STATE OF
INDIANA |
) |
SS: |
BEFORE THE
INDIANA DEPARTMENT OF |
||||
|
) |
|
|
||||
COUNTY OF
MARION |
) |
|
ENVIRONMENTAL
MANAGEMENT |
||||
|
|||||||
COMMISSIONER
OF THE DEPARTMENT |
) |
|
|||||
OF
ENVIRONMENTAL MANAGEMENT, |
|
) |
|
||||
|
|
) |
|
||||
Complainant, |
|
) |
|
||||
|
|
) |
|
||||
|
v. |
|
) |
Case No. 2018-25870-H
and 2018-25871-H |
|||
|
|
) |
|
||||
Tradebe Treatment & recycling, LLC, |
|
) |
|
||||
|
|
) |
|
||||
Respondent. |
|
) |
|
||||
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 and/or 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.
Respondent has a RCRA permit, which authorizes
Respondent to conduct storage and treatment activities at this Site.
5.
Respondent waives the issuance of a Notice of
Violation and the settlement period of sixty (60) days as provided for by IC 13-30-3-3.
6.
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.
7.
During an investigation including an inspection
on October 3, 2018 conducted by representatives of IDEM, the following
violations were found:
Case No. 2018-25870-H
a. Pursuant to Permit Condition III.C. and
40 CFR 264.171, if a container holding hazardous waste is not in good condition
(e.g., appreciable rusting, apparent structural defects) or if it begins to
leak, the Permittee shall transfer the hazardous waste from such container to a
container that is in good condition or otherwise manage the waste in compliance
with the conditions of this permit.
As noted during the October 3, 2018
inspection, the following containers stored in the indicated areas were not in
good condition:
Unit/Drum
#: |
Area
#: |
D003540243 |
Area 3 |
D003447163 |
Area 3 |
D003057842 |
Area 3 |
D003660635 |
Area 3 Dock |
D003536952 |
Area 4 |
D003619427 |
Area 4 |
D003619428 |
Area 4 |
D003660080 |
Area 7 North Apron |
b. Pursuant to Permit Condition III.E.1.c.,
the Permittee must manage containers as follows: Containers of 30 gallons or more must be stored
so that they can be inspected for leaks and for deterioration caused by
corrosion or other factors, without having to move the containers during the
inspection and must have adequate aisle space between rows (approximately 2 ½
feet) to facilitate inspection.
As noted during the October 3, 2018
inspection, inadequate aisle space was provided in Area 11. Respondent
corrected this violation during the inspection.
c. Pursuant to Permit Condition III.E.2.(a),
containerized hazardous waste or hazardous secondary materials either being
transferred from one permitted unit to another (such as from container storage
to tank storage) or being removed from one permitted unit followed by
replacement back into that same unit shall remain outside of permitted units
only for the minimum time necessary to either transfer the containers to a
different storage unit or to remove the containers, perform the activities that
required the staging to occur, and return the containers to a permitted storage
unit. In no instance shall this time period exceed 12 hours. The containers
will be managed in accordance with applicable conditions in Attachment D. Documentation
of container movement from a permitted storage area to a staging area followed
by placement into a permitted storage area will include the identification of
the container, the date of movement, the time the first container was removed
from permitted storage, the location of the staging area, and the time the
first container was removed from the staging area and placed into permitted
storage. This documentation shall be maintained for 30 days.
As noted during the October 3, 2018
inspection, Respondent did not have any documentation indicating time intervals
with “staged” containers in Area 8 Staging and Area 10.
d. Pursuant to Permit Condition III.E.(c), the Permittee shall not have more than 756,250 gallons
(including 346,060 gallons of liquid wastes plus additional liquids as per the
compliance schedule) of containerized hazardous waste and hazardous secondary materials
(excluding Tradebe-generated hazardous waste subject to the 90-day generator
storage requirements) at the facility at any one time. The maximum capacity of
each container storage area is listed in Table D-1, Attachment D. All
containers of hazardous waste and hazardous secondary materials at the facility
shall be counted towards the permitted capacity, excluding Tradebe's
generated waste, exempt scrap metal, and other exempt wastes.
As noted during the October 3, 2018
inspection, Area 7 North Apron is permitted for 580 Maximum Number of Pallets
of Containers. The number of counted pallets was 613. Area 4 is permitted for 0
Maximum Number of Pallets of Containers. The number of counted pallets was 108.
Area 11 is permitted for 192 Maximum Number of Pallets of Containers. The
number of counted pallets was 264.
e. Pursuant to Permit Condition VII.B., for
the proposed container storage areas for solids only (Area 4 South Pad -
Solids, Area 7a5, Area 7a6 Apron, SDS I Shredder Room, and Area 10), and for
solids and liquids (Area 4 South Pad - Liquid and Area 5 North Pad), the Permittee
must comply with the following:
1.
