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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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COUNTY OF MARION |
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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
Nos. 2012-20782-H |
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SUPERIOR
OIL COMPANY, 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 Superior Oil Company, Inc., which owns and/or operates a facility with U.S.
EPA I.D. number IND 039994975, located at 400 West Regent Street in
Indianapolis, Marion 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:
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Raymond
J. Roembke, Jr., President |
Douglas P.
Stewart, Registered Agent |
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Superior Oil Company, Inc. |
Superior Oil Company, Inc. |
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1402 North Capital Ave., Suite 100 |
1402 North Capital Ave., Suite 100 |
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Indianapolis, IN 46202 |
Indianapolis, IN 46202 |
5. Respondent blends, packages, and
distributes solvents and other chemicals, and also currently functions as a
transporter and transfer facility for both hazardous and non-hazardous wastes.
6. Respondent has determined that its
non-thinner line flushes (used line-cleaning solvents, some which may contain
soaps, waxes, resins, and/or debris) can be used as “continued use” solvent,
claiming the materials can be excluded from regulation as solid and hazardous
waste if they are reused for the purpose of cleaning. Respondent determined that the materials can
be sent to Buzzi Unicem USA/Greencastle as part of that facility’s “continued
use” program, which has specifications that all materials it accepts must
meet. However, at the time of the IDEM
inspection, Respondent could not demonstrate that all of the non-thinner line
flushes were exempt from regulation and that they qualified and explicitly met
the required specifications set by Buzzi Unicem USA/Greencastle (“Buzzi”) for
“continued use.” An unknown percentage
of the non-thinner line flushes contain sludge, and the solvents must be
separated from the sludge prior to the shipping of the solvents to Buzzi. Since the materials cannot be used in their
totality for cleaning, the non-thinner line flushes which contain sludge are
not exempt from regulation as a solid waste and are a hazardous waste (F003,
F005, D001).
Respondent has disposed of the sludge left behind as a hazardous waste
(F003, F005, D001).
7. Respondent last notified of Large
Quantity Generator hazardous waste activities on January 10, 2008.
8. 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.
9. During an investigation including an
inspection on March 1, 2012, conducted by a representative of IDEM, the
following violations were found:
a. Pursuant to 40 CFR 261.2(f), a person
who claims that a material is not a solid waste must demonstrate that there is
a known market or disposition for the material, and that the material meets the
terms of the exclusion or exemption. In
doing so, he must provide appropriate documentation to demonstrate that the
material is not a waste, or that it is exempt from regulation.
As noted during the
inspection, Respondent was not able to provide documentation to demonstrate
that its non-thinner line flushes which contained sludge were not wastes, or that they were exempt from regulation. The
non-thinner line flushes which contained sludge could not be used in their
totality for cleaning.
b. 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 a proper hazardous waste determination on
non-thinner line flushes which contained sludge. Respondent had determined that the used
solvent portion was suitable for “continued use,” but the materials were
actually hazardous waste (F003, F005, D001). Additionally, although no part of the
non-thinner line flushes which contained sludge were actually exempt from
regulation, Respondent had also mistakenly determined that the sludge in the
non-thinner flushes was exempt from regulation as a hazardous waste until such
time that the heels left behind in the drums after the liquid portion was
pumped off were removed from their drums and consolidated for transportation
off-site. At that time, the sludge was
determined to be hazardous waste (F003, F005, D001).
c. Pursuant to 40 CFR 262.20, a generator
who transports, or offers for transportation, hazardous waste for off-site
treatment, storage, or disposal, must prepare a manifest. A generator must designate on the manifest
one facility which is permitted to handle the waste described on the manifest. A generator may designate an alternate
facility to handle his waste in the event that an emergency prevents delivery
of the waste to the primary designated facility.
As noted during the
inspection, Respondent allowed the transportation of hazardous waste,
incorrectly identified as “continued use” solvents, to Buzzi
without a manifest.
d. Pursuant to IC 13-30-2-1(12), a person
may not cause or allow the transportation of a hazardous waste without a
manifest if a manifest is required by law.
As noted during the
inspection, Respondent caused or allowed the transportation of a hazardous
waste without a manifest as required by law.
e. 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 containers including but not limited to, sixteen (16) drums
each holding three to four inches of sludge (heels) from non-thinner line
flushes (F003, F005, D001), as well as an unknown number of drums holding
non-thinner line flushes containing sludge (F003, F005, D001), mistakenly
designated for continued use, with accumulation start dates.
f. 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
inspection, Respondent accumulated hazardous waste on-site, without a permit,
and did not label or clearly mark containers, including but not limited to,
sixteen (16) drums each holding three to four inches of sludge (heels) from non-thinner
line flushes (F003, F005, D001), as well as an unknown number of drums holding
non-thinner line flushes containing sludge (F003, F005, D001), mistakenly
designated for continued use, with the words "Hazardous Waste."
g. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must inspect areas where containers are stored, at
least weekly, looking for leaks and deterioration caused by corrosion or other
factors.
As noted during the
inspection, Respondent did not inspect at least weekly areas where containers
including but not limited to, sixteen (16) drums each holding three to four
inches of sludge (heels) from non-thinner line flushes (F003, F005, D001), as
well as an unknown number of drums holding non-thinner line flushes containing
sludge (F003, F005, D001), mistakenly designated for continued use, were
stored.
h. Pursuant to 40 CFR 273.13, a universal
waste handler must contain wastes in containers that are in good condition,
compatible with the waste, closed, and lack evidence of leakage.
As noted during the
inspection, Respondent failed to close two (2) round cardboard barrels holding
universal waste fluorescent lamps in Building 5.
Respondent closed the
containers at the time of the inspection.
10. The parties met on June 15, 2012 to
discuss this matter. At that time, as
well as in an April 19, 2012 letter to IDEM, Respondent stated that it had made
the determination that the non-thinner line flushes which contained sludge
(solids) were hazardous wastes. Respondent
also stated that only three (3) percent of the non-thinner line flushes
contained solids and that those that did contained only a very small
amount. Respondent has also conducted an
evaluation of its non thinner line flush program in order to determine the
sources of solids into the non thinner line flushes. Based on that evaluation, Respondent has
taken steps to prevent the introduction of solids into the non thinner line
flushes. As a secondary step, Respondent
has initiated a policy whereby all containers of candidate non thinner line
flush are evaluated for solids content prior to assignment into the product
stream. If solids are present, the
material is considered a waste material and managed appropriately from that
point forward.
11. 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 and/or rules listed in the findings here and/or
above at issue.
3.
Upon
the Effective Date, Respondent shall continue cessation of use of the
non-thinner line flushes which contain sludge for “continued use,” unless it
can be documented that the materials designated for such explicitly meet the
intent set forth in the rules through EPA and IDEM guidance and the Federal
Register (50 Fed. Reg. 614, 624 (Jan. 4, 1985)). Respondent shall also provide documentation
that the materials meet all specifications set forth by the receiving facility
for reuse at that facility.
4.
Upon
the Effective Date, Respondent shall ensure compliance with 40 CFR 262.20 and
IC 13-30-2-1(12). Specifically,
Respondent shall not allow the transport of hazardous waste without a manifest.
5. 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.
6. Upon the Effective Date, Respondent
shall ensure compliance with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that
each container accumulating hazardous waste is clearly marked with the words
“Hazardous Waste.”
7. Upon the Effective Date, Respondent
shall ensure compliance with 40 CFR 265.174.
Specifically, Respondent shall ensure that it inspects areas where
containers are stored, at least weekly, looking for leaks and deterioration
caused by corrosion or other factors.
8. Upon the Effective Date, Respondent
shall ensure compliance with 40 CFR 273.13.
Specifically, Respondent shall ensure that universal wastes are
contained in containers that are in good condition, compatible with the waste,
closed, and lack evidence of leakage.
9. 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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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
10. Respondent is assessed and agrees to pay a
civil penalty of Fourteen Thousand Dollars ($14,000). 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”.
11. 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. |
12. 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.
13. 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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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
14. 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 13, above.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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
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By:
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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
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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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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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Signed
on October 25, 2012 |
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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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