STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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Complainant,

 

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v.

 

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Case No. 2011-20290-H

 

 

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ALCOA, INC.,

 

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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 Alcoa, Inc. (“Respondent”), which owns and/or operates the facility with United States Environmental Protection Agency (“EPA”) ID No. IND 006366819, located at 4000 State Road 66, Newburgh, Warrick County, Indiana (the “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”) via Certified Mail to:

 

Klaus Kleinfeld, President

CT Corporation System, Registered Agent

Alcoa, Inc.

Alcoa, Inc.

390 Park Avenue

251 E. Ohio St., Ste. 100

New York, NY  10022

Indianapolis, IN  46204

 

5.         Respondent last notified the U.S. EPA of Large Quantity Generator hazardous waste activities on June 5, 2008.

 

6.         Respondent is an integrated aluminum smelting, casting, and finishing facility that produces coiled aluminum sheet used in producing food and beverage containers.

 

7.         329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270, and Part 273 including these identified below.

 

8.         During an investigation including an inspection on June 8 & 9, 2011 and a record review on July 26, 2011, conducted by representatives of IDEM, the following violations were found:

 

a.         Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous.

 

As noted during the inspection, Respondent did not make hazardous waste determinations on the contents of two (2) 30-gallon drums, which were solid wastes generated by Respondent.  The drums were located outside of the gate at Building 847.

 

Respondent presented information at a conference between the two parties on November 9, 2011, indicating that the two drums contained paint wastes and have been transported off-site for proper disposal.  A copy of the manifest was submitted to IDEM on November 10, 2011.

 

b.         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 a rotary furnace baghouse dust accumulation roll-off with an accumulation start date.

 

Respondent corrected this violation at the time of the inspection.

Respondent presented information at a conference between the two parties on November 9, 2011, indicating that the date had been provided with a dry eraser marker and that it had faded.

 

c.        Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.171, if a container holding hazardous waste is not in good condition, or if it begins to leak, the generator must transfer the hazardous waste from this container to a container that is in good condition.

 

As noted during the inspection, Respondent stored hazardous waste in containers that were not in good condition.  Specifically, four (4) 55-gallon drums located outside of Building 847 were leaking, and the contents had not been transferred to containers in good condition.  Solidified hazardous waste had dripped from the outside of the containers onto the wooden pallet and concrete ground around the vicinity of the drums.

 

Respondent isolated and identified the drums for overpacking during the inspection.

 

Respondent presented information at a conference between the two parties on November 9, 2011, indicating that it believed that the drippage had come from material falling from shovels during cleanup of the area.  The area was cleaned up at the time of the inspection and the drums were sent off-site on June 10, 2011.  The manifest was provided to IDEM on November 10, 2011.

 

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 air, soil, or surface water which could threaten human health or the environment.

 

As noted during the inspection, Respondent failed to properly maintain the facility to minimize a release to the environment at the following three (3) areas:  (1) outside of Building 847 where hazardous waste was observed on the sides of drums, on concrete, and on the wooden pallet where drums are accumulated; (2) at Coating Line 2 (CCL2), where a thick liquid-like blend of solvent coating was observed on the concrete floor around the operator side of the Top Coater Head of CCL2; and (3) at Coating Line 3 (CCL3) where a thick solidified blend of solvent coating on the concrete floor of the idle coating line was observed on the operator side of the Top Coater Head of CCL3.

 

Respondent presented information at a conference between the two parties on November 9, 2011, indicating that the area outside Building 847 was cleaned up at the time of the inspection and that the other two areas (CCL2 and CCL3) have been fully cleaned and that capture pans have been installed at each line.  Respondent also indicated that the coating lines are in a contained building with a polymer coated floor.

 

e.         Pursuant to 40 CFR 262.34(a)(iv) referencing 40 CFR 265.1101(d)(1), for a containment building that contains both areas with and without secondary containment, the owner or operator must design and operate each area in accordance with the requirements enumerated in paragraphs (a) through (c) of this section.  Pursuant to 40 CFR 265.1101(a), all containment buildings must comply with certain design standards including, but not limited to, the containment building must be completely enclosed with a floor, walls, and a roof to prevent exposure to the elements and to ensure containment of managed wastes.

