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BEFORE THE INDIANA
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE
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OF ENVIRONMENTAL
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Complainant, |
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Case No. 2009-18493-H |
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SABIC
INNOVATIVE PLASTICS |
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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
2. Respondent is Sabic Innovative Plastics Mt. Vernon, LLC (“Respondent”),
which owns and/or operates the facility
with United States Environmental Protection Agency ("EPA") ID No. IND
006376362, located at
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") via Certified Mail to:
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Dave Perkins |
CT Corporation System, Registered Agent for |
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Sabic Innovative Plastics
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Sabic Innovative Plastics
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5. Respondent last notified the U.S. EPA of large quantity
generator hazardous waste activities on February 26, 2008.
6. Respondent operates a thermoplastics
manufacturing facility.
7. 329 IAC 3.1 incorporates certain federal hazardous waste
management requirements found in 40 CFR Parts 260 through 270 and Part 273,
including those identified below.
8. During an investigation, including an inspection on February
26 & 27 and March 9 & 10, 2009, conducted by a representative of IDEM,
the following violations were found:
a. 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 inspection, Respondent
accumulated hazardous waste on-site, without a permit, and did not mark
multiple hazardous waste containers located on four pallets in Bay C of
Building 35A with accumulation start dates.
Respondent
corrected the violation at the time of the inspection.
b. 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
containers/tanks are labeled or marked clearly with the words "Hazardous
Waste."
As noted during the inspection, Respondent
accumulated hazardous waste on-site, without a permit, and did not label or
clearly mark multiple hazardous waste containers located on four pallets in Bay
C of Building 35A with the words "Hazardous Waste."
Respondent
corrected the violation at the time of the inspection.
c. Pursuant to 40 CFR 262.34(c)(1)(ii), a generator may
accumulate as much as 55 gallons of hazardous waste in containers at or near
the point of generation without a permit and without complying with 40 CFR
262.34(a), provided that the containers are marked with either the words
"Hazardous Waste" or with other words describing the contents.
As noted during the inspection, Respondent accumulated
hazardous waste in two (2) containers at or near
the point of generation at the Old Hot Oil Furnace Area outside at the Ultem
Plant without a permit and did not properly mark satellite accumulation
containers with either the words “Hazardous Waste” or with other words
describing the contents.
Respondent
corrected the violation at the time of the inspection.
d. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31,
facilities must be maintained and operated to minimize the possibility of a
fire, explosion, or any unplanned sudden or non-sudden release of hazardous
waste or hazardous waste constituents to the air, soil, or surface water, which
could threaten human health or the environment.
As noted during the inspection, Respondent failed to
properly manage the facility to minimize a release of hazardous waste or
hazardous waste constituents to the environment at the following area:
(i) At the Old Hot Oil Furnace Area outside of the Ultem Plant
where D018 Hazardous waste drippage from piping/valves/appurtenances was accumulating
in containers and being released, causing stainage of the concrete.
Since the
date of the inspection, Respondent contends that the source of the leak has
been eliminated and that the stains have been cleaned up. This is subject to field verification by
IDEM.
e. Pursuant to 329 IAC 10-4-2, no person shall cause or allow
the storage, containment, processing, or disposal of solid waste in a manner
which creates a threat to human health or the environment, including the
creating of a fire hazard, vector attraction, air or water pollution, or other
contamination.
As noted during the inspection, Respondent caused
and/or allowed solid waste to be disposed at the Site in a manner which created
a threat to human health and/or the environment in the following areas:
(i) Next to the roll-off container at the back dock of Building
14 in the Lexan Resin Area where Polycarbonate was observed on the ground;
(ii) At
the Truck Unloading Pad Area on the southside of the Ultem Plant near the V-904
Holding Tank where spent Carbon contaminated with ortho-dichlorobenzene ("ODCB"),
generated from the cleanout of the wastewater treatment tanks/carbon beds V-815A
& B, was placed on the concrete in a pile.
As a result of a rain event, discoloration of the gravel and soil surrounding
the pile was observed, as was puddling of water within the berm; and
(iii) At the V-815B tank where Carbon contaminated
with ODCB was observed on the concrete around the tank.
