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. 2012-20886-H

 

 

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VOESTALPINE ROTEC INCORPORATED,

 

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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 Voestalpine Rotec Incorporated (“Respondent”), which owns/operates the company located at 3709 US Highway 52 South, in Lafayette, Tippecanoe 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) via Certified Mail to:

 

Mr. Andrew Ball, President and Registered Agent

Voestalpine Rotec Incorporated

3709 US 52 South

Lafayette, IN 47905

 

5.            Respondent processes a variety of steel tubes to meet customer specifications.

 

6.            Respondent is a used oil generator.

 

7.            Respondent submitted responses to the Notice of Violation via email on June 26, September 21, and October 8, 2012.

 

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 May 21, 2012 conducted by a representative of IDEM, the following violations were found:

           

a.            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 any form that causes or would cause pollution that violates or would violate 329 IAC 13-4-3, a rule adopted by the board under the environmental management laws.

 

As noted during the inspection, Respondent allowed used oil to be released in many areas throughout the facility.

 

The following releases of used oil were observed during the inspection:

 

During the October 5, 2012 Settlement Conference, it was clarified that water based coolant used by Respondent is regulated as used oil.

 

1)            outside on the east side pavement, gravel and soil,

 

Respondent contends that their oils have not been exposed to the environment; the rocks have simply collected eleven (11) years of filth and debris from high truck traffic.  However, Respondent agrees to remove the rocks and trench six (6) inches down and back to exposed area.  The rocks and soil will be disposed at a Permitted Solid Waste Landfill.

 

Respondent contends that the east side pavement is contaminated with used oil but as stated in the paragraph above it is an accumulation of filth, dirt, and water based coolant, etc primarily from where the turnings Skips were stored under the awning outside Bay 2.  Respondent agrees to clean the pavement with the understanding that it is unlikely to be restored to a “new” look.  Trial cleanup photos were sent to IDEM.

 

2)            hoppers (metal shavings and scrap) on east and south sides of building leaking used oil, Respondent agrees to clean this area and then epoxy/or urethane the concrete in the Skip area under the awning.

 

3)            used oil on the floor by the 1000 gallon used oil tank located in the south building on the east side, Respondent agrees this area is messy but the tank and containment are in good condition; not leaking; and the fluids did not come from inside of the tank and containment out; but rather was spilled by an employee.

 

Respondent states it will relocate this waste station to a more central location and maintain a cleaner area. The relocation will help monitor the cleanliness of the unit.  Presently, this area is nestled back behind machines and between raw materials so it has extremely low visibility; making a mess easier to hide rather than cleanup.

 

4)            used oil tote and 55 gallon hopper leaking used oil onto the floor in South building,  Respondent has removed the entire compressor and corresponding tote; it is no longer necessary.

 

Respondent pointed out the 55 gallon hoppers are not designed or used for storing fluids; they are designed and used for capturing process scrap (kerf).  Some residual water based coolant travels with the kerf into these Skips.  Respondent contends that they drain the hopper so that as they dispose of the kerf they are not also disposing with any excess water based coolant.  Typically a kerf load is emptied at least once per shift; while the five (5) gallon buckets only need to be emptied at worst one per shift but typically once or twice per day so it is extremely unlikely that there would ever be any substantial fluid contained in one of these Skips.  However, Respondent acknowledges that they are containers and fluid does reside in them.

 

Respondent agrees to put the right size of buckets that fit under the ball-valve to capture run-off.  This will allow Respondent to perform their process as planned already; but eliminate any dripping to the floor created from buckets that cannot capture the fluid properly as it empties.

 

5)            used oil on floor next to the cutting and deburring machine, and Respondent acknowledges that there was accumulation of fluid; but no visible leaking or rusting.

 

Respondent agrees to provide refresher training regarding housekeeping and response to releases to Operators and Maintenance Teams.

 

6)            other areas throughout the facility.

 

b.         Pursuant to 329 IAC 13-4-3(e), upon detection of a release of used oil to the environment not subject to the requirements of 40 CFR 280 Subpart F, which has occurred after the effective date of this rule, a generator must perform the following clean-up steps:

 

1)            Stop the release.

2)            Contain the released used oil.

3)            Clean up and manage properly the released used oil and other materials.

4)            Communicate a spill report in accordance with 327 IAC 2-6.1.

5)            If necessary to prevent future releases, repair or replace any leaking used oil storage containers or tanks prior to returning them to service.

 

As noted during the inspection, Respondent had numerous areas throughout the facility where used oil had been released.  Specifically, hoppers located outside on the east and south side of the building containing metal shavings and scrap had visible releases of used oil, a thousand (1000) gallon tank, a fifty (55) gallon hopper and a tote located in the South building had observed used oil releases, and used oil releases were also observed from the cutting and deburring machine.  See comments within Item 9.a. 1-6.

 

c.            Pursuant to 329 IAC 13-4-3(c), containers and aboveground tanks used to store used oil at generator facilities must:

1)            be in good condition with no severe rusting, apparent structural defects, or deterioration; and

2)            not be leaking (no visible leaks).

 

As noted during the inspection, Respondent had numerous areas throughout the facility where used oil had been released.  See comments within Item 9.a. 1-6.

 

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 statutes and rules listed in the findings here and above at issue.

 

3.            Within thirty (30) days of the Effective Date, Respondent shall comply with IC 13-30-2-1(1) and 329 IAC 13-4-3(e). Specifically, Respondent shall clean up the used oil releases by doing the following:

 

a.            Respondent shall remove the contaminated gravel and soil, located outside on the east side of facility, six (6) inches beyond visible contamination.  Prior to removing the contaminated gravel and soil, Respondent shall take photographs of the visible contaminated areas prior to removing the gravel and soil and after the soil is removed to verify that all visible contamination has been removed.

 

b.            Respondent shall remove all visible used oil contamination on the parameter pavements outside and around the hoppers on the east and south sides of the building.  Respondent shall mechanically clean the concrete area by scraping, sweeping, or other method, to remove all physical contamination and properly dispose.  Ensure that care is taken to prevent migration of cleaning liquids from this area.  Collect and dispose of all residues and rinsates properly.

 

c.            Respondent shall clean the areas within the facility of used oil releases. This includes the following areas:

 

1)            used oil on the floor by the 1000 gallon used oil tank located in the North building on the east side,

2)            used oil tote and 55 gallon hopper leaking used oil onto the floor in South building

3)         used oil on floor next to the cutting and deburring machine and

4)         other areas throughout the facility.

 

4.            Within forty five (45) days of the Effective Date, Respondent shall submit the photographs and proper disposal documentation including the volume of gravel and soil and the disposal facility.

 

5.            Within forty five (45) days of the Effective Date, Respondent shall submit a plan on how future releases will be addressed.  The plan shall include that releases/spills will be responded to within 24 hours.  The plan shall also include preventive measures that will be taken to prevent future used oil releases/spills outside where rolloffs are stored, area near the used oil tank and other containers used to accumulate used oil and preventive maintenance procedures to address releases from process equipment.

           

6.            Within thirty (30) days of the Effective Date, Respondent shall comply with 329 IAC 13-4-3(c).  Specifically, Respondent shall ensure tanks and containers storing used oil are in good condition with no severe rusting, apparent structural defects, or deterioration and not be leaking (no visible leaks).   Specifically, the rolloffs used to hold metal shavings shall be structurally sound with no visible leaks.

 

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

 

Christina Halloran, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

8.            Respondent is assessed and agrees to pay a civil penalty of Seven Thousand Dollars ($7,000).  Respondent shall pay a portion of this penalty in the amount of One Thousand Five Hundred and Seventy Four Dollars ($1,574.00).  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 of the remaining civil penalty, Respondent shall perform and complete Three Supplemental Environmental Projects (“SEP”).  Respondent estimates that the SEPs will totally cost Ten Thousand Eight Hundred and Fifty-Two Dollars (10,852.00).

 

9.            Within fifteen (15) days of completing each SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to each SEP.  In the event that the total cost of the SEPs is less than Ten Thousand Eight Hundred and Fifty Two Dollars ($10,852), Respondent shall pay Fifty Percent (50%) of the difference between the proposed cost of the SEPs and the actual cost of the SEPs.

 

10.         The types of the Supplemental Environmental Projects are Pollution Reduction, waste water discharge reduction, and Comprehensive Environmental Training.

 

11.         In the event that the Respondent does not complete the SEPs by October 31, 2013, the full amount of the civil penalty as stated in paragraph 8 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent as already paid, will be due 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 the Agreed Order until the full civil penalty is paid.

 

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

3

$200 per week

4

$200 per week

5

$200 per week

 

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 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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

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 their 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 their obligation to comply with the requirements of their 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 the 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:  _________________________

 

Nancy Johnston, 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 05/20/2013 By:_

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality