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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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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.
2012-20877-H |
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ASPHALT
MATERIALS, 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 Asphalt Materials, Inc.
“Respondent”, which owns and/or operates a facility with United States
Environmental Protection Agency (EPA) ID No. IND006420160,
located at 4902 West 86th Street, Indianapolis, Marion 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 September 18, 2012 via Certified Mail to:
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David
Blackburn, President |
Thomas
L. Mattix, Registered Agent |
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Asphalt
Materials, Inc. |
Asphalt
Materials, Inc. |
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P.O.
Box 68123 |
5400
West 86th Street |
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Indianapolis,
Indiana 46268 |
Indianapolis,
Indiana 46268 |
5. Respondent notified EPA of Large Quantity
Generator (LQG) activities on January 13, 2012.
6. Respondent manufactures formulation
modification, processing, and storage of asphalt binders and emulsion
products. Respondent also provides
asphalt pavement construction and preservation services.
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 a
record review and an inspection on April 3, 2012, conducted by a representative
of IDEM, the following violations were found:
a. Pursuant to 262.11, a person who
generates a solid waste must determine if that waste is hazardous.
As noted during the record review and inspection,
Respondent did not make a proper waste hazardous waste determination on a waste
pile generated from the jet-blasting with water removal of the contents of Tank
T-903. According to the Material Safety Data Sheet (MSDS) for BR-25 MO (which
is a suspension of phosphorus sulfide and mineral oil), when this material is
discarded or disposed, it is a listed hazardous waste under RCRA regulations 40
CFR 261.33(b) with EPA Hazardous Waste Number U189.
b. Pursuant to 40 CFR 270.1(c), a permit
is required for the treatment, storage, and disposal of any hazardous waste as
identified or listed in 40 CFR 261.
As a result of the release of hydrogen
sulfide from the material generated by jet-blasting the contents of Tank-903,
Respondent conducted treatment of U189/D003 in a waste pile, without a permit,
to stop the release of hydrogen sulfide.
c. Pursuant to 40 CFR 264 Subpart L, the
regulations in this Subpart apply to owners and operators of facilities that
store or treat hazardous waste in piles.
As noted during the record review, Respondent
stored U189/D003 listed hazardous waste generated from the jet-blasting removal
of the contents of Tank T-903 in a waste pile in the Used Asphalt Staging
Area. Prior to the placement of the
waste pile material into 2 40 cubic yard roll-off containers, sand and caustic
soda ash were mixed with the pile.
d. Pursuant to 329 IAC 13-4-3(d),
generators must label all used oil containers and aboveground tanks with the
words “Used Oil.”
As noted during the inspection,
Respondent did not label 5 tote containers storing used oil heat transfer
liquids with the words “Used Oil” as required.
e. 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 and
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 record review and
inspection, Respondent failed to properly manage U189/D003 listed hazardous
waste contents generated from the jet blasting of Tank T-903 to minimize a
release to the environment.
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 noxious odor, either alone or in
combination with contaminants from other sources, into the environment in any
form that causes or would cause pollution that violates or would violate 329
IAC 10-4-2.
As noted during the record review and
inspection, Respondent caused and/or allowed contaminants or solid waste into
the environment in violation 329 IAC 10-4-2 when U189/D003 listed hazardous
waste generated from the jet blasting of Tank T-903 was released onto the ground
underneath Tank T-903 (an area approximately 15 feet by 20 feet) and placed in
a waste pile in the Used Asphalt Staging Area (an area approximately 20 feet x
15 feet, bordered by two concrete berms).
Additionally, used oil was released onto the ground next to 5 tote
containers storing oil-like heat transfer liquids, near 2 40 cubic yard
roll-off containers located adjacent to the Used Asphalt Staging Area (an area
approximately 4 feet by 2 feet), and near Spare Tank #1 (an area approximately
30 feet x 30 feet).
g. 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 record review and
inspection, Respondent caused and/or allowed U189/D003 listed hazardous waste
generated from the jet-blasting of Tank T-903 and used oil to be disposed at the
Site in a manner which created a threat to human health or the
environment. Visual evidence of releases
of U189/D003 listed hazardous waste and used oil were
observed on the ground in multiple areas.
9. On April 25, 2012, a copy of Manifest
#1479334-9000 was provided documenting the proper transport and disposal of the
used oil totes and 55-gallon drums of contaminated soil from underneath Tank
T-903, former used oil tote area, the area where 2 40 cubic yard roll-off
containers used to be located; and near Spare Tank #1 at a Twin Bridges RDF
Landfill.
10. Respondent has provided documentation to
IDEM that the material originally placed in two 40 cubic yard roll-off
containers was disposed of at a permitted disposal facility.
11. On July 31, 2012, Respondent provided
photographs showing all visible contamination has been removed underneath Tank
T-903; around the area where used oil tote containers used to be located; near
the area where 2 40 cubic yard roll-box containers used to be located; and near
Spare Tank #1. Additionally, photographs
were provided showing a new impervious concrete floor and walls with a
drive-over fluid dike for containment has been constructed in the Used Asphalt
Staging Area.
12. On July 31, 2012, Respondent informed
IDEM the 6 55-gallon containers, one open plastic tub, and 2 275-gallon tote
containers of rinsate generated from the jet blasting
of the contents of Tank T-903 was transferred to Spare Tank #1.
13. On July 31, 2012, Respondent provided an
updated MSDS Sheet and Emergency Response Plan for BR-25 MO.
14. 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 at issue.
3. Upon the Effective Date, Respondent
shall comply with 40 CFR 262.34(a)(1). Specifically, Respondent immediately discontinue the practice of storing hazardous waste in
piles.
4. Upon the Effective Date, Respondent
shall comply with 329 IAC 13-4-3(d).
Specifically, Respondent shall mark containers holding used oil with the
words “Used Oil.”
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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Jennifer Reno, 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 |
6.
Respondent is assessed and agrees to pay a
civil penalty of eleven thousand nine hundred dollars ($11,900). 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”.
7. 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:
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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 |
8. 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 6, above.
9. 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 he is fully authorized to execute
this Agreed Order and legally bind the party he represents. No change in ownership, corporate, or
partnership status of Respondent shall in any way alter his status or
responsibilities under this Agreed Order.
10. 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.
11. 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.
12. 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 his applicable permits or any
applicable Federal or State law or regulation.
13. 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.
14. 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.
15. 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.
16. Compliance
with this Agreed Order as indicated by a Resolution of Case letter resolves all
issues and allegations that were, or could have been, raised as a result of the
investigation, including record review and inspection on April 3, 2012,
conducted by representatives of IDEM.
17. 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:
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By: _________________________ |
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
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
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For the
Commissioner: |
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Signed on
2/19/13____________ |
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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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