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. 2018-25601-H

 

 

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Lehigh Cement Company, 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 is Lehigh Cement Company, LLC (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (“EPA”) ID No. IND 005 081 542 located at 3084 W CR 225 S, in Logansport, Cass 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”) to:

 

Jonathan Morrish, President

Corporation Service Company, LLC

Lehigh Cement Company, LLC

Registered Agent

300 E. John Carpenter Freeway

Lehigh Cement Company, LLC

Irving, TX 75062

135 North Pennsylvania St., Suite 1610

 

Indianapolis, IN 46204

 

5.               Respondent notified as a permitted treatment, storage, and disposal facility (“TSDF”), large quantity hazardous waste generator, used oil generator and a universal waste handler.  Respondent is permitted to store hazardous waste in containers and tanks.  The permit Issuance Date is August 29, 2014 and the permit Expiration Date is September 14, 2019.

 

6.               Respondent manufactures Portland and masonry wet cement in two rotary cement kilns.

 

7.               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.

 

8.               During an investigation including inspections on July 19 and August 14, 2018 conducted by a representative of IDEM, the following violations were found:

 

a.       Pursuant to Permit Condition IV.G. Attachment D. and 40 CFR 264.193, all new and existing tank systems must have secondary containment systems operated to prevent the migration of waste or liquid out of the system and be capable of detecting and collecting releases and accumulated liquid. The system must be lined with or constructed of materials compatible with the waste and provided with a leak detection system that will detect a release within 24 hours.

 

As noted during the July and August inspections, Respondent did not provide secondary containment that meets 40 CFR 264.193.  Specifically, Tank Farm Storage Area’s (Tanks 1-10) secondary containment had cracks, gaps, peeling, spalls, exposed concrete and deterioration. A valve in the Tank Farm Storage Area secondary containment area was observed open thereby allowing the potential of waste or liquids to migrate out of the secondary containment.  Liquids were also observed under Tank #9 and on August 14, 2018, rainwater was observed in the Railcar Staging Area’s secondary containment.  Neither the liquids nor rainwater were removed within 24 hours.

 

b.               Pursuant to Permit Condition IV.G., Attachment D. and 40 CFR 264.193(c)(4), secondary containment must be at a minimum sloped or otherwise designed or operated to drain and remove liquids resulting from leaks, spills, or precipitation. Spilled or leaked waste and accumulated precipitation must be removed from the secondary containment system within 24 hours, or in as timely manner as is possible to prevent harm to human health and the environment.

 

As noted during the July and August inspections, liquids observed under Tank #9 were not removed within 24 hours and on August 14, 2018, rainwater was observed in the Railcar Staging Area’s secondary containment.  According to the Railcar Staging Area’s daily inspection reports, the precipitation had not been removed within twenty-four hours.

 

c.               Pursuant to 40 CFR 264.193(e)(iii), a secondary containment system must be free of cracks or gaps.

 

As noted during the July and August inspections, the Tank Farm Storage Area’s (Tanks 1-10) secondary containment had cracks, gaps, peeling, exposed concrete and deterioration.

 

d.               Pursuant to 40 CFR 264.194 and Permit Condition IV.D, a generator must use appropriate controls and practices, such as level sensing devices, high level alarms, and feed cut-offs, to prevent spills and overflows from tank or secondary containment systems.

 

As noted during the July and August inspections, there was evidence of tank overflow observed on the Level Control Tank and Hydrapulper Tank at the Bulk Solids Facility.  Respondent’s personnel indicated this release occurs when the pressure relief valve opens.

 

e.               Pursuant to 40 CFR 264.195, Permit Condition II.D and Permit Attachment D.4.6.13 and 4.2.9.1, the facility must inspect, at least daily, the overfill/spill control equipment, above ground portions of the tank, data gathered from monitoring and leak detection equipment, and the construction materials and areas surrounding the tank system. The inspections must be documented.

 

As noted during the July and August inspections, Respondent was not adequately performing daily inspections of the secondary containment in the Tank Farm Storage Area (Tanks 1-10). Cracks, gaps, peeling, spalls, concrete deterioration and standing water were observed and not being noted on daily inspection reports.

 

f.                Pursuant to 40 CFR 264 Subpart J and Permit Condition IV, the requirements of Subpart J for existing tank systems apply to owners and operators of facilities that use tank systems for storing or treating hazardous waste.

 

As noted during the July and August inspections, Respondent’s conveyance system of sumps and connected piping, troughs/trenches used to transport hazardous waste from the Bulk Solids Facility’s secondary containment to the Tank Storage Area’s secondary containment is governed by the same regulations as tanks and therefore must comply with the requirements of 40 CFR part 264 Subpart J and Permit Condition IV.  Respondent failed to comply with 40 CFR 264 Subpart J and Permit Condition IV.

 

g.       Pursuant to 40 CFR 264.1083 and Permit Condition V. a tank or container for which all hazardous waste entering the unit has an average VO concentration of 500 ppmw or greater is subject to air emission standards.

 

Respondent failed to determine if waste being conveyed from the Bulk Solids Facility’s secondary containment to the Tank Storage Area’s secondary containment has an average VO concentration of 500 ppmw or greater.

