control Technology (BACT). In addition to these grounds, Petitioners, the Sierra Club and other environmental groups, had challenged the permit on the following grounds, of which the EAB denied review: 1) the permit’s sulfur dioxide limits do not reflect BACT because Indeck did not credibly consider the use of low-sulfur coal; 2) the permit unlawfully allows Indeck to burn any solid fuel without defining such term or considering alternative fuels in its BACT analysis; 3) the permit’s nitrogen oxide limit does not reflect BACT; 4) IEPA unlawfully failed to set a BACT limit for fluorides; and 5) IEPA erroneously concluded that it has no obligation to consider alternative locations for the proposed facility. In addition, Petitioners raised several challenges relating to the Endangered Species Act (ESA), inter alia, that EPA’s consultation with U.S. Fish and Wildlife Services generated significant new information about the proposed facility, and that the administrative record should be opened and the public should be afforded to opportunity to comment on this new information. The EAB accepted EPA’s position that the ESA, the Clean Air Act and relevant regulations do not provide for public participation or comment on the ESA consultation process as part of a PSD permit proceeding. However, the EAB noted that it may “be prudent” for EPA “to move the ESA consultation process further up in the permit development chain where there is more flexibility to make and implement any ESA-related permit modifications.”
Contact: Susan Tennenbaum, 312-886-0273
Region settles EPCRA 313 Reporting Case against Plaspros, Inc.
On September 29, 2006, Region 5 filed a combination Complaint/Consent Agreement and Final Order (CAFO) resolving an administrative case under Section 313 of EPCRA, 42 U.S.C. 11023 , against Plaspros, Incorporated (Respondent), located in McHenry, Illinois. The Region alleged that the Respondent failed, as required, to submit to the U.S. EPA and to the State of Illinois a Form R for Toluene for the 2002 calendar year, on or before July 1, 2003. The Region’s inspection of the Plaspros facility revealed that during the calendar year 2002, Respondent as defined by 40 C.F.R. 372.3, the toxic chemical toluene, listed at 40 C.F.R. 372.65, in quantities exceeding the 10,000 pound threshold for reporting set forth at Section 313(f) and at 40 C.F.R. 372.25, but that no Form R had been filed for the chemical. The Respondent has subsequently come into compliance by submitting the required Form R. The proposed civil amount for the violation of $18,700 was reduced in the CAFO to $14,000 in recognition of Respondent’s good faith and co-operation.
Regional Primary ORC Contact: Andre Daugavietis, 312-886-6663
EPA enters Consent Agreement and Final Order with American Greetings Corporation resolving Clean Air Act violations
On September 28, 2006, the Regional Administrator signed a Final Order resolving violations of the Clean Air Act by American Greetings Corporation (AG) which is headquartered in Cleveland, Ohio. Specifically, AG sold and/or distributed a product that contained class I or class II substances in violation of the Stratospheric Ozone Protection requirements of the Clean Air Act. AG withdrew the products from its shelves and has destroyed any of the remaining product. Under the Consent Agreement and Final Order, AG will pay a civil penalty of $84,854.50 for these violations. The proposed penalty was $84,854.50.
Regional Primary ORC Contact: Cynthia King, 312-886-6831
EPA enters Consent Agreement and Final Order with Underground Warehouses, Inc., resolving CERCLA reporting violations
On September 29, 2006, the Regional Administrator signed a Final Order resolving a violation of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by Underground Warehouse, Inc. (UWI) at its facility located in Quincy, Illinois. Specifically, UWI failed to immediately notify the National Response Center of a release of anhydrous ammonia on August 26, 2005. Under the Consent Agreement and Final Order, UWI will pay a civil penalty of $14,170 for this violation.
Regional Primary ORC Contact: Cynthia King, 312-886-6831
Region 5 Signs Consent Agreement and Final Order with New Albany Links Golf Company et al for Violations of Clean Water Act
On October 17, 2006, Region 5 entered into a Consent Agreement and Final Order (CAFO) with New Albany Links Golf Company, New Albany Links Development Company, Ltd. and Joseph Ciminello (Respondents) simultaneously commencing and concluding an action pursuant to Section 309(g) of the Clean Water Act (CWA), 33 U.S.C. §1319(g). In creating a golf course and residential development in New Albany, Ohio, Respondents deposited fill material into 7.8 acres of wetlands adjacent to Sugar Run Creek and adjacent to an unnamed tributary of Sugar Run Creek without a Section 404 permit in violation of Section 301 of the CWA. Respondents also deposited fill material into portions of the 4,700 linear feet of these on-site waterways without a Section 404 permit. The unnamed tributary of Sugar Run Creek and the impacted adjacent wetlands along Sugar Run Creek flow into Sugar Run Creek which is a water of the United States and is a navigable water under the Act. These waterways are part of the larger Scioto River watershed.
