STATE OF INDIANA

)

SS:

BEFORE THE INDIANA DEPARTMENT OF

 

)

 

 

COUNTY OF MARION

)

 

ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

)

 

OF ENVIRONMENTAL MANAGEMENT,

 

)

 

 

 

)

 

Complainant,

 

)

 

 

 

)

 

 

v.

 

)

Case No. 2018-25870-H and 2018-25871-H

 

 

)

 

Tradebe Treatment & recycling, LLC,

 

)

 

 

 

)

 

Respondent.

 

)

 

 

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 Tradebe Treatment & Recycling, LLC (“Respondent”), which owns and/or operates the facility with United States Environmental Protection Agency (“EPA”) ID No. IND000646943 located at 4343 Kennedy Avenue in East Chicago, Lake County, Indiana (“Site”).

 

3.            IDEM has jurisdiction over the parties and the subject matter of this action.

 

4.            Respondent has a RCRA permit, which authorizes Respondent to conduct storage and treatment activities at this Site.

 

5.            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.

 

6.            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.

 

7.            During an investigation including an inspection on October 3, 2018 conducted by representatives of IDEM, the following violations were found:

 

Case No. 2018-25870-H

 

a.         Pursuant to Permit Condition III.C. and 40 CFR 264.171, if a container holding hazardous waste is not in good condition (e.g., appreciable rusting, apparent structural defects) or if it begins to leak, the Permittee shall transfer the hazardous waste from such container to a container that is in good condition or otherwise manage the waste in compliance with the conditions of this permit.

 

As noted during the October 3, 2018 inspection, the following containers stored in the indicated areas were not in good condition:

 

Unit/Drum #:

Area #:

D003540243

Area 3

D003447163

Area 3

D003057842

Area 3

D003660635

Area 3 Dock

D003536952

Area 4

D003619427

Area 4

D003619428

Area 4

D003660080

Area 7 North Apron

 

b.         Pursuant to Permit Condition III.E.1.c., the Permittee must manage containers as follows:  Containers of 30 gallons or more must be stored so that they can be inspected for leaks and for deterioration caused by corrosion or other factors, without having to move the containers during the inspection and must have adequate aisle space between rows (approximately 2 ½ feet) to facilitate inspection.

 

As noted during the October 3, 2018 inspection, inadequate aisle space was provided in Area 11. Respondent corrected this violation during the inspection.

 

c.         Pursuant to Permit Condition III.E.2.(a), containerized hazardous waste or hazardous secondary materials either being transferred from one permitted unit to another (such as from container storage to tank storage) or being removed from one permitted unit followed by replacement back into that same unit shall remain outside of permitted units only for the minimum time necessary to either transfer the containers to a different storage unit or to remove the containers, perform the activities that required the staging to occur, and return the containers to a permitted storage unit. In no instance shall this time period exceed 12 hours. The containers will be managed in accordance with applicable conditions in Attachment D. Documentation of container movement from a permitted storage area to a staging area followed by placement into a permitted storage area will include the identification of the container, the date of movement, the time the first container was removed from permitted storage, the location of the staging area, and the time the first container was removed from the staging area and placed into permitted storage. This documentation shall be maintained for 30 days.

 

            As noted during the October 3, 2018 inspection, Respondent did not have any documentation indicating time intervals with “staged” containers in Area 8 Staging and Area 10.

 

d.         Pursuant to Permit Condition III.E.(c), the Permittee shall not have more than 756,250 gallons (including 346,060 gallons of liquid wastes plus additional liquids as per the compliance schedule) of containerized hazardous waste and hazardous secondary materials (excluding Tradebe-generated hazardous waste subject to the 90-day generator storage requirements) at the facility at any one time. The maximum capacity of each container storage area is listed in Table D-1, Attachment D. All containers of hazardous waste and hazardous secondary materials at the facility shall be counted towards the permitted capacity, excluding Tradebe's generated waste, exempt scrap metal, and other exempt wastes.

 

            As noted during the October 3, 2018 inspection, Area 7 North Apron is permitted for 580 Maximum Number of Pallets of Containers. The number of counted pallets was 613. Area 4 is permitted for 0 Maximum Number of Pallets of Containers. The number of counted pallets was 108. Area 11 is permitted for 192 Maximum Number of Pallets of Containers. The number of counted pallets was 264.

 

e.         Pursuant to Permit Condition VII.B., for the proposed container storage areas for solids only (Area 4 South Pad - Solids, Area 7a5, Area 7a6 Apron, SDS I Shredder Room, and Area 10), and for solids and liquids (Area 4 South Pad - Liquid and Area 5 North Pad), the Permittee must comply with the following:

 

1.            Fifteen (15) days prior to beginning construction, notify IDEM of the intended construction start date.

 

2.            Within fifteen (15) days of completion of construction of each container storage area and its secondary containment system, as applicable, submit to IDEM:

 

a.            A letter, pursuant to Permit Condition 1.D.11, confirming that the container storage area was constructed in accordance with Attachment D of this Permit.

