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Enforcement Action Summary FY 2007 - December
Week of December 4, 2006
Region 5 files FIFRA Consent Order concerning Diversified Chemical Technologies, Inc.
On November 30, 2006, Region 5 filed a Consent Agreement and Final Order (CAFO) under 40 C.F.R. Part 22 against Diversified Chemical Technologies, Inc., (Diversified). In the CAFO, EPA alleges that Diversified produced pesticides in a Detroit, Michigan, establishment which did not have a valid establishment registration number under FIFRA. In the CAFO, EPA also alleges that Diversified distributed those pesticides using labels that did not bear a valid establishment registration number. Diversified has now returned to compliance with the requirements of FIFRA. In the CAFO, Diversified agrees to pay a penalty of $2,074. This case is part of the recent Region 5 enforcement initiative focusing on unregistered FIFRA establishments.
Contact: Chuck Mikalian, primary contact, 312-886-2242; David Star, secondary contact, 312-886-6009.
Region 5 files FIFRA Consent Order concerning Premium Agricultural Commodities, Inc.
On November 29, 2006, Region 5 filed a Consent Agreement and Final Order (CAFO) under 40 C.F.R. Part 22 against Premium Agricultural Commodities, Inc., (Premium). In the CAFO, EPA alleges that Premium produced pesticides in a Blanchester, Ohio, establishment which did not have a valid establishment registration number under FIFRA. In the CAFO, EPA also alleges that Premium distributed those pesticides using labels that did not bear a valid establishment registration number. Premium has now returned to compliance with the requirements of FIFRA. In the CAFO, Premium agrees to pay a penalty of $1,548. This case is part of the recent Region 5 enforcement initiative focusing on unregistered FIFRA establishments.
Contact: Chuck Mikalian, primary contact, 312-886-2242; David Star, secondary contact, 312-886-6009.
Region 5 signs Consent Agreement and Final Order with Respondent Jackson-Jennings Farm Bureau Coop Association, Corydon, IN.
In September 2005, Region 5 initiated this enforcement action under the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (FIFRA), 42 U.S.C. §§ 136 et seq., as part of a Region 5 enforcement initiative focusing on unregistered pesticide-producing establishments out of compliance with FIFRA. On October 6, 2006, Region 5 signed a CAFO with respondent, resolving claims for civil penalties pursuant to Section 14(a) of FIFRA, 42 U.S.C. § 136 l(a)(1), and 40 C.F.R. §§ 22.1(a)(1), 22.13, 22.18, and 22.35. The CAFO alleges that respondent produced five pesticides in an unregistered establishment located in Corydon, Indiana, in violation of Section 7(a) of FIFRA, 7 U.S.C. § 136e(a). The CAFO also alleges that respondent distributed or sold pesticides with labels that did not bear a valid establishment registration number, which constitutes an unlawful act under Section 12(a)(1)(E) of FIFRA, 7 U.S.C. § 136j(a)(1)(E). Respondent has returned to compliance with FIFRA’s requirements and agreed to pay a penalty of $2,074 under the CAFO.
Contact: Diana Embil, primary contact, 312-886-7889; David Star, secondary contact, 312-886-6009.
Region 5 signs Consent Agreement and Final Order with Respondent Jackson-Jennings Farm Bureau Coop Association, Salem, IN.
In September 2005, Region 5 initiated this enforcement action under the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (FIFRA), 42 U.S.C. §§ 136 et seq., as part of a Region 5 enforcement initiative focusing on unregistered pesticide-producing establishments out of compliance with FIFRA. On October 6, 2006, Region 5 signed a CAFO with respondent, resolving claims for civil penalties pursuant to Section 14(a) of FIFRA, 42 U.S.C. § 136 l(a)(1), and 40 C.F.R. §§ 22.1(a)(1), 22.13, 22.18, and 22.35. The CAFO alleges that respondent produced fourteen pesticides in an unregistered establishment located in Salem, Indiana, in violation of Section 7(a) of FIFRA, 7 U.S.C. § 136e(a). The CAFO also alleges that respondent distributed or sold pesticides with labels that did not bear a valid establishment registration number, which constitutes an unlawful act under Section 12(a)(1)(E) of FIFRA, 7 U.S.C. § 136j(a)(1)(E). Respondent has returned to compliance with FIFRA’s requirements and agreed to pay a penalty of $2,074 under the CAFO.
Contact: Diana Embil, primary contact, 312-886-7889; David Star, secondary contact, 312-886-6009.
U.S. Court of Appeals for the Federal Circuit denies Request for Rehearing En Banc on Taking Claim.
On November 30, 2006, the United States Court of Appeals for the Federal Circuit denied petitioner’s request for a rehearing en banc. The Court had originally issued an opinion on August 9, 2006 requiring the lower Court to dismiss the taking claim that had been filed against the government. The Appellate Court found that the plaintiff, John R. Sand and Gravel Company, had not filed its claim within the applicable statute of limitation. The Appellate Court ordered the case remanded to the lower Court for dismissal of the complaint. Thus, the plaintiff was awarded no damages or attorney fees.
