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.
2014-22741-H |
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2014-22742-H,
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2015-22898-H |
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TRADEBE
TREATMENT AND RECYCLING, LLC, |
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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 owns and/or operates a
facility with U.S. EPA I.D. number IND 000646943, located at 4343 Kennedy
Avenue in East Chicago, Lake County, Indiana ("Site 1").
3. Respondent last notified IDEM of its
hazardous waste activities at Site 1 on February 26, 2007.
4. Respondent has a RCRA permit, which
authorizes Respondent to conduct storage and treatment activities at this
Site. The permit was
issued on December 8, 2011, and expires on December 30, 2016. Various modifications have
been made to the permit since its approval.
5. Respondent also operates a transfer
facility known as Tradebe Environmental Services, LLC, located at 1125 East 145th
Street in East Chicago, Lake County, Indiana (“Site 2”). The property is owned by
Powerhouse, Inc.
6. Per 329 IAC 3.1-8-4, Respondent
submitted a Transfer Facility Notification letter to IDEM for Site 2 on June
20, 2014.
7. IDEM has jurisdiction over the parties
and the subject matter of this action.
8. Pursuant to IC 13-30-3-3, on January
21, 2015, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:
Tita LaGrimas |
Becky
Jo Morgan, Registered Agent |
Tradebe
Treatment and Recycling, LLC |
Tradebe
Treatment and Recycling, LLC |
4343
Kennedy Avenue |
1370
Deer Creek Dr. |
East
Chicago, IN 46312 |
Dyer,
IN 46311 |
9. 329 Indiana Administrative Code (“IAC”)
3.1 incorporates certain federal hazardous waste management requirements found
in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273,
including those identified below.
10. During an investigation, including an inspection
on October 15, 2014, conducted by a representative of IDEM, the following Count
1 and Count 2 violations were found:
Count
1 -- Case No. 2014-22741-H (Site 1)
a. 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 investigation,
Respondent transported hazardous waste
and/or offered hazardous waste for transportation for off-site treatment,
storage, or disposal without preparing manifests. One (1) roll-off holding contaminated soils,
Box #736, and two (2) containers of lead aprons, destined to be recycled but
mixed into a non-hazardous solids processing roll-off, were sent to a
non-hazardous landfill for disposal on a Non-Hazardous Special Waste Manifests. Additionally, Respondent offered for
transport two (2) roll-offs of hazardous waste (contaminated soils) to Site 2,
its transfer facility, using bills-of-lading rather than hazardous waste
manifests.
b. 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 investigation,
Respondent caused or allowed the transportation of a hazardous waste without a
manifest as required by law. One (1)
roll-off holding contaminated soils, Box #736, and two (2) containers of lead
aprons, destined to be recycled but mixed into a non-hazardous solids
processing roll-off, were sent to a non-hazardous landfill for disposal on a Non-Hazardous
Special Waste Manifests. Additionally,
Respondent allowed the transportation of two (2) roll-offs of hazardous waste
(contaminated soils) to Site 2, its transfer facility, using bills-of-lading
rather than hazardous waste manifests.
c. Pursuant to 40 CFR 262.12(c), a
generator must not offer its hazardous waste to transporters or to treatment,
storage, or disposal facilities that have not received an EPA identification
number.
As noted during the investigation,
Respondent offered its hazardous waste to transporters or to treatment,
storage, or disposal facilities that have not received an EPA identification
number. One (1) roll-off holding
contaminated soils, Box #736, and two (2) containers of lead aprons, destined
to be recycled but mixed into a non-hazardous solids processing roll-off, were
sent to a non-hazardous landfill for disposal.
This facility is for disposal of non-hazardous waste only. Additionally, Respondent offered two (2)
roll-offs of hazardous waste (contaminated soils) to Site 2, its transfer
facility, and stored the waste for greater than ten (10) days. This facility is not a permitted hazardous
waste facility.
d. Pursuant to 40 CFR 268.7, a generator
must determine if a hazardous waste is restricted from land disposal and if the
waste has to be treated before being land disposed. With the initial shipment of waste to each
treatment, storage, or disposal facility, a generator must send a one-time
written notice to each facility receiving the waste and place a copy in the
file.
As noted during the investigation,
Respondent did not determine if hazardous waste was restricted from land
disposal and if the waste had to be treated before
land disposal. Additionally, Respondent
did not send a one-time written notice to the receiving facilities or place a
copy in the file. One (1) roll-off
holding contaminated soils, Box #736, and two (2) containers of lead aprons, destined
to be recycled but mixed into a non-hazardous solids processing roll-off, were
sent to a non-hazardous landfill for disposal without the required Land Ban
Restriction (LDR) forms. Additionally,
Respondent shipped two (2) roll-offs of hazardous waste (contaminated soils) to
Site 2, its transfer facility, without the required LDR form.
Count
2 -- Case No. 2014-22742-H (Site 2)
a. Pursuant to 40 CFR 263.12, a
transporter who stores manifested hazardous waste at a transfer facility for
greater than ten (10) days is subject to regulation under 40 CFR 270, 40 CFR
264, 40 CFR 265, and 40 CFR 268 with respect to the storage of those wastes.