 

h.               Pursuant to 329 IAC 3.1-9, 40 CFR 264.16, Permit Condition II.E and Permit Attachments H and F.6.3.2, each person responsible for the inspection of an individual operation learns to recognize a potential hazard, the procedures in place to take preventative measures, and the appropriate corrective actions that should be taken.

 

As noted during the July and August inspections, according to Respondent’s representatives, Hazardous Waste Technicians, performing daily inspections of the secondary containment in the Tank Farm Storage Area (Tanks 1-10) were not recognizing potential hazards.  Specifically, signs of deterioration, cracks, spalls, peeling and liquids in the secondary containment were being overlooked.

 

i.                 Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.173(a), a container holding hazardous waste must always be closed during storage, except when it is necessary to add or remove waste.

 

As noted during the August 14, 2018 inspection, Respondent had a galvanized horse trough containing approximately 125 gallons of hazardous waste near Tank # 5 in the secondary containment area stored open.

 

j.                 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 August 14, 2018 inspection, Respondent accumulated hazardous waste on-site, without a permit, and did not mark hazardous waste containers with accumulation start dates. Specifically, one galvanized horse trough containing approximately 125 gallons of hazardous waste near Tank # 5 in the secondary containment area without a start of accumulation date.

 

k.               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 August 14, 2018 inspection, Respondent accumulated hazardous waste on-site, without a permit, and did not label or clearly mark hazardous waste with the words "Hazardous Waste".  Specifically, one galvanized horse trough containing approximately 125 gallons of hazardous waste near Tank # 5 in the secondary containment area was not labeled or marked clearly with the words “Hazardous Waste”.

 

9.               Respondent submitted a draft “Partial Closure Procedure Underground Piping Bulk Management System Hydrapulper & Level Control Area” via email on December 7, 2018.

 

10.     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, rules, and/or permit conditions listed in the findings above.

 

3.               Within thirty (30) days of the Effective Date, Respondent shall repair the cracks, gaps peeling and exposed concrete and deterioration in the Tank Farm Area’s secondary containment.  Respondent shall submit to IDEM within ten (10) days after completing the repairs the steps that were taken to make the repairs and photographs of the areas before and after repairs.  Respondent shall ensure the corrective actions taken are documented on the inspection log forms.

 

4.               Within thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR 40 CFR 264.194(b).  Specifically, Respondent shall submit to IDEM documentation of what appropriate controls and practices, such as level sensing devices, high level alarms and feed cut-offs, have been put in place to prevent spills and overflows from the tank or secondary containment systems on the Level Control Tank and Hydrapulper Tank at the Bulk Solids Facility.

 

5.               Within thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR 264.16, Permit Condition II.E and Permit Attachments F & H.  Specifically, Respondent shall train all employees, including Hazardous Waste Technicians, who are responsible for inspecting the Tank Farm Storage Area, in accordance with 40 CFR 264.195 and Attachment F.  The training shall emphasize recognizing potential hazards, the procedures in place to take preventive measures, and the appropriate corrective actions that should be taken when deficiencies are observed.  Specifically, employees should recognize signs of deterioration, cracks, spalls, peeling and liquids within the secondary containment.

 

6.               Respondent shall submit to IDEM training documentation within fifteen (15) days of completing the training required in Order 5 above. The documentation shall include the instructors name, date of training, name and position of the employees who received the training and a description of the training.

 

7.               Upon the Effective Date of the Agreed Order, Respondent shall comply with Permit condition IV.G, Attachment D., and 40 CFR 264.193(c)(4).  Specifically, Respondent shall ensure in the event of a spilled or leaked waste and accumulated precipitation from a tank system or from a secondary containment system, that the waste from the system will be removed within 24 hours of detection of the leak or spill.  If the Respondent finds that it will be impossible to meet the time period, Respondent shall notify the Commissioner and demonstrate that a longer time period is required.  The inspection logs shall identify the problem and the corrective action taken.

 

8.               Within thirty (30) days of the Effective date of the Agreed Order, Respondent shall conduct a partial closure on the ancillary equipment being used to convey hazardous waste from the Bulk’s Solids Facility’s secondary equipment to the Tank Storage Area’s secondary equipment according to Permit Condition IV.J. and Attachment I of the RCRA Permit.

 

9.               Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM the procedures implemented on the management of the hazardous waste wash waters generated from pressure washing the Bulk’s Solids Facility secondary containment in the future.

 

10.           Upon the Effective Date of Agreed Order, Respondent shall comply with 40 CFR referencing 40 CFR 265.173(a), 40 CFR 262.34(a)(2), and 40 CFR 262.34(a)(3).  Specifically, the trough used to accumulate hazardous waste from Tank 5 shall be stored closed when not adding or removing waste, labeled or marked with the words “Hazardous Waste” and marked with the start of accumulation date.

 

11.           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

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

12.           Respondent is assessed and agrees to pay a civil penalty of Twenty Nine Thousand and Six Hundred Dollars ($29,600).  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”.

 

13.           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

Order paragraph # 3

$100/week

Order paragraph # 4

$100/week

Order paragraph # 5

$100/week

Order paragraph # 8

$100/week

Order paragraph # 9

$100/week

 

14.           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.

 

15.           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, IN 46204

 

16.           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, 15 above.

 

17.           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.

 

18.           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.

 

19.           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.

 

20.           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.

 

21.           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.

 

22.           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.

 

23.           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 EPA or any other agency or entity.

 

24.           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 February 8, 2019 By:

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality