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STATE OF
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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
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25843-H |
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Tradebe treatment & recycling, 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 Tradebe Treatment & Recycling,
LLC (“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. IND000646943, located at 4343
Kennedy Avenue, in East Chicago, Lake 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”) on April 5, 2019 via Certified Mail to:
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Timothy
Denhof, EHS Manager |
Corporation
Service Company |
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Tradebe
Treatment & Recycling, LLC |
Registered
Agent for |
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4343
Kennedy Avenue |
Tradebe
Treatment & Recycling, LLC |
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East
Chicago, IN 46312 |
135
N Pennsylvania Street, Suite 1610 |
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Indianapolis,
IN 46204 |
5.
Respondent has a RCRA permit, which authorizes
Respondent to conduct treatment and storage activities at this Site.
6.
This inspection was conducted as a focused
evaluation of Respondent’s hazardous waste consolidation operations for
off-site shipments in roll-offs or dump trucks, in part, due to a report of a
fire that occurred during transportation involving a manifested hazardous waste
shipment from Tradebe’s East Chicago, Indiana
facility to Green America Recycling, LLC in Hannibal, MO on April 19, 2018.
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 an inspection
June 13, 2018 conducted by representatives of IDEM, the following violations
were found:
a. Pursuant to 40 CFR 264.76, if a
facility accepts for treatment, storage, or disposal any hazardous waste from
an off-site source without an accompanying manifest or without an accompanying
shipping paper as described by §263.20(e) of this chapter, and if the waste is
not excluded from the manifest requirement by this chapter, then the owner or
operator must prepare and submit a letter to the Regional Administrator within
15 days after receiving the waste.
As noted during the inspection,
Respondent accepted three (3) shipments of hazardous waste that were not
accompanied by a proper manifest. Three
(3) roll-offs of hazardous waste contaminated soil, generated in Illinois from
a fire response were shipped with a single photocopy of the original manifest
that listed Tradebe Environmental Services, LLC as the generator and Green
America as the destination facility. Respondent failed to submit an unmanifested waste report to the Commissioner.
b. Pursuant to 40 CFR 264.72(c), upon
discovering a significant discrepancy in quantity or type, the owner or
operator must attempt to reconcile the discrepancy with the waste generator or
transporter. If the discrepancy is not resolved within 15 days after receiving
the waste, the owner or operator must submit a letter to the Regional
Administrator a letter describing the discrepancy and attempts to reconcile it,
and a copy of the manifest or shipping paper at issue.
As noted during the inspection and
subsequent review of the submitted waste profiles and analytical information,
the facility received, accepted, and processed waste shipped on manifest
011205502FLE line 27(a) that significantly differed from the waste profile
without working with the generator to resolve the discrepancy. Respondent
accepted the waste as it still met the criteria for the facility’s assigned
internal processing code. However, no investigation as to the discrepancy
between the waste analysis and waste profile was conducted. A manifest
discrepancy was not noted on the manifest nor has a manifest discrepancy letter
been submitted to IDEM.
c. Pursuant to 40 CFR 264.16 and Permit
Condition II.F., referencing Attachment H, the Permittee shall conduct
personnel training as required. This training program shall follow the attached
outline in the Personnel Training Plan, Attachment H.
As noted during the inspection, Permittee
lacked adequate personnel training because:
i.
Respondent’s staff signed on April 23, 2018, as
the person receiving the waste on behalf of the owner or operator of the
designated facility, a photocopy of hazardous waste manifest 018004359JJK. This
photocopy was used to transport two 20-yard boxes that contained hazardous
waste that had been transferred from the end dump truck involved in the fire.
The photocopy was used to transport both roll-offs back to the facility. This
photocopy did not reflect that the waste was returned to Respondent’s facility
and indicates that the waste was received by the original designated facility,
Green America in Hannibal, MO.
ii.
On June 14, 2018, Respondent’s staff signed, as
the person receiving the waste on behalf of the owner or operator of the
designated facility, a photocopy of hazardous waste manifest 018004359JJK that
was used to transport three (3) 20-yard boxes of hazardous waste soil. This
photocopy did not reflect that the waste was returned to Respondent and
indicated that the waste was received by the original designated facility,
Green America in Hannibal, MO.
iii.
According to the submitted profile and
analytical information, Respondent received, accepted, and processed waste
shipped on manifest 011205502FLE line 27a(6) that significantly differed from
the waste profile without working with the generator to resolve the
discrepancy. Respondent’s staff stated that the facility accepted the waste as
it still met the criteria for Respondent’s assigned internal processing code. However,
no investigation as to the discrepancy between the waste analysis and the waste
profile was conducted.
iv.
Based on sample analysis, the drums shipped on
manifest 018004979JJK line 27a(10), did not match the
constituent make up as detailed in the waste profile, suggesting that if a
representative sample was taken, the waste did not match the profile. Respondent’s
staff stated that the facility accepted the waste as it still met the
criteria for Respondent’s assigned internal processing code and suggested that
the sample must not have been representative.
d. Pursuant to 40 CFR 270.15(d), Permit
Condition II.G. referencing 40 CFR 264.17 and Permit
Condition III.I.1. referencing 40 CFR 264.17(b), the owner or operator of a
facility that treats, stores or disposes ignitable or reactive waste, or mixes incompatible waste or incompatible waste and
other materials, must take precautions to prevent reactions which: generate
extreme heat or pressure, fire or explosions, or violent reactions.