The Metamora Landfill Superfund Site is located in Lapeer County, Michigan. The landfill began operations in 1955 as a privately owned, unregulated open dump utilized by residents of the Village of Metamora. The operator, Russell Parrish, began illegally accepting drums of liquid industrial wastes during the mid-1960s. This continued through the 1970s. At no point was it ever licensed to accept liquid industrial wastes.
In 1969, the Plaintiff, John R. Sand & Gravel Company, entered into a 50-year lease with Parrish which granted it the exclusive right to mine sand and gravel on the Parrish property. At the time plaintiff entered into the lease, the landfill was in existence and operating as a landfill.
In September 1984, the Site was placed on the NPL. A RI/FS was conducted and two RODs were issued: one requiring the excavation and disposal of more than 30,000 drums at the Site, and the second requiring the remediation of contaminated groundwater and the closure and capping of the landfill. Both of these RODs were implemented by the PRPs. In the area covered by the landfill cap, EPA required that institutional controls be put in place to preclude activities, including mining, that could disturb the cap.
In June 2002, Plaintiff filed a complaint alleging that the environmental remediation of the Site that excluded Plaintiff from a portion of the Site caused a physical taking of a portion of its sand and gravel mining lease. The United States filed several pre-trial motions, one which was for summary judgment based on the statute of limitation. The lower Court found that the taking claim was timely filed and denied the motion.
After a trial on liability, the lower Court ruled in the United States' favor that there was no taking and thus awarded the plaintiff no damages or attorney fees. The lower Court's decision stated that the plaintiff lacked a compensable property interest because it took the mining lease subject to the existence of the landfill and allowed the landfill to continue to operate in an area that was subject to the lease. The lower Court also went on to rule that any mining in the area of the landfill cap could impact the existing groundwater remediation and endangering the public health and safety, thereby creating a public nuisance. Since the mining would be a public nuisance, preventing the plaintiff from mining would not be a compensable interest.
On appeal, the United States did not brief the issue of the statute of limitation. However, in a 2-1 decision, the Appellate Court, based on an amicus brief filed by the PRP group doing the work at the Site and sua sponte, considered the issue of the applicable statute of limitation. The Appellate Court disagreed with the lower Court and found that the taking claim had accrued more than six years prior to the filing of the complaint. Thus, the taking claim was time barred. The Appellate Court vacated the lower Court’s decision and remanded the case with instruction that the lower Court dismiss the plaintiff’s complaint. The plaintiff petitioned for a rehearing by the full Court, which was denied on November 30, 2006. The dissenting opinion, while finding that the taking claim was timely filed, stated it would have affirmed the lower Court ruling that there was no taking because the plaintiff took its mining lease subject to the existing landfill.
Contact: Peter Felitti, ORC, (312) 886-5114
Week of December 11, 2006
Region 5 files FIFRA Consent Order concerning BP Products North America, Inc. On December 6, 2006, Region 5 filed a Consent Agreement and Final Order (CAFO) under 40 C.F.R. Part 22 concerning BP Products North America, Inc., (BP). In the CAFO, EPA alleges that BP violated Section 103 of CERCLA by failing to immediately notify the National Response Center (NRC) of a 660 pound leak of ammonia at BP’s facility in Whiting Indiana. BP reported the release, which occurred on December 8, 2004, to the NRC almost nine and one half hours after it occurred. In the CAFO, BP agrees to pay a penalty of $13,203.
Contact: Chuck Mikalian, primary contact, 312-886-2242; Ruth McNamara, secondary contact, 312-353-3193.
Northern District of Indiana enters Consent Decree resolving violations of the Clean Air Act by American Iron Oxide Company and Magnetics, International, Inc.
On November 28, 2006, the Northern District of Indiana entered a Consent Decree resolving Clean Air Act violations by American Iron Oxide Company (Amrox) and Magnetics International, Inc. (Magnetics) at three facilities in Indiana. Specifically, the Complaint in the matter alleged that Amrox and Magnetics had failed to comply with the hydrochloric acid and chlorine emission requirements, as well as the recordkeeping and reporting requirements of the Steel Pickling National Emission Standards for Hazardous Air Pollutants (Steel Pickling NESHAP), Subpart CCC. The settlement addresses violations at Amrox’s Portage and Rockport, Indiana facilities, and Magnetics facility in Burns Harbor, Indiana. Under the settlement, Amrox and Magnetics will implement changes at the facilities to come into compliance with the Steel Pickling NESHAP. In addition, Amrox will perform two Supplemental Environmental Projects at the Portage facility. Amrox and Magnetics will pay a penalty of $100,000 which is based on a finding that the companies had an inability to pay a greater penalty.
Contact: Cynthia A. King, primary contact,312-886-6831, Sara Dauk, secondary contact, 312-886-0243
Wisconsin Memorandum of Agreement (MOA) Signed
EPA and the State of Wisconsin have now signed the “One Cleanup Program Memorandum of Agreement” (MOA). This MOA provides the framework for the State of Wisconsin to use a single, consolidated approach to the cleanup of a wide range of types of sites through its N.R. 700 rules rather than utilizing a range of separate programs with conflicting approaches and cleanup standards. The MOA also clarifies the relationship between EPA and the State of Wisconsin in providing for cleanups in Wisconsin; in particular, the MOA delineates the “enforcement comfort” to be given by EPA to sites Wisconsin addresses through its program.