 

b.            Updated financial assurance for the closure cost of the proposed unit (for all areas except for Area 4 South Pad (both) and Area 5 North Pad).

 

As noted during the October 3, 2018 inspection, for SDS I Shredder Room (Area 8 Staging) and Area 10 (Shredder Pad and Shredder Room), IDEM has not received the construction notification letter as required in B.1. of the Compliance Schedule. Subsequently, IDEM issued a Class 1 Permit Modification that incorporates constructed container storage areas and removes language referencing proposed units that will not be constructed on December 17, 2018.

 

f.          Pursuant to 40 CFR 264.170 through 264.178 and Permit Condition III.E. referencing Attachment D-1a(2), containers of wastes accepted for storage/treatment are managed as follows: M. TRADEBE will manage DOT-approved containers of various sizes, shapes, and capacities. These containers can be arranged in various configurations within the limits of the storage areas. Stored containers may be stacked as specified in this permit, provided the configurations allow for inspection for leaks and provide adequate aisle space between containers/pallets. Several minor containers (e.g. pint, pails, thirty-gallon containers, etc.) may be placed on pallets and stacked as specified below. TRADEBE also manages bulk size containers (e.g.., totes, cubic yard boxes) that are designed to be stacked (i.e. containers typically have structural components that are designed and intended to safely support the container(s)). Please refer to examples in Appendix D-13. For the purpose of this Permit, containers with integrated devices that raise the container off of the floor are considered to be equivalent to a container on a pallet. There are different category conditions for stacking of containers at TRADEBE. The categories of stacking conditions are separated in the following groups: General Container Stacking; Stacking Containers in a Unit; Double-Stacking Units; and Stacking of Individual Containers on a Unit.

 

1.            General Container Stacking Conditions:

 

c.            Containers must be stacked in stable configurations (i.e., container(s) will not readily fall off of the pallet or damage the integrity of the containers or supporting structure). Banding, shrink-wrapping or other devices may be required to stabilize the containers.

 

As noted during the October 3, 2018 inspection, containers were not stacked in stable configurations:

 

Unit/Drum #:

Area #:

D003631813

Area 11

No Drum #'s

Area 3 (Multiple containers)

No Drum #'s

Area 4 South Pad (Multiple containers)

 

g.         Pursuant to 40 CFR 264.170 through 264.178 and Permit Condition III.E. referencing Attachment D-1a(2), M.1.e., containers must be stacked to prevent overhanging of containers that would result in unstable configurations or reduction of the required aisle space.

 

As noted during the October 3, 2018 inspection, drum # D003637964 was overhanging its pallet in Area 4.

 

h.         Pursuant to 40 CFR 264.177(c) and Permit Condition III.I.3. referencing D-1a(2)S, the Permittee shall ensure that it stores incompatible wastes and materials to prevent the generation of extreme heat, pressure, fire, explosions or violent reactions, production of uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health or the environment.

 

4)         The incompatible materials must be separated by either; distance, splash guards, or other barriers to prevent leakage from reaching the containment area of other incompatibles.

 

As noted during the October 3, 2018 inspection, the following incompatible wastes were being stored on the same pallet/cage:

 

Unit/Drum #:

Area #

Incompatibilities:

D003546821

Area 4

Flammable gas

D003546820

Area 4

Oxidizer

 

Case No. 2018-25871-H

 

8.            During an investigation including an inspection on October 18, 2018 conducted by representatives of IDEM, the following violations were found:

 

a.         Pursuant to Permit Condition III.E.2.(a), containerized hazardous waste or hazardous secondary materials either being transferred from one permitted unit to another (such as from container storage to tank storage) or being removed from one permitted unit followed by replacement back into that same unit shall remain outside of permitted units only for the minimum time necessary to either transfer the containers to a different storage unit or to remove the containers, perform the activities that required the staging to occur, and return the containers to a permitted storage unit. In no instance shall this time period exceed 12 hours. The containers will be managed in accordance with applicable conditions in Attachment D. Documentation of container movement from a permitted storage area to a staging area followed by placement into a permitted storage area will include the identification of the container, the date of movement, the time the first container was removed from permitted storage, the location of the staging area, and the time the first container was removed from the staging area and placed into permitted storage. This documentation shall be maintained for 30 days.

 

As noted during the October 18, 2018 inspection, the facility had five (5) drums containing liquid hazardous waste that were staged outside of permitted storage for greater than 12 hours. Additionally, the document provided did not detail the time that the containers were first removed from permitted storage, and the subsequent submitted documentation did not detail the time that the containers were first removed from permitted storage.