 

As noted during the inspection, Respondent failed to properly operate Containment building 136.  Specifically, Respondent had not maintained the east side of the Containment building 136 wall to be free of significant gaps and cracks that could cause hazardous waste K088 to be released from the primary barrier and into the environment.  An incident had occurred in which heavy equipment bumped into pole barriers at the east side of the Containment building, causing damage including a significant gap to the outside of the building between the floor and wall of the building.  This created a potential route of entry for hazardous waste to escape the building into the environment.

 

Respondent presented information at a conference between the two parties on November 9, 2011, indicating that the incident occurred early in the morning of June 6, 2011, operations were suspended upon discovery of the incident, and repairs were completed on June 10, 2011.  Respondent also indicated that the building’s air control system that is in operation 24 hours per day would have minimized or negated any material from leaving the building.

 

f.          Pursuant to 40 CFR 262.34(a)(iv) referencing 40 CFR 265.1101(c)(3), throughout the active life of the Containment building, if the owner or operator detects a condition that could lead to or has caused a release of hazardous waste, the owner or operator must repair the condition promptly.

 

As noted during the inspection and record review, Respondent failed to promptly repair the Containment building following the detection of a condition that could lead to a release of hazardous waste.

 

Respondent presented information at a conference between the two parties on November 9, 2011, indicating that the incident occurred on June 6, 2011 and that the repairs were completed on June 10, 2011.

 

g.         Pursuant to 40 CFR 273.15(c), a small quantity generator of universal waste who accumulates universal waste must be able to demonstrate the length of time that the universal waste has been accumulated from the date it becomes a waste or is received.

 

As noted during the inspection, Respondent was unable to demonstrate the length of time that two (2) containers accumulating universal waste spent fluorescent bulbs had been accumulated.

 

Respondent corrected the violation at the time of the inspection.

 

Respondent has initiated a new procedure to ensure that the dates are placed on the containers from the time the container is put into service, and weekly inspection are being performed.

 

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 rules listed in the findings here and/or above at issue.

 

3.         Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.11.  Specifically, Respondent shall ensure that a hazardous waste determination is made on all solid wastes generated at the Site.

 

4.         Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(2).  Specifically, Respondent shall ensure that the date when the accumulation begins is clearly marked and visible for inspection on each container accumulating hazardous waste.

 

5.         Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 265.171.  Specifically, if a container holding hazardous waste is not in good condition, or if it begins to leak, Respondent shall ensure that contents are transferred from this container to a container that is in good condition.

 

6.         Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 265.31.  Specifically, Respondent shall ensure that the facility is 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 air, soil, or surface water which could threaten human health or the environment.

 

7.         Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 265.1101(a).  Specifically, Respondent shall ensure that the Containment building remains completely enclosed with a floor, walls, and a roof to prevent exposure to the elements and to ensure containment of managed wastes.

 

8.         Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 265.1101(c)(3).  Specifically, Respondent shall ensure that throughout the active life of the Containment building, if a condition is detected that could lead to or has caused a release of hazardous waste, the condition will be promptly repaired.

 

9.         Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 273.15(c).  Specifically, Respondent shall ensure that it is able to demonstrate the length of time that  universal waste has been accumulated from the date it becomes a waste or is received.

 

10.       All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Brenda Lepter, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.       Respondent is assessed and agrees to pay a civil penalty of Nine Thousand Six Hundred Dollars ($9,600).  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”.

 

12.       The civil penalty is 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

13.       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 12, above.

 

14.       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.

 

15.       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.

 

16.       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.

 

17.       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.

 

18.       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.

 

19.       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.

 

20.       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.

 

21.       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:  _________________________

 

Nancy Johnston, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: __________________

Date: _______________________

 

 

 

 

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

By: ________________________

By: ________________________

 

Deputy Attorney General

 

 

 

Date: _______________________

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 _________

DAY OF

________________,

201_.

 

 

For the Commissioner:

 

 

 

Signed on January 19, 2012

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality