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STATE OF
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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
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25725-H |
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Indiana galvanizing, 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 Indiana Galvanizing, LLC
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. INR 000 138 586, located at 51702
Lovejoy Dr., in Middlebury, Elkhart 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:
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Mr.
Billy VanBrunt |
Northwest
Registered Agent LLC |
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Regional
Asset Recovery Manager |
Registered
Agent for |
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Indiana
Galvanizing, LLC |
Indiana
Galvanizing, LLC |
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1 North
Brentwood Blvd, Suite 800 |
5534 Saint
Joe Rd. |
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St. Louis,
MO 63105 |
Fort Wayne,
IN 46835 |
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Mr. James
Thrush, Plant Manager |
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Indiana
Galvanizing, LLC |
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51702
Lovejoy Dr. |
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Middlebury,
IN 46540 |
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5.
Respondent notified EPA of Small Quantity
Generator activities in March 2015. During
this inspection, Respondent was operating as a Large Quantity Hazardous Waste
Generator (“LQG”).
6.
Respondent’s business is a steel hot-dip zinc
galvanizing operation.
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 an inspection
on October 23, 2018 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 40 CFR 262.11, a person who
generates a solid waste must determine if that waste is hazardous.
As noted during the inspection,
Respondent did not make a proper hazardous waste determination on the waste
pickle liquor oil skimmings (K062), which were a
solid waste generated by Respondent.
Specifically, in 2017 Respondent began mixing the waste pickle liquor
oil skimmings (K062) with a pre-flux absorbent waste
which is non-hazardous. This mixture (K062)
was being shipped as a non-hazardous waste.
Prior to this, Respondent was accumulating the waste pickle liquor oil skimmings in a separate container and manifesting the waste
as a corrosive (D002) hazardous waste.
The facility representative stated that
the waste pickle liquor skimmings will be managed the
way they were prior to 2017, which was in five gallon containers located by
each of the pickle liquor tanks. These
five gallon buckets will then be transferred into a fifty-five (55) gallon
satellite accumulation container. The
drum will be labeled “Hazardous Waste” and dated once the drum is full.
b. Pursuant to 40 CFR 262.20, a generator
who transports, or offers for transportation, hazardous waste for offsite
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 inspection,
Respondent offered hazardous waste for transportation for offsite treatment,
storage, or disposal without preparing a manifest. Specifically, Respondent was shipping a
mixture of waste pickle liquor oil skimmings (K062)
with a non-hazardous pre-flux absorbent waste on a non-hazardous waste manifest
to a permitted treatment, and disposal, facility (“TSDF”).
c. 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 inspection,
Respondent caused or allowed the transportation of a hazardous waste without a
manifest as required by law. Specifically,
Respondent was shipping a mixture of waste pickle liquor oil skimmings (K062) with a non-hazardous pre-flux absorbent
waste on a non-hazardous waste manifest to a permitted treatment, and disposal,
facility (“TSDF”).
d. 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 inspection,
Respondent did not store two (2) containers of hazardous waste closed. Specifically, the containers were one cubic
yard boxes containing waste pickle liquor oil skimmings
(K062) mixed with non-hazardous pre-flux absorbent material. Both of the one cubic yard boxes (K062) were
stored open. One was located in Shipping
& Receiving and one was located by the pickle liquor tanks.
e. 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 inspection,
Respondent accumulated hazardous waste on-site, without a permit, and did not
mark hazardous waste containers with accumulation start dates. Specifically, Respondent had four (4) cubic
yard boxes of waste pickle liquor oil skimmings
(K062) mixed with non-hazardous pre-flux absorbent material not marked with the
start of accumulation date. Three (3)
boxes were located in Shipping & Receiving and one was by the pickle liquor
tanks.
f. 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 inspection,
Respondent accumulated hazardous waste on-site, without a permit, and did not
label or clearly mark hazardous waste containers with the words "Hazardous
Waste". Specifically, Respondent
had four (4) cubic yard boxes of waste pickle liquor oil skimmings
(K062) mixed with non-hazardous pre-flux absorbent material not marked or
labeled clearly with the words “Hazardous Waste”. Three (3) boxes were located in Shipping
& Receiving and one was by the pickle liquor tanks.
g. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.54, the contingency plan must be
reviewed, and immediately amended, if necessary, whenever:
(a) Applicable Regulations are revised;
(b) The plan fails in an emergency;
(c) The facility changes in its design,
construction, operation, maintenance, or other circumstances in a way that
materially increases the potential for fires, explosions, or releases of
hazardous waste constituents, or changes the response necessary in an emergency;
(d) The list of emergency coordinators
changes; or
(e) The list of emergency equipment changes.
As noted during the inspection, the
current contingency plan has an ex-employee as the Primary Emergency Contact
and the Secondary Emergency Contact, Mr. John Monning,
needs to be added to the emergency coordinators list.
h. Pursuant to 40 CFR 262.34(a)(4)
referencing 40 CFR 265.16(a), (b), & (c), facility personnel must complete
a program of classroom instruction or on-the-job training that teaches them to
perform their duties in compliance with the hazardous waste management rules.
Employees must be trained within six months after their date of hire and must
take part in an annual review of the initial training.
As noted during the inspection,
Respondent did not provide employees responsible for hazardous waste management
with annual hazardous waste training.
The last verified annual hazardous waste training was in 2016.
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 the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.11.
Specifically, Respondent shall submit to IDEM how the waste pickle
liquor oil skimmings (K062) will be managed onsite and
the monthly generation rate.
4.
Within thirty (30) days of the Effective Date, Respondent
shall comply with 40 CFR 262.20 and IC 13-30-2-1(12). Respondent shall submit to IDEM a copy of the
hazardous waste manifest and a copy of the one-time land ban notification for
the waste pickle liquor oil skimmings (K062).
5.
Upon the Effective Date, Respondent shall
ensure hazardous waste containers accumulating on-site are clearly labeled or marked
clearly with the words “Hazardous Waste”.
6.
Upon the Effective Date, Respondent shall
ensure hazardous waste containers accumulating on-site are clearly marked with
a date the accumulation begins and that the date on the container is visible
for inspection.
7.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 265.54 and 40 CFR 265.53. Specifically, Respondent shall update the
emergency coordinator changes in the contingency plan. Respondent shall submit to IDEM documentation
validating that the contingency plan revisions have been submitted to all local
police departments, fire departments, hospitals, and State and local emergency
response teams that may be called upon to provide emergency services.
8.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.34(a)(4)
referencing 40 CFR 265.16. Specifically,
Respondent shall conduct annual and/or initial training on facility personnel
whose duties include responsibilities with hazardous waste management. Within ten (10) days of completing the
training Respondent shall submit to IDEM training documentation. This shall include the type of training
received, date of training, the name of the employee, and employee’s job
description and job duties.
9.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Christina Halloran, Enforcement Case
Manager |
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Office of Land Quality |
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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 |
10.
Respondent is assessed and agrees to pay a
civil penalty of Twenty Three Thousand Dollars ($23,000). 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”.
11.
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:
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Paragraph |
Penalty |
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Order paragraph #3 |
$100/week |
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Order paragraph #4 |
$100/week |
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Order paragraph #7 |
$100/week |
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Order paragraph #8 |
$100/week |
12.
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.
13.
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:
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Indiana
Department of Environmental Management |
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Office
of Legal Counsel |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
14.
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 13, above.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
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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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________________________,
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For the
Commissioner: |
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Signed
11/07/2019 By: |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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