 

b.         Pursuant to 40 CFR 264.170 through 264.178 and Permit Condition III.E. referencing Attachment D-1a(2), Attachment D - TABLE D-1, the container storage area maximum design capacity is the following:

 

Container area

Area (ft2)

Drawing Number

Stacking Height of Pallets

Maximum Number of Pallets of Containers

Maximum Number of 55-Gallon Drums By  Available Space

Maximum No. Of 55- Gal. Drums Limited by space, Secondary containment, or facility

Volume Capacity Gallons

Area 7 North Apron

7,925

B-3-97

2

580

2,320

2,320

127,600

 

 

As noted during the October 18, 2018 inspection, the facility had 871 pallets containing cubic yard boxes, totes, drums, pails, and shrink wrapped boxes of various sizes located in Area 7 North Apron. This exceeds the permitted capacity of 580 pallets by 291 pallets.

 

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.            Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 264.171 and Permit Condition III.C., and Permit Attachment D-1a(2)C. Specifically, Respondent shall ensure that a container holding hazardous waste is in good condition and if not, must transfer the hazardous waste from this container to a container that is in good condition or manage the waste in some other way that complies with this part.

 

4.            Upon the Effective Date, Respondent shall ensure compliance with Permit Condition III.E.2.(a). Specifically, Respondent shall in no instance allow containerized hazardous waste to be staged in an area outside a permitted area for more than twelve (12) hours pursuant to the April 28, 2017 permit. Documentation of container movement will include the identification of the container, the date of movement, the time the first container was removed from permitted storage, the location of the staging area, and the time the first container was removed from the staging area and placed into permitted storage. This documentation shall be maintained for 30 days.

 

5.            Upon the Effective Date, Respondent, shall not exceed 756,250 gallons of containerized hazardous waste and hazardous secondary materials at the facility at any one time, and shall not exceed the maximum number of pallets as listed in Permit Attachment D.

 

6.            Upon the Effective Date, Respondent shall stack containers in stable configurations as outlined in Attachment D-1a(2).

 

7.            Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 264.177(c), and Permit Condition III.I.3., and Attachment D-1a(2)M.1.f. Specifically, Respondent shall ensure all materials stored within the stacked containers are compatible.   

 

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

 

Debbie O’Brien, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

9.            Respondent is assessed and agrees to pay a civil penalty of Nine Thousand Seven Hundred Fifty dollars ($9,750). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of One Thousand Nine Hundred Fifty dollars ($1,950). 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 to IDEM of the remaining civil penalty, Respondent shall make a cash payment of  Seven Thousand Eight Hundred dollars ($7,800) to the Indiana State Department of Health-Lead Trust Fund (”ISDH-Lead Trust Fund”) to fund a Supplemental Environmental Project (“SEP”) for activities related to the abatement of lead in qualifying residential properties in Indiana. Respondent shall make such payment to the “ISDH-Lead Trust Fund” within thirty (30) days of the Effective Date of this Agreed Order. Payment to the ISDH-Lead Trust Fund satisfies Respondent’s obligation to undertake a SEP to offset a portion of the civil penalty assessed in this matter.

 

Implementation of this SEP will benefit Indiana communities by reducing the exposure to lead in homes where owners are unable to afford lead hazard abatement work. Lead abatement can improve health outcomes for infants, children, and adults by reducing developmental disorders, attention deficit hyperactivity disorder-related behaviors (ADHD), anemia, hypertension, and kidney and brain damage.

 

The SEP proceeds will be spent on lead abatement for residential homes whose owner/occupants have applied for lead abatement pursuant to the Lead Protection Program and are residing in Indiana.

 

10.         In the event that Respondent does not make its SEP payment within thirty (30) days of the Effective Date of this Agreed Order, the full amount of the civil penalty as stated in this paragraph, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due to IDEM 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 this Agreed Order until the full civil penalty is paid. Such interest shall be payable to the “Environmental Management Special Fund,” and shall be payable to IDEM in the manner specified in Order Paragraph 14.

 

11.         Payment for the SEP is payable by check to the “ISDH-Lead Trust Fund.” The text “SEP-Residential Lead Abatement” and the Case Number of this action shall be included in the memo line of the check. The check shall be mailed to:

 

Cashier’s Office

Indiana State Department of Health

PO Box 7236

Indianapolis, IN 46207

 

Respondent shall provide Complainant with documentation of payment to the ISDH-Lead Trust Fund within one (1) week of such payment.

 

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

Order paragraph # 4, 5 and 7

$ 250 per occurrence

 

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 penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Numbers 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

 

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

 

Linda McClure, 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 on 11/19/19___________

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality