STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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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 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: |
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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
Land Quality |
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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
THIS |
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DAY
OF |
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20__. |
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For the
Commissioner: |
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Signed
05/20/2013 By:_ |
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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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