The proposed penalty in this matter was $157,500. In consideration of the Respondents’ willingness to perform a Supplemental Environmental Project ( SEP), which includes the creation of 20 acres of wetlands in the Scioto River watershed and the donation of these wetlands and a buffer zone of 67 acres to a third-party conservator, U.S. EPA mitigated the penalty to $115,000. The cost of the SEP, excluding the cost of the land, is in excess of $230,000. In addition, under Section 309(a) of the CWA, the Respondents are conducting partial on-site restoration of the impacted waterways and creating an additional 16 acres of mitigation wetlands at the same site as the SEP wetlands. These mitigation wetlands will be part of an overall 103 acre protected site which will be donated to a local conservator and preserved in perpetuity. Region 5 did not receive comments on the proposed settlement.
Regional Primary ORC Contact: Randa Bishlawi, 312-886-0510; Secondary Contact: David Schulenberg, Water Division, 312-886-6680
U.S. District Court issues Order on EPA’s Motion to Dismiss Citizen Suit Claims Challenging Bloomington, Indiana, CERCLA PCB Cleanups
On September 29, 2006, the U.S. District Court for the Southern District of Indiana issued its “Entry on Defendants’ Motions To Dismiss,” dismissing all of Plaintiffs’ non-Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) based claims. Plaintiffs (Sarah Frey, Kevin Enright, and Protect Our Woods) filed a first amended complaint against U.S. EPA and CBS Corporation (CBS)(successor to Westinghouse Electric Corporation) in 2003 alleging that CERCLA “source control” Polychlorinated Biphenyls (PCB) cleanups selected by U.S. EPA and implemented by CBS at three National Priorities List (NPL) sites were inadequate. These three cleanups are part of the CERCLA PCB remedial actions undertaken in Bloomington, Indiana, and were selected and implemented as alternatives to the incinerator remedy memorialized in a 1985 federal Consent Decree.
Specifically, Plaintiff’s alleged that the cleanups were inadequate under Resource Conservation and Recovery Act (RCRA), Toxic Substances Control Act (TSCA), and the Clean Water Act (CWA); and that EPA had failed to follow the requirements of National Environmental Policy Act (NEPA) by failing to prepare an Environmental Impact Statement (EIS). Plaintiff’s also alleged that U.S. EPA failed to follow the requirements of CERCLA by failing to prepare a Remedial Investigation/Feasibility Study (RI/FS), by failing to comply with CERCLA public participation requirements, and by failing to memorialize the alternative cleanups in a new, or modified federal consent decree. In dismissing the claims under RCRA, TSCA, the CWA, and NEPA, the district court held that CERCLA Section 113(h) provided the sole basis for review of a CERCLA remedial action, and that CERCLA superseded or made inapplicable the requirements of NEPA as regards the cleanup at issue.
As background, in 1985, U.S. EPA, the Indiana Department of Environmental Management (IDEM), Monroe County, and the City of Bloomington (as plaintiffs) entered into a Consent Decree with Westinghouse Electric Corporation (Westinghouse) for the clean-up of six PCB contaminated sites located in, and around, Bloomington, Indiana. The remedial actions were selected in an enforcement decision document (EDD) issued by U.S. EPA on August 3, 1984. The Consent Decree (and EDD) called for the excavation of nearly 650,000 cubic yards of PCB-contaminated material and the incineration of those materials in a dedicated, two-train, garbage-fired, TSCA-permitted incinerator to be built and operated by Westinghouse - the sole potentially responsible party (PRP) responsible as a generator for the PCB contamination. Four of the sites covered by the Consent Decree are NPL sites.
After entry of the Consent Decree public opposition to the incinerator rose. Applications of the necessary permits to design and build the incinerator were submitted by Westinghouse in 1991. Legislation enacted by the State of Indiana, however, prevented IDEM from processing the permit applications. Accordingly, in February of 1994, the Consent Decree parties agreed to explore potential alternative to incineration.
Alternative source control cleanups (to be followed with groundwater/spring water cleanups and stream sediment cleanup) were selected and implemented at Lemon Lane Landfill, Neal’s Landfill, and Bennett’s Dump in 1999 and 2000.
Plaintiff’s filed their original complaint in this matter, challenging these source control cleanups on April 20, 2000. On August 27, 2003, the District Court entered summary judgment on behalf of U.S. EPA holding that, because cleanup work remained (despite completion of source control operable units at the three sites) the fact that work remained precluded review under CERCLA’s Section 113 (h)(4) citizen suit provision which allows judicial review where the remedial action “taken” was allegedly in violation of CERCLA.
Plaintiff’s appealed this dismissal to the 7 th Circuit, which reversed and remanded the matter stating that there must be an “objective indicator that allows for an external evaluation, with reasonable target completion dates, of the required work for the site.” Thus, in light of the long period of time since the start of the cleanup (1985), and the long period of study still ahead, Plaintiffs were “finally entitled to their day in court.”
Regional Primary ORC Contact: Jeffrey A. Cahn, 312-886-6670; Secondary Contact: Tom Alcamo, 312-886-7278
Region 5 signs Consent Agreement and Final Orders with Microbe Guard, Inc.
On October 3, 2006, Region 5 signed a consent agreement and final order with Microbe Guard, Inc. of Maple Grove, Minnesota, to settle violations of Section 12 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136j. Microbe Guard, Inc. distributes antimicrobial pesticides for use in mold prevention and mold remediation, primarily in the new construction industry. Region 5 initiated this enforcement action by filing an administrative complaint in February of 2006, alleging that Microbe Guard, Inc. unlawfully distributed and sold multiple unregistered pesticides. The complaint included violations alleging the sale or distribution of Microbe Guard Mold Blast, Microbe Guard BioBlast, and Microbe Guard Duralast. At the time of the sale or distributions alleged in the complaint, Microbe Guard was labeling and/or advertising these products as pesticides, but had not registered them as required by FIFRA. Microbe Guard, Inc. will pay a penalty of $28,000 to settle the violations, which represents the proposed penalty of $36,400 reduced in light of Microbe Guard, Inc.’s willingness to settle the case.
Regional Primary ORC Contacts: Erik Olson, 312-886-6829; Crissy Pellegrin, 312-353-5263; Secondary Contact: Dea Zimmerman, 312-886-7187
Ypsilanti Landlord Convicted of Substantial Endangerment for Discharging Untreated Sewage to Water
In 2004, David Kircher owned the Eastern Highlands apartment complex in Ypsilanti, Michigan. On June 29, 2005, the Michigan Attorney General filed a two-count felony complaint against Kircher alleging that Kircher knowingly and unlawfully discharged a substance into the Huron River and that this discharge posed a substantial endangerment to the public health, safety or welfare. Kircher’s bench trial began October 2, 2006, in Washtenaw County Circuit Court before Judge Archie Brown. On October 12, 2006, Judge Brown issued his verdict, finding Kircher guilty on both counts. Kircher will be sentenced on December 6, 2006. Kircher faces a potential prison term of five years and a potential criminal fine of not less than $1 million, plus $2,500-$25,000 for each violation and up to $25,000 for each day of violation.
The complaint alleged that on October 12-14, 2004, Kircher and people under his direction pumped about 25,000-100,000 gallons of untreated sewage from Eastern Highlands to a storm drain flowing directly into the Huron River. At least three children were exposed to the untreated sewage during this discharge, including two minors who ingested some of the sewage.
The Southeast Michigan Environmental Crimes Task Force including U.S. EPA's Criminal Investigation Division, the Michigan Department of Environmental Quality’s Office of Criminal Investigation and the Michigan Attorney General jointly investigated this matter.
Regional Primary ORC/CID Contact: Kris Vezner, 312-886-6827
U.S. District Court for Southern District of Illinois Grants Motion for Summary Judgment in Prevention of Significant Deterioration Permit Expiration Case
On October 17, 2006, the United States District Court for the Southern District of Illinois ruled on cross-motions filed by the Sierra Club and defendant power companies concerning the proper interpretation of 40 C.F.R. §§52.21(b)(9) (commence as applied to construction) and 52.21(b)(11) (begin actual construction). Sierra Club v. Franklin County Power of Illinois et al., Case No. 05-cv-4095-JPG. Specifically, the Court determined that the defendants had neither begun a continuous program of actual on-site construction nor entered into a binding agreement to undertake a program of actual construction within 18 months of receipt of their Prevention of Significant Deterioration (PSD) permit. As a result, the Court granted Sierra Club's motion for summary judgment, enjoined the defendants to stop actual construction until they have obtained a valid PSD permit and directed the parties to submit further briefing on penalties.
At the outset, the Court dismissed the defendants’ jurisdictional arguments by finding that: 1) the fact that no agency had explicitly determined that defendants' permit had expired was irrelevant to their cause of action objection, as this was not a challenge to a final agency action but rather a citizen suit to compel action; 2) permit shields are relevant only for Title V permits; and 3) Sierra Club had established sufficient injury-in-fact to provide standing for at least one of its members. The Court similarly dismissed the defendants’ constitutional objections, noting that their Due Process concerns were "nonsensical"(slip op. at 17) and their Separation of Powers argument was "schizophrenic" (slip op. at 18).
In its discussion on the merits, the Court provided a well-reasoned and detailed analysis of the specific facts to determine that the defendants' activities "were simply not the kind of continuous or on-going construction activities of a permanent nature" listed in the regulations and EPA guidance (slip op. at 23). The Court also found that the construction agreements did not provide a "binding commitment to build" (slip op. at 27).
Regional Primary ORC Contact: Louise Gross, 312-886-6844
Citizen Suit Filed Challenging Approval of I-69 Highway Project in Indiana
On October 2, 2006, several citizen groups and citizens filed a court challenge seeking to block further implementation of the I-69 Highway project. The project is a proposed 142 mile highway project from Indianapolis to Evansville, Indiana which is a segment of the proposed North American Free Trade Highway project. The complaint was brought against the U.S. Department of Transportation, the Federal Highway Administration, the U.S. Department of Interior, the U.S. Fish and Wildlife Service (FWS), the U.S. Army Corps of Engineers, the Indiana Department of Transportation, and various officials affiliated with these agencies. The suit seeks to overturn the Federal Highway Administration’s Record of Decision approving a Tier 1 Environmental Impact Statement for the project which was issued on March 24, 2004 and ancillary decisions by the FWS and the Corps in support of this Record of Decision. In the complaint, the plaintiffs allege the Defendants violated the National Environmental Policy Act and Section 4(f) of the Department of Transportation Act through the issuance of the Record of Decision. They allege the Defendants violated Section 7 of the Endangered Species Act by failing to take into consideration impacts to the endangered Indiana Bat and improperly issuing an incidental take permit for the project. Finally, they allege the Defendants violated Section 404 of the Clean Water Act by failing to consider implementation of the least environmentally damaging practicable alternative for the project.
Regional Primary ORC Contact: Thomas J. Kenney, 312-886-0708
Citizen Suit Filed to Restore Vehicle Inspection Programs in Cincinnati and Dayton, Ohio
On October 11, 2006, an Ohio citizen named John P. Frank and an entity known as Ohio Environmental Development Limited Partnership filed an action in the U.S. District Court for the Southern District of Ohio seeking to re-instate the vehicle inspection programs known as “E-Check” in the Cincinnati and Dayton, Ohio ozone nonattainment areas. The plaintiffs claim that the Ohio Environmental Protection Agency violated the Clean Air Act when it halted the E-Check program which is still required in Ohio’s federally-approved State Implementation Plan (SIP). The plaintiffs ask the Court to order immediate reinstatement of the program.
On April 15, 2005, U.S. EPA proposed in the Federal Register to approve, per the State of Ohio's request, to approve revisions aspects of the ozone SIP, including re-designation of the Cincinnati area to attainment and, among other things, converting the vehicle inspection programs to a contingency measure in the 1-hour ozone maintenance plan. The notice stated in relevant part that: “ in response to comments, EPA is deferring action on conversion of E-Check to contingent status in the Cincinnati and Dayton areas. That is, EPA is approving a maintenance plan for the Cincinnati area in which E-Check remains an active measure for which Ohio takes no credit.” Subsequently, Ohio ended its vehicle inspection program at the end of 2005. To date, no substitute measures have been approved by EPA.