Fifteen (15) days prior to beginning
construction, notify IDEM of the intended construction start date.
2.
Within fifteen (15) days of completion of
construction of each container storage area and its secondary containment
system, as applicable, submit to IDEM:
a.
A letter, pursuant to Permit Condition 1.D.11, confirming that the container
storage area was constructed in accordance with Attachment D of this Permit.
b.
Updated financial assurance for the closure
cost of the proposed unit (for all areas except for Area 4 South Pad (both) and
Area 5 North Pad).
As noted
during the October 3, 2018 inspection, for SDS I Shredder Room (Area 8 Staging)
and Area 10 (Shredder Pad and Shredder Room), IDEM has not received the
construction notification letter as required in B.1. of
the Compliance Schedule. Subsequently, IDEM issued a Class 1 Permit
Modification that incorporates constructed container storage areas and removes
language referencing proposed units that will not be constructed on December
17, 2018.
f. Pursuant
to 40 CFR 264.170 through 264.178 and Permit Condition III.E. referencing Attachment D-1a(2), containers of wastes
accepted for storage/treatment are managed as follows: M. TRADEBE will manage
DOT-approved containers of various sizes, shapes, and capacities. These
containers can be arranged in various configurations within the limits of the
storage areas. Stored containers may be stacked as specified in this permit,
provided the configurations allow for inspection for leaks and provide adequate
aisle space between containers/pallets. Several minor containers (e.g. pint,
pails, thirty-gallon containers, etc.) may be placed on pallets and stacked as
specified below. TRADEBE also manages bulk size containers (e.g.., totes, cubic
yard boxes) that are designed to be stacked (i.e. containers typically have
structural components that are designed and intended to safely support the
container(s)). Please refer to examples in Appendix D-13. For the purpose of
this Permit, containers with integrated devices that raise the container off of
the floor are considered to be equivalent to a container on a pallet. There are
different category conditions for stacking of containers at TRADEBE. The
categories of stacking conditions are separated in the following groups: General
Container Stacking; Stacking Containers in a Unit; Double-Stacking Units; and
Stacking of Individual Containers on a Unit.
1.
General Container
Stacking Conditions:
c.
Containers must be
stacked in stable configurations (i.e., container(s) will not readily fall off
of the pallet or damage the integrity of the containers or supporting
structure). Banding, shrink-wrapping or other devices may be required to
stabilize the containers.
As noted during the October 3, 2018
inspection, containers were not stacked in stable configurations:
Unit/Drum
#: |
Area
#: |
D003631813 |
Area 11 |
No Drum #'s |
Area 3 (Multiple containers) |
No Drum #'s |
Area 4 South Pad (Multiple containers) |
g. Pursuant to 40 CFR 264.170 through 264.178 and Permit Condition III.E. referencing Attachment D-1a(2), M.1.e., containers
must be stacked to prevent overhanging of containers that would result in
unstable configurations or reduction of the required aisle space.
As noted during the October 3, 2018
inspection, drum # D003637964 was overhanging its pallet in Area 4.
h. Pursuant to 40 CFR 264.177(c) and Permit
Condition III.I.3. referencing D-1a(2)S, the Permittee shall ensure that it
stores incompatible wastes and materials to prevent the generation of extreme
heat, pressure, fire, explosions or violent reactions, production of
uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to
threaten human health or the environment.
4) The incompatible materials must be
separated by either; distance, splash guards, or other barriers to prevent
leakage from reaching the containment area of other incompatibles.
As noted during the October 3, 2018 inspection,
the following incompatible wastes were being stored on the same pallet/cage:
Unit/Drum
#: |
Area
# |
Incompatibilities: |
D003546821 |
Area 4 |
Flammable gas |
D003546820 |
Area 4 |
Oxidizer |
Case No.
2018-25871-H
8.
During an investigation including an inspection
on October 18, 2018 conducted by representatives of IDEM, the following
violations were found:
a. Pursuant to Permit Condition III.E.2.(a),
containerized hazardous waste or hazardous secondary materials either being
transferred from one permitted unit to another (such as from container storage
to tank storage) or being removed from one permitted unit followed by replacement
back into that same unit shall remain outside of permitted units only for the
minimum time necessary to either transfer the containers to a different storage
unit or to remove the containers, perform the activities that required the
staging to occur, and return the containers to a permitted storage unit. In no
instance shall this time period exceed 12 hours. The containers will be managed
in accordance with applicable conditions in Attachment D. Documentation of container
movement from a permitted storage area to a staging area followed by placement
into a permitted storage area will include the identification of the container,
the date of movement, the time the first container was removed from permitted
storage, the location of the staging area, and the time the first container was
removed from the staging area and placed into permitted storage. This
documentation shall be maintained for 30 days.
