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. 2019-26524-H
					)
Patrick Aluminum, Inc. d.b.a. Yellow Dog,					)
					)
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 Indiana Code (“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 IC 13-13-1-1.

2. Respondent is Patrick Aluminum, Inc. d.b.a. Yellow Dog (“Respondent”) which owns and operates the facility with United States Environmental Protection Agency (“EPA”) ID No. INR000130153, located at 2730 Almac Court, in Elkhart, 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, on January 22, 2020, IDEM issued a Notice of Violation (“NOV”) via UPS to:

Patrick Aluminum, Inc.

d.b.a. Yellow Dog

Dominick l. Baione, President

5020 Lincolnway East

Mishawaka, Indiana 46544

Patrick Aluminum, Inc.

d.b.a. Yellow Dog

Laura L. Ezzell, Registered Agent

230 North Main