STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2018-25601-H |
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Lehigh Cement Company, LLC, |
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Respondent. |
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AGREED ORDER
Complainant
and Respondent desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the
terms of this Agreed Order does not constitute an admission of any violation
contained herein. Respondent’s entry into this Agreed Order shall not
constitute a waiver of any defense, legal or equitable, which Respondent may
have in any future administrative or judicial proceeding, except a proceeding
to enforce this order.
I.
FINDINGS OF FACT
1.
Complainant is the Commissioner (“Complainant”)
of the Indiana Department of Environmental Management (“IDEM”), a department of
the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is Lehigh Cement Company, LLC
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. IND 005 081 542 located at 3084
W CR 225 S, in Logansport, Cass County, Indiana (“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) to:
Jonathan Morrish, President |
Corporation
Service Company, LLC |
Lehigh
Cement Company, LLC |
Registered
Agent |
300 E. John
Carpenter Freeway |
Lehigh
Cement Company, LLC |
Irving, TX
75062 |
135 North
Pennsylvania St., Suite 1610 |
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Indianapolis,
IN 46204 |
5.
Respondent notified as a permitted treatment,
storage, and disposal facility (“TSDF”), large quantity hazardous waste
generator, used oil generator and a universal waste handler. Respondent is permitted to store hazardous
waste in containers and tanks. The
permit Issuance Date is August 29, 2014 and the permit Expiration Date is
September 14, 2019.
6.
Respondent manufactures Portland and masonry
wet cement in two rotary cement kilns.
7.
329 Indiana Administrative Code (“IAC”) 3.1
incorporates certain federal hazardous waste management requirements found in
40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273,
including those identified below.
8.
During an investigation including inspections on
July 19 and August 14, 2018 conducted by a representative of IDEM, the
following violations were found:
a. Pursuant to Permit Condition IV.G.
Attachment D. and 40 CFR 264.193, all new and existing tank systems must have
secondary containment systems operated to prevent the migration of waste or
liquid out of the system and be capable of detecting and collecting releases
and accumulated liquid. The system must be lined with or constructed of
materials compatible with the waste and provided with a leak detection system
that will detect a release within 24 hours.
As noted during the July and August
inspections, Respondent did not provide secondary containment that meets 40 CFR
264.193. Specifically, Tank Farm Storage
Area’s (Tanks 1-10) secondary containment had cracks, gaps, peeling, spalls,
exposed concrete and deterioration. A valve in the Tank Farm Storage Area
secondary containment area was observed open thereby allowing the potential of
waste or liquids to migrate out of the secondary containment. Liquids were also observed under Tank #9 and
on August 14, 2018, rainwater was observed in the Railcar Staging Area’s
secondary containment. Neither the
liquids nor rainwater were removed within 24 hours.
b.
Pursuant to Permit Condition IV.G., Attachment
D. and 40 CFR 264.193(c)(4), secondary containment must be at a minimum sloped
or otherwise designed or operated to drain and remove liquids resulting from
leaks, spills, or precipitation. Spilled or leaked waste and accumulated
precipitation must be removed from the secondary containment system within 24
hours, or in as timely manner as is possible to
prevent harm to human health and the environment.
As noted during the July and August
inspections, liquids observed under Tank #9 were not removed within 24 hours
and on August 14, 2018, rainwater was observed in the Railcar Staging Area’s secondary
containment. According to the Railcar
Staging Area’s daily inspection reports, the precipitation had not been removed
within twenty-four hours.
c.
Pursuant to 40 CFR 264.193(e)(iii),
a secondary containment system must be free of cracks or gaps.
As noted during the July and August
inspections, the Tank Farm Storage Area’s (Tanks 1-10) secondary containment
had cracks, gaps, peeling, exposed concrete and deterioration.
d.
Pursuant to 40 CFR 264.194 and Permit Condition
IV.D, a generator must use appropriate controls and practices, such as level
sensing devices, high level alarms, and feed cut-offs, to prevent spills and
overflows from tank or secondary containment systems.
As
noted during the July and August inspections, there was evidence of tank
overflow observed on the Level Control Tank and Hydrapulper
Tank at the Bulk Solids Facility.
Respondent’s personnel indicated this release occurs when the pressure
relief valve opens.
e.
Pursuant to 40 CFR 264.195, Permit Condition II.D
and Permit Attachment D.4.6.13 and 4.2.9.1, the facility must inspect, at least
daily, the overfill/spill control equipment, above ground portions of the tank,
data gathered from monitoring and leak detection equipment, and the
construction materials and areas surrounding the tank system. The inspections
must be documented.
As
noted during the July and August inspections, Respondent was not adequately
performing daily inspections of the secondary containment in the Tank Farm
Storage Area (Tanks 1-10). Cracks, gaps, peeling, spalls, concrete
deterioration and standing water were observed and not being noted on daily
inspection reports.
f.
Pursuant to 40 CFR 264 Subpart J and Permit
Condition IV, the requirements of Subpart J for existing tank systems apply to
owners and operators of facilities that use tank systems for storing or
treating hazardous waste.