As noted during the inspection,
according to the individual manifests for the consolidated wastes that were
part of the shipment that caught on fire, Respondent consolidated potentially
incompatible materials, including a container of corrosive solids containing
nitric acid and sulfuric acid contaminated filters and absorbents (D002, D007),
manifest 011205502FLE line 27a(6), and two (2) containers of
N-IH-Tetrazol-5-YL-1H-Tetrazol-5-Amine Ammonium Salt (D001), manifest
011724727FLE, line 9a(1). According to the safety data sheet for
N-IH-Tetrazol-5-YL-1H-Tetrazol-5-Amine Ammonium Salt, when in contact with
strong acids, it becomes highly friction sensitive.
9. 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 prepare and submit a letter to IDEM describing procedures to
use in the future to identify significant discrepancies and how to flag
discrepancies between the waste sample and the profile requiring resampling.
4.
Within thirty (30) days of the Effective Date,
Respondent shall submit to IDEM the actions taken by Respondent to take
precautions to prevent accidental ignition or reaction of ignitable or reactive
waste and minimize the possibility of the violations cited above from happening
again. The actions shall include, at a minimum: the review of representative
sampling procedures; how to recognize when a sample does not match the waste
profile; what to do if the sample does not meet the waste profile including how
to prepare a manifest discrepancy report; and procedures to prevent the mixing
of potentially incompatible materials. The training shall provide a review of
procedures and practices established by Respondent to minimize a recurrence and
shall include a review of the violations noted in this enforcement action, a
discussion as to what happened, as well as the consequences resulting because
of the violations.
5.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Debbie O’Brien, Enforcement Case
Manager |
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Office of Land Quality |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
6.
Respondent is assessed and agrees to pay a
civil penalty of Twenty One Thousand Four Hundred ($21,400). Within thirty (30) days of the
Effective Date of the Agreed Order, Respondent shall pay a portion of this
penalty in the amount of Four Thousand Two Hundred Eighty dollars ($4,280). 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.”
In lieu of payment to IDEM of the
remaining civil penalty, Respondent shall make a cash payment of Seventeen Thousand One Hundred Twenty Dollars
($17,120) to the Indiana State Department of Health-Lead Trust Fund (”ISDH-Lead
Trust Fund”) to fund a Supplemental Environmental Project (“SEP”) for
activities related to the abatement of lead in qualifying residential
properties in Indiana. Respondent shall make such payment to the “ISDH-Lead
Trust Fund” within thirty (30) days of the Effective Date of this Agreed Order.
Payment to the ISDH-Lead Trust Fund satisfies Respondent’s obligation to
undertake a SEP to offset a portion of the civil penalty assessed in this
matter.
Implementation of this SEP will benefit
Indiana communities by reducing the exposure to lead in homes where owners are
unable to afford lead hazard abatement work. Lead abatement can improve health
outcomes for infants, children, and adults by reducing developmental disorders,
attention deficit hyperactivity disorder-related behaviors (ADHD), anemia,
hypertension, and kidney and brain damage.
The SEP proceeds will be spent on lead
abatement for residential homes whose owner/occupants have applied for lead
abatement pursuant to the Lead Protection Program and are residing in Indiana.
7.
In the event that Respondent does not make its
SEP payment within thirty (30) days of the Effective Date of this Agreed Order,
the full amount of the civil penalty as stated in this paragraph, plus interest
established by IC 24-4.6-1-101 on the remaining amount, less the portion of the
civil penalty Respondent has already paid, will be due to IDEM within fifteen
(15) days from Respondent’s receipt of IDEM’s notice to pay. Interest, at the
rate established by IC 24-4.6-1-101, shall be calculated on the amount due from
the date which is thirty (30) days after the Effective Date of this Agreed
Order until the full civil penalty is paid. Such interest shall be payable to
the “Environmental Management Special Fund,” and shall be payable to IDEM in
the manner specified in Order Paragraph 11.
8.
Payment for the SEP is payable by check to the
“ISDH-Lead Trust Fund.” The text “SEP-Residential Lead Abatement” and the Case
Number of this action shall be included in the memo line of the check. The
check shall be mailed to:
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Cashier’s
Office |
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Indiana
State Department of Health |
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PO
Box 7236 |
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Indianapolis,
IN 46207 |
Respondent shall provide Complainant
with documentation of payment to the ISDH-Lead Trust Fund within one (1) week
of such payment.
9.
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:
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Paragraph |
Penalty |
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Order
paragraph # 3, and 4 |
$
250 per week late |
10.
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.
11.
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:
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Indiana
Department of Environmental Management |
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Office
of Legal Counsel |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
12.
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 11, above.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Linda L.
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Enforcement
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Printed: ______________________ |
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Office of
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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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For the
Commissioner: |
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9/24/19______________________ |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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