Respondent
contends that the release of Polycarbonate has been cleaned up and that due to
fine particle size of the powder and the design of the compactor, some powder
will always be present.
f. Pursuant to IC 13-30-2-1(1), no person shall discharge,
emit, cause, allow, or threaten to discharge, emit, cause, or allow any
contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources, into the environment in
violation of 40 CFR 265.31 and 329 IAC 10-4-2.
As noted during the inspection, Respondent allowed and/or
threatened to allow contaminants and/or wastes (addressed in violations 8 d.&
e. above) into the environment in violation of 40 CFR 265.31 and 329 IAC
10-4-2.
g. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR
265.193, all new and existing tank systems must have secondary containment.
As noted during the inspection, Respondent did not
provide adequate secondary containment for hazardous waste tanks V-525 A&B
and V-920. The impermeable coatings on
the concrete had not been maintained in order to prevent wastes stored in the
tanks from migrating through the concrete inside the secondary containment
systems. Multiple cracks and spalling of
the impermeable coatings were observed.
Since the
date of the inspection, Respondent contends that the cracks and spalling of the
coatings have been repaired. This is
subject to field verification by IDEM.
h. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR
265.195, a generator must inspect tank systems once each operating day.
As noted during the inspection, Respondent did not properly
document observations made as a result of daily inspections for hazardous waste
tanks V-525 A&B and V-920.
Since the
date of the inspection, Respondent contends that it has retrained the operators
and that the inspections are being properly documented. This is subject to field verification by
IDEM.
9. The parties met on October 5, 2009, and had subsequent
teleconferences to discuss the Notice of Violation. Respondent was able to show subsequent to the
inspection that the spent Carbon contaminated with ODCB generated from the
cleanout of the wastewater treatment tanks/carbon beds V-815A & B., which
had been cited in the Notice of Violation for having had an improper waste determination,
meets the Headworks exemption pursuant to 40 CFR 261.3(a)(2)(iv)(B), and
therefore is not a hazardous waste, although a solid waste.
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 statutes and rules listed in
the findings here and/or above at issue.
3. Within thirty (30) days of the Effective Date, Respondent
shall submit a sampling plan to IDEM for approval to determine if soil or groundwater
contamination may have resulted from the spent Carbon contaminated with ODCB
(CAS #95-50-1) being placed on the concrete in a pile at the Truck Unloading
Pad Area on the south side of the Ultem Plant near the V-904 Holding Tank. Further action shall be indicated by the
presence of ODCB in the affected medium at a concentration exceeding the
industrial default closure level for that medium provided in the edition of
Appendix 1 of the Risk Integrated System of Closure Policy that is applicable
on the Effective Date.
4. Upon IDEM approval, Respondent shall implement the sampling
plan according to the timeframes found therein.
5. If the results of the sampling indicate that the soil and/or
groundwater have been impacted by releases
of hazardous constituents such that a threat to human health or the
environment is posed, Respondent, within fifteen (15) days of IDEM's
notice, shall submit documentation to IDEM indicating that any potential
soil/groundwater contamination resulting from the spent Carbon contaminated
with ODCB being placed on the concrete in a pile at the Truck Unloading Pad
Area on the south side of the Ultem Plant near the V-904 Holding Tank shall be
addressed as a part of corrective action activities at the Site. Specifically, Respondent shall submit a New
SWMU Notification letter to IDEM indicating that there is a new Area of
Concern, called “Area south of the Ultem Plant near the V-904 Holding
Tank," which will be added to the facility's RCRA Corrective Action permit. The notification shall indicate that accurate
location information for the area has been added to the GIS. A threat to human health or the environment
shall be indicated by the presence of ODCB in the affected medium at a
concentration exceeding the industrial default closure level for that medium
provided in the edition of Appendix 1 of the Risk Integrated System of Closure
Policy that is applicable on the Effective Date.
6. Within thirty (30) days of the Effective Date, Respondent
shall provide IDEM with the details of the cleanup at the V-815B tank where
Carbon contaminated with ODCB was observed on the concrete around the tank.