As
noted during the July and August inspections, Respondent’s conveyance system of
sumps and connected piping, troughs/trenches used to transport hazardous waste
from the Bulk Solids Facility’s secondary containment to the Tank Storage
Area’s secondary containment is governed by the same regulations as tanks and
therefore must comply with the requirements of 40 CFR part 264 Subpart J and
Permit Condition IV. Respondent failed
to comply with 40 CFR 264 Subpart J and Permit Condition IV.
g. Pursuant to 40
CFR 264.1083 and Permit Condition V. a tank or container for which all
hazardous waste entering the unit has an average VO concentration of 500 ppmw or greater is subject to air emission standards.
Respondent
failed to determine if waste being conveyed from the Bulk Solids Facility’s
secondary containment to the Tank Storage Area’s secondary containment has an
average VO concentration of 500 ppmw or greater.
h.
Pursuant to 329 IAC 3.1-9, 40 CFR 264.16,
Permit Condition II.E and Permit Attachments H and F.6.3.2, each person
responsible for the inspection of an individual operation learns to recognize a
potential hazard, the procedures in place to take preventative measures, and
the appropriate corrective actions that should be taken.
As
noted during the July and August inspections, according to Respondent’s representatives,
Hazardous Waste Technicians, performing daily inspections of the secondary
containment in the Tank Farm Storage Area (Tanks 1-10) were not recognizing
potential hazards. Specifically, signs
of deterioration, cracks, spalls, peeling and liquids in the secondary containment
were being overlooked.
i.
Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.173(a), a container holding
hazardous waste must always be closed during storage, except when it is
necessary to add or remove waste.
As noted during the August 14, 2018 inspection,
Respondent had a galvanized horse trough containing approximately 125 gallons
of hazardous waste near Tank # 5 in the secondary containment area stored open.
j.
Pursuant to 40 CFR 262.34(a)(2), a generator
may accumulate hazardous waste on-site for 90 days or less without a permit,
provided that the date when the accumulation begins is clearly marked and
visible for inspection on each container.
As noted during the August 14, 2018 inspection,
Respondent accumulated hazardous waste on-site, without a permit, and did not
mark hazardous waste containers with accumulation start dates. Specifically,
one galvanized horse trough containing approximately 125 gallons of hazardous
waste near Tank # 5 in the secondary containment area without a start of
accumulation date.
k.
Pursuant to 40 CFR 262.34(a)(3), a generator may
accumulate hazardous waste on-site for 90 days or less without a permit,
provided that, while being accumulated on-site, each container and tank is
labeled or marked clearly with the words "Hazardous Waste".
As noted during the August 14, 2018 inspection,
Respondent accumulated hazardous waste on-site, without a permit, and did not
label or clearly mark hazardous waste with the words "Hazardous
Waste". Specifically, one
galvanized horse trough containing approximately 125 gallons of hazardous waste
near Tank # 5 in the secondary containment area was not labeled or marked
clearly with the words “Hazardous Waste”.
9.
Respondent submitted a draft “Partial Closure Procedure Underground Piping
Bulk Management System Hydrapulper & Level
Control Area” via email on December 7, 2018.
10. In recognition of the settlement reached,
Respondent waives any right to administrative and judicial review of this
Agreed Order.
II. ORDER
1.
This Agreed Order shall be effective
(“Effective Date”) when it is approved by Complainant or Complainant’s
delegate, and has been received by Respondent. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondent shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Within thirty (30) days of the Effective Date,
Respondent shall repair the cracks, gaps peeling and exposed concrete and
deterioration in the Tank Farm Area’s secondary containment. Respondent shall submit to IDEM within ten
(10) days after completing the repairs the steps that were taken to make the
repairs and photographs of the areas before and after repairs. Respondent shall ensure the corrective
actions taken are documented on the inspection log forms.
4.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 40 CFR 264.194(b). Specifically, Respondent shall submit to IDEM
documentation of what appropriate controls and practices, such as level sensing
devices, high level alarms and feed cut-offs, have been put in place to prevent
spills and overflows from the tank or secondary containment systems on the
Level Control Tank and Hydrapulper Tank at the Bulk
Solids Facility.
5.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 264.16, Permit Condition II.E and Permit
Attachments F & H. Specifically,
Respondent shall train all employees, including Hazardous Waste Technicians,
who are responsible for inspecting the Tank Farm Storage Area, in accordance
with 40 CFR 264.195 and Attachment F. The
training shall emphasize recognizing potential hazards, the procedures in place
to take preventive measures, and the appropriate corrective actions that should
be taken when deficiencies are observed.
Specifically, employees should recognize signs of deterioration, cracks,
spalls, peeling and liquids within the secondary containment.
6.
Respondent shall submit to IDEM training
documentation within fifteen (15) days of completing the training required in
Order 5 above. The documentation shall include the instructors name, date of
training, name and position of the employees who received the training and a
description of the training.