As noted during the October 18, 2018
inspection, the facility had five (5) drums containing liquid hazardous waste
that were staged outside of permitted storage for greater than 12 hours. Additionally,
the document provided did not detail the time that the containers were first
removed from permitted storage, and the subsequent submitted documentation did
not detail the time that the containers were first removed from permitted
storage.
b. Pursuant
to 40 CFR 264.170 through 264.178 and Permit Condition III.E. referencing Attachment D-1a(2), Attachment D - TABLE D-1, the
container storage area maximum design capacity is the following:
Container area |
Area (ft2) |
Drawing Number |
Stacking Height of Pallets |
Maximum Number of Pallets of Containers |
Maximum Number
of 55-Gallon Drums By Available Space |
Maximum No. Of 55- Gal. Drums Limited by space, Secondary
containment, or facility |
Volume Capacity Gallons |
Area 7 North Apron |
7,925 |
B-3-97 |
2 |
580 |
2,320 |
2,320 |
127,600 |
As noted during the October 18, 2018
inspection, the facility had 871 pallets containing cubic yard boxes, totes,
drums, pails, and shrink wrapped boxes of various sizes located in Area 7 North
Apron. This exceeds the permitted capacity of 580 pallets by 291 pallets.
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.
Upon the Effective Date, Respondent shall
ensure compliance with 40 CFR 264.171 and Permit Condition III.C., and Permit
Attachment D-1a(2)C. Specifically, Respondent shall
ensure that a container holding hazardous waste is in good condition and if
not, must transfer the hazardous waste from this container to a container that
is in good condition or manage the waste in some other way that complies with
this part.
4.
Upon the Effective Date, Respondent shall
ensure compliance with Permit Condition III.E.2.(a).
Specifically, Respondent shall in no instance allow containerized hazardous
waste to be staged in an area outside a permitted area for more than twelve
(12) hours pursuant to the April 28, 2017 permit. Documentation of container
movement will include the identification of the container, the date of
movement, the time the first container was removed from permitted storage, the
location of the staging area, and the time the first container was removed from
the staging area and placed into permitted storage. This documentation shall be
maintained for 30 days.
5.
Upon the Effective Date, Respondent, shall not
exceed 756,250 gallons of containerized hazardous waste and hazardous secondary
materials at the facility at any one time, and shall not exceed the maximum number
of pallets as listed in Permit Attachment D.
6.
Upon the Effective Date, Respondent shall stack
containers in stable configurations as outlined in Attachment D-1a(2).
7.
Upon the Effective Date, Respondent shall
ensure compliance with 40 CFR 264.177(c), and Permit Condition III.I.3., and
Attachment D-1a(2)M.1.f. Specifically, Respondent
shall ensure all materials stored within the stacked containers are compatible.
8.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Debbie O’Brien, Enforcement Case
Manager |
Office of Land Quality |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
9.
Respondent is assessed and agrees to pay a
civil penalty of Nine Thousand Seven Hundred Fifty dollars ($9,750). Within thirty (30) days of the
Effective Date of the Agreed Order, Respondent shall pay a portion of this
penalty in the amount of One Thousand Nine Hundred Fifty dollars ($1,950). 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 Seven Thousand Eight Hundred dollars ($7,800)
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.
10.
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 14.
11.
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:
Cashier’s
Office |
Indiana
State Department of Health |
PO
Box 7236 |
Indianapolis,
IN 46207 |
Respondent shall provide Complainant
with documentation of payment to the ISDH-Lead Trust Fund within one (1) week
of such payment.
12.
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 # 4, 5 and 7 |
$ 250 per occurrence |
13.
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.
14.
Civil penalties are payable by check to the “Environmental
Management Special Fund.” Checks shall include the Case Numbers 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 |
15.
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 14, above.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
|||
Department of Environmental Management |
|
|||
|
|
|||
By: _________________________ |
By:
_________________________ |
|||
|
Linda
McClure, Section Chief |
|
||
|
Enforcement
Section |
Printed: ______________________ |
||
Office of
Land Quality |
|
|||
|
Title: ________________________ |
|||
|
|
|||
Date: __________________ |
Date: _______________________ |
|||
|
|
|||
|
|
|||
|
COUNSEL FOR RESPONDENT: |
|||
|
|
|||
|
|
|||
|
By: ________________________ |
|||
|
|
|
||
|
|
|||
|
Date: ______________________ |
|||
|
||||
APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
||||
MANAGEMENT
THIS |
______ |
DAY
OF |
________________________,
20_____. |
|
|
||||
|
For the
Commissioner: |
|||
|
|
|||
|
Signed on
11/19/19___________ |
|||
|
Peggy Dorsey, Assistant Commissioner |
|||
|
Office of
Land Quality |
|||