Regional Primary Contact: Andre Daugavietis, 312-886-6663
Jury convicts former environmental cleanup contractor of mail fraud
On October 17, 2006, a federal jury convicted Timothy A. Boisture of two counts of mail fraud arising from an oil well plugging project in Southern Indiana, following a two-week trial. Boisture was a partner in Environmental Consulting and Engineering Co., Inc., an environmental clean-up firm, which was hired by Indiana Department of Environmental Management (IDEM) to clean up an inactive oil production facility and plug approximately 50 oil and injection wells. Many of the wells were leaking oil and other contaminants and threatened a local pond and the Ohio River. Boisture was convicted on Counts One and Two of a five-count Indictment. Count One alleged that he defrauded IDEM by submitting false invoices charging over $44,000 for equipment that was never installed and services that were not billed by his subcontractor. Count Two alleged that Boisture defrauded his partner by inducing three other subcontractors to pay him over $140,000 in kickbacks. At Boisture’s direction, the subcontractors submitted inflated invoices to Environmental Consulting, which Boisture approved. Once the inflated bills were paid by Environmental Consulting, the subcontractors then paid Boisture the bulk of the inflated amounts. The maximum sentence for mail fraud is 20 years on each count, although the judge is required to take into account federal sentencing guidelines which will likely call for less than the maximum sentence. Boisture may also be fined up to $250,000 on each count. Boisture was acquitted of one other mail fraud charge, a count of money laundering and one count of making a false statement to investigators. Sentencing was set for January 23, 2007. The case was prosecuted by Assistant United States Attorney (AUSA) Steve DeBrota and Special AUSA David Taliaferro.
Regional Primary ORC/CID Contact: David M. Taliaferro, 312-886-9872
October 30, 2006
Region 5 Enters into a Consent Agreement and Final Order Resolving A Violation of Section 103 of CERCLA by Crystal Valley Cooperative, Lake Crystal, Minnesota.
On October 13, 2006, the Regional Administrator, U.S. EPA Region 5, signed a Consent Agreement and Final Order (CAFO) under CERCLA Section 103 pursuant to which Crystal Valley Cooperative agrees to pay a civil penalty of $18,789. The CAFO was filed with the Regional Hearing Clerk on October 13, 2006. Crystal Valley Cooperative experienced a release of 2,200 pounds of ammonia on April 16, 2005, when a bolt broke on the front running gear of an ammonia nurse tank while the tank was being transported by a Crystal Valley Coop employee. The tank rolled over into a ditch, causing the cage around the valve to break off and the valve to open. Crystal Valley Cooperative failed to promptly notify the National Response Center of the release of 2,200 pounds of ammonia. The initial penalty calculated for the CERCLA violation was $28,907. For settlement purposes, this number was mitigated down to $18,789 based on a 10% reduction for quick settlement and a 25% reduction for good faith and cooperation. Under the settlement, Crystal Valley Cooperative will pay a cash civil penalty of $18,789.
Contact: Robert H. Smith, ORC, (312) 886-0765
Environmental groups appeal EAB’s decision denying petition for review of PSD permit for coal-powered electricity generating plant in Washington County, Illinois
On October 25, 2006, the Sierra Club, the American Bottom Conservancy, American Lung Association of Metropolitan Chicago, Health and Environmental Justice-St. Louis, Lake County Conservation Alliance, and Valley Watch filed with the 7th Circuit a Petition for Review of the Environmental Appeals Board’s (EAB) decision of August 24, 2006, which denied review of a Prevention of Significant Deterioration (PSD) permit issued by the Illinois Environmental Protection Agency (IEPA), which has a delegated PSD program, to Prairie State Generating Company, LLC, authorizing the construction of a 1500-megawatt pulverized coal-fuel powered electricity generating plant in southern Illinois. The petitioners, in their appeal to the EAB, had challenged IEPA’s determinations of the “best available control technology” emission limits for sulfur dioxide, nitrogen oxides, and particulate matter, taking issue, in particular, with the relatively high-sulfur coal from the mine that will be co-located with the electric generating plant. Petitioners also challenged IEPA’s analysis of the facility’s air quality impacts, contended that a review of environmental impacts under NEPA was warranted, and argued that IEPA violated environmental justice obligations. The EAB accepted IEPA’s position that compelling the use of low-sulfur coal would redefine the facility’s basic design or purpose. The EAB also rejected the rest of Petitioners’ arguments, finding that Petitioners had failed to meet their burden of demonstrating that IEPA’s determinations were either factually or legally “clearly erroneous” or otherwise warranted review.
Contact: Susan Tennenbaum, ORC, (312) 886-0273