7.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with Permit condition IV.G, Attachment D., and 40 CFR
264.193(c)(4).
Specifically, Respondent shall ensure in the event of a spilled or leaked
waste and accumulated precipitation from a tank system or from a secondary
containment system, that the waste from the system will be removed within 24
hours of detection of the leak or spill.
If the Respondent finds that it will be impossible to meet the time
period, Respondent shall notify the Commissioner and demonstrate that a longer
time period is required. The inspection
logs shall identify the problem and the corrective action taken.
8.
Within thirty (30) days of the Effective date
of the Agreed Order, Respondent shall conduct a partial closure on the
ancillary equipment being used to convey hazardous waste from the Bulk’s Solids
Facility’s secondary equipment to the Tank Storage Area’s secondary equipment
according to Permit Condition IV.J. and Attachment I
of the RCRA Permit.
9.
Within thirty (30) days of the Effective Date,
Respondent shall submit to IDEM the procedures implemented on the management of
the hazardous waste wash waters generated from pressure washing the Bulk’s
Solids Facility secondary containment in the future.
10.
Upon the Effective Date of Agreed Order,
Respondent shall comply with 40 CFR referencing 40 CFR 265.173(a), 40 CFR
262.34(a)(2), and 40 CFR 262.34(a)(3). Specifically, the trough used to accumulate
hazardous waste from Tank 5 shall be stored closed when not adding or removing
waste, labeled or marked with the words “Hazardous Waste” and marked with the
start of accumulation date.
11.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Christina Halloran, Enforcement Case
Manager |
Office of Land Quality |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
12.
Respondent is assessed and agrees to pay a
civil penalty of Twenty Nine Thousand and Six Hundred Dollars ($29,600). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”.
13.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall
pay a stipulated penalty in the following amount:
Paragraph |
Penalty |
Order paragraph # 3 |
$100/week |
Order paragraph # 4 |
$100/week |
Order paragraph # 5 |
$100/week |
Order paragraph # 8 |
$100/week |
Order
paragraph # 9 |
$100/week |
14.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant may notify Respondent at any time that a
stipulated penalty is due. Failure to
notify Respondent in writing in a timely manner of stipulated penalty
assessment shall not waive Complainant’s right to collect such stipulated
penalty or preclude Complainant from seeking additional relief against
Respondent for violation of this Agreed Order. Neither assessment nor payment
of stipulated penalties shall preclude Complainant from seeking additional
relief against Respondent for a violation of this Agreed Order; such additional
relief includes any remedies or sanctions available pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
15.
Civil and stipulated penalties are payable by
check to the “Environmental Management Special Fund.” Checks shall include the
Case Number of this action and shall be mailed to:
Indiana
Department of Environmental Management |
Office
of Legal Counsel |
IGCN,
Room N1307 |
100
North Senate Avenue |
Indianapolis, IN 46204 |
16.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date
until the date that Respondent pays any unpaid balance. Such interest shall be
payable to the Environmental Management Special Fund, and shall be payable to
IDEM in the manner specified in Paragraph, 15 above.
17.
This Agreed Order shall apply to and be binding
upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order
certify that they are fully authorized to execute this Agreed Order and legally
bind the party they represent. No change
in ownership, corporate, or partnership status of Respondent shall in any way
alter its status or responsibilities under this Agreed Order.
18.
In the event that any terms of this Agreed
Order are found to be invalid, the remaining terms shall remain in full force and
effect and shall be construed and enforced as if this Agreed Order did not
contain the invalid terms.
19.
Respondent shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondent shall ensure that all contractors, firms and
other persons performing work under this Agreed Order comply with the terms of
this Agreed Order.
20.
This Agreed Order is not
and shall not be interpreted to be a permit or a modification of an existing permit.
This Agreed Order, and IDEM’s review or approval of any submittal made by
Respondent pursuant to this Agreed Order, shall not in any way relieve
Respondent of its obligation to comply with the requirements of its applicable
permits or any applicable Federal or State law or regulation.
21.
Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s compliance with any aspect of this Agreed Order will result in
compliance with the provisions of any permit, order, or any applicable Federal
or State law or regulation. Additionally, IDEM or anyone acting on its behalf
shall not be held liable for any costs or penalties Respondent may incur as a
result of Respondent’s efforts to comply with this Agreed Order.
22.
Nothing in this Agreed
Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive
relief under any applicable Federal or State law or regulation, except that
IDEM may not, and hereby waives its right to, seek additional civil penalties
for the same violations specified in the NOV.
23.
Nothing in this Agreed
Order shall prevent IDEM or anyone acting on its behalf from communicating with
the EPA or any other agency or entity about any matters relating to this
enforcement action. IDEM or anyone acting
on its behalf shall not be held liable for any costs or penalties Respondent
may incur as a result of such communications with EPA or any other agency or
entity.
24.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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Date: ______________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS |
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DAY
OF |
________________________,
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For the
Commissioner: |
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Signed
February 8, 2019 By: |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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