The MOA is nationally significant in that it is the first MOA to address cleanup requirements across several environmental media, including CERCLA, RCRA, TSCA and LUST. EPA and the State of Wisconsin believe this MOA will result in an improved ability to achieve cleanup and redevelopment of contaminated properties in Wisconsin.
Contact: Leverett Nelson, Office of Regional Counsel, (312) 886-6666; Karen Peaceman, additional contact, Office of Regional Counsel, (312) 353-5751
The Seventh Circuit Denies Motion to Clarify and Petition for Rehearing in U.S. v. Gerke Excavating CWA Section 404 Case
In United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006) the Seventh Circuit held that Justice Kennedy's significant nexus standard in the Rapanos decision would govern the further stages of the litigation (following U.S. v. Marks "narrowest ground" approach to Supreme Court decisions where there is no majority opinion). On September 29, 2006, plaintiff-appellee United States filed a motion to clarify this opinion of Seventh Circuit arguing that federal regulatory jurisdiction exists if either the plurality’s standard or Justice Kennedy’s significant nexus standard is satisfied. On October 5, 2006, defendant-appellant Gerke filed a petition for rehearing with suggestion for rehearing en banc, and on November 2, 2006, the United States filed an answer to the petition. In an order dated December 1, 2006, the court denied the motion and the petition. U.S. EPA is not a party to the proceedings. The Corps of Engineers is the lead enforcement agency for the case.
Regional ORC Contact: Ignacio Arrázola, (312) 886-7152.
Company President and Company Sentenced for Illegal Discharges to the Sewer System and a Hazardous Waste Violation; United States v. Melvin Tatman And Multi-Service, Inc.
On December 14, 2006, Melvin Tatman and Multi-Service, Inc. (“MSI”) were sentenced for illegally discharging industrial wastewater into the Dayton sewer system and for a hazardous waste violation. Mr. Tatman was sentenced to six months home confinement to be followed by 18 months of probation. Mr. Tatman was also ordered to serve 100 hours of community service and pay a $5,000 fine. MSI was sentenced to two years of probation and ordered to pay a $20,000 fine.
Previously, Mr. Tatman and MSI pled guilty to a four-count Information charging them with illegally discharging industrial wastewater into the Dayton sewer system and for a hazardous waste violation. Mr. Tatman is the owner and President of MSI, an Ohio corporation, which is a textile cleaning facility in Dayton, Ohio. The industrial laundering operation at the facility produces wastewater that includes heavy metals, waste oil, and organic chemicals.
The Information alleged that Mr. Tatman and MSI knowingly discharged wastewater with a pH below 5.0 into the Dayton sewer system in the first count, that Mr. Tatman and MSI negligently discharged ignitable wastewater into the Dayton sewer system in the second count, and that Mr. Tatman and MSI negligently bypassed the pretreatment system associated with the industrial laundering operation at MSI’s facility in Dayton. In the last count, the Information alleged that MSI knowingly caused 3,500 gallons of ignitable hazardous waste to be transported without a manifest.
This case was investigated, in a joint investigation, by the Ohio Bureau of Criminal Identification and Investigation, the Ohio Environmental Protection Agency, the City of Dayton, and the U.S. EPA CID, all members of the Southwest Ohio Environmental Crimes Task Force.
Contact: Brad Beeson (440) 250-1761
Western District of Michigan enters Consent Decree resolving violations of the Clean Air Act by CEMEX, Inc., St. Mary’s Cement, Inc. and St. Barbara Cement, Inc.
On December 12, 2006, the Western District of Michigan entered a Consent Decree resolving Clean Air Act violations alleged to have been committed by CEMEX, Inc., St. Mary’s Cement, Inc., and St. Barbara Cement, Inc. Specifically, the Complaint in the matter alleges violations of the following requirements of the Act: Standards of Performance for New Stationary Sources, Section 111 of the Act, and regulations promulgated thereunder, at 40 CFR Part 60, Subpart F; and Hazardous Air Pollutants, Section 112 of the Act, and regulations promulgated thereunder, at 40 CFR Part 63, Subpart LLL, for the Portland Cement Manufacturing Industry. The Complaint also alleged violations of the Michigan CAA implementation plan, approved by the Administrator under Section 110 of the Act. The violations occurred at a Portland cement manufacturing facility located in Charelvoix, Michigan, which was owned and operated by CEMEX prior to March 31, 2005, and owned by St. Barbara and operated by St. Mary’s on and after March 31, 2005. Under the settlement CEMEX is to pay a civil penalty of $1,359,422, and St. Mary’s has committed to undertaking remedial action at the facility which will cause it to come into compliance with the CAA requirements cited in the Complaint. In addition, St. Mary’s is subject to reporting requirements, and is to perform Supplemental Environmental Projects at the facility.
Contact: Richard R. Wagner, primary contact, (312) 886-7947; Farro Assadi, secondary contact (312) 886-1424