7. In the event IDEM determines that any plan submitted by
Respondent is deficient or otherwise unacceptable, Respondent shall revise and
resubmit the plan to IDEM in accordance with IDEM's notice. After three (3) submissions of such plan by
Respondent, IDEM may modify and approve any such plan and Respondent must
implement the plan as modified by IDEM.
The approved plan shall be incorporated into this Agreed Order and shall
be deemed an enforceable part thereof.
8. Upon the Effective Date, Respondent shall ensure compliance with
40 CFR 262.34(a)(2). Specifically,
Respondent shall ensure that containers used to accumulate hazardous waste
on-site for 90 days or less without a permit are provided with the date when
the accumulation begins.
9. Upon the Effective Date, Respondent shall ensure compliance
with 40 CFR 262.34(a)(3). Specifically,
Respondent shall ensure that containers and tanks used to accumulate hazardous
waste on-site for 90 days or less without a permit are labeled with the words
"Hazardous Waste."
10. Upon the Effective Date, Respondent shall ensure compliance
with 40 CFR 262.34(c)(1)(ii).
Specifically, Respondent shall ensure that satellite accumulation
containers are marked with either the words “Hazardous Waste” or with other
words describing the contents.
11. Upon the Effective Date, Respondent shall ensure compliance
with 40 CFR 265.193 in order to prevent wastes stored in tanks from migrating
through the concrete inside the secondary containment systems.
12. Upon the Effective Date, Respondent shall ensure compliance
with 40 CFR 265.195 by properly documenting
observations made as a result of daily inspections for hazardous waste tanks.
13. Upon the Effective Date, Respondent shall ensure compliance
with 40 CFR 265.31 by maintaining and operating the facility, including the
area at the Old Hot Oil Furnace Area outside of the Ultem Plant, to minimize
the possibility of a fire, explosion, or any unplanned sudden or non-sudden
release of hazardous waste or hazardous waste constituents to the air, soil, or
surface water, which could threaten human health or the environment.
14. Upon the Effective Date, Respondent shall ensure compliance
with 329 IAC 10-4-2 by managing solid wastes at the facility, including the
wastes which are the subject of Finding 8e. above, in a manner which does not create a threat to
human health or the environment, including the creating of a fire hazard,
vector attraction, air or water pollution, or other contamination.
15. All submittals required by this Agreed Order, unless
Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Brenda Lepter, Enforcement Case Manager |
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Office of Land Quality – Mail Code 60-02L |
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Indiana Department of Environmental Management |
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16. Respondent is assessed a civil penalty of Seventeen Thousand
Four Hundred Dollars ($17,400). Said
penalty amount shall be due and payable to the Environmental Management Special
Fund within thirty (30) days of the Effective Date. In the event that the civil penalty is not
paid within thirty (30) days of the Effective Date, Respondent shall pay
interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until
the civil penalty is paid in full.
17. 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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Failure to comply with Order Paragraph No. 3 |
$1,000 per week |
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Failure to comply with Order Paragraph No. 4 |
$1,000 per week |
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Failure to comply with Order Paragraph No. 5 |
$1,000 per week |
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Failure to comply with Order Paragraph No. 6 |
$1,000 per week |
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Failure to comply with Order Paragraph No. 7 |
$1,000 per week |
18. Stipulated penalties shall be due and payable within thirty
(30) days after Respondent receives written notice that Complainant has
determined a stipulated penalty is due. Assessment
and payment of stipulated penalties shall not preclude Complainant from seeking
any additional relief against Respondent for violation of this Agreed
Order. In lieu of any of the stipulated
penalties set out above, Complainant may seek any other remedies or sanctions
available by virtue of Respondent’s violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
19. 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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Cashier – Mail Code 50-10C |
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20. 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.
21. 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.
22. 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.
23. 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 permit or any applicable Federal or State
law or regulation.
24. 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.
25. 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.
26. 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 the EPA or any
other agency or entity.
27. 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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Nancy
Johnston, Section Chief |
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Enforcement
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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 COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental
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By: ________________________ |
By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
Date: ______________________ |
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APPROVED AND ADOPTED BY
THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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DAY OF |
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2010. |
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For the Commissioner: |
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Signed on 5/26/10 |
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Bruce H Palin |
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Assistant Commissioner |
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Office of Land Quality |
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