As noted during the investigation,
Respondent accepted waste (which should have been manifested) from off-site
during transportation and stored the hazardous wastes for greater than ten (10)
days at the Site, thereby subjecting the facility to the applicable
requirements of 40 CFR 270, 40 CFR 264, 40 CFR 265, and 40 CFR 268.
b. Pursuant to IC 13-30-2-1(10), a person
may not commence or engage in the operation of a hazardous waste facility
without having first obtained a permit from the department.
As noted during the investigation,
Respondent operated a hazardous waste facility at Site 2 without having first
obtained a permit from the department.
On July 11, 2014, Respondent offered two (2) roll-offs of hazardous
waste from Site 1 to a transporter for delivery to Site 2 where the waste was
stored for a period of greater than ten (10) days.
11. Respondent notified IDEM of these events.
12. Respondent waives the issuance of a
Notice of Violation and the settlement period of sixty (60) days as provided
for by IC 13-30-3-3 for the following violations found in Count 3 below.
Count
3 -- Case No. 2015-22898-H
a. 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 Part 261.
As noted in the March 17, 2015 U.S.
EPA, Region V referral, Respondent accepted and treated hazardous waste
identified or listed in 40 CFR Part 261 at Site 1. Respondent processed four (4) fifty-five (55)
gallon containers with a weight of eight hundred pounds of hazardous waste through
the Solid Waste Processing tanks at Site 1.
The hazardous waste was received from Bodine Environmental Services (acting
on behalf of AZZ Galvanizing) with paperwork (e.g., waste profile and shipping
document) identifying the hazardous waste as “Non-RCRA & Non-Regulated” by
U.S. EPA and U.S. DOT (Filters, zinc ammonium chloride). The Solid Waste Processing tanks are not permitted to treat hazardous waste.
b. Pursuant to Solid Waste Facility Permit
FP 45-47, Condition C6., no hazardous waste as defined in 329 IAC 3.1 shall be
accepted for non-hazardous solidification processing at this facility. The permittee shall assure that all incoming
waste is accompanied by the proper documentation. Any waste labeling which is not consistent
with the documentation must be corrected after
consultation and written or stored electronic clarification from the generator
or be refused and returned to the generator.
The permittee shall maintain the documentation and any clarification
on-site and make it available to IDEM upon request.
As noted in the March 17, 2015 U.S.
EPA, Region V referral, on February 12, 2013, Respondent processed eight
hundred pounds of hazardous waste through the Solid Waste Processing tanks at
Site 1. The hazardous
waste was received from Bodine Environmental Services (acting on behalf of AZZ
Galvanizing) with paperwork identifying the hazardous waste as “Non-RCRA &
Non-Regulated” by U.S. EPA and U.S. DOT (Filters, zinc ammonium chloride). Respondent’s Solid Waste Facility Permit FP
45-47 states that no hazardous waste shall be accepted
for non-hazardous solidification. The
hazardous waste was solidified with sawdust, mixed with other
non-hazardous waste, and transported to a non-hazardous landfill on outbound
manifest number 011059799 JJK.
Respondent states that prior to sending the treated waste off-site on February
18, 2013, it was tested for free liquids via the paint
filter test.
Respondent states that it had not been told that the containers of waste should be
held, nor informed that a sample had been taken to characterize the waste
stream by the controlling parties of the waste stream. Respondent also states that since it had not been apprised by Bodine Environmental Services that
the waste was hazardous, Respondent unknowingly diluted the waste’s TCLP value
to a probability level that made the waste going to River Bend non-hazardous.
13. Respondent notified IDEM of these events.
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 the rules and statutes
listed in the findings here and/or above at issue.
3.
Within thirty (30) days of the Effective
Date, Respondent shall submit to IDEM the actions taken by Respondent to
minimize the possibility of the violations cited above from happening again. The actions shall include, at a minimum, the
establishment of written procedures and a refresher-training program for
employees with duties in the areas at both Site 1 and Site 2 where the above
noted violations occurred. The training
shall provide a review of procedures and practices
established by Respondent to minimize a recurrence and shall include a review
of the violations noted in this enforcement action, a discussion as to what
happened, the importance and reasons for RCRA cradle to grave requirements, as
well as the consequences resulting because of the violations.
4. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by
IDEM, shall be sent to:
Linda McClure, Enforcement Case
Manager |
Office of Land Quality |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
5. Respondent is
assessed and agrees to pay a civil penalty of Fifty-Seven Thousand Dollars
($57,000). 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.”
6. 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:
Failure to comply with Order
Paragraph No. 3 |
$1,000 per week |
7. 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.
8. 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 |
Office
of Legal Counsel |
IGCN,
Room N1307 |
100
North Senate Avenue |
Indianapolis,
Indiana 46204 |
9. 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 5, above.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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: _________________________ |
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
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DAY
OF |
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For the
Commissioner: |
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** Signed
August 17, 2015 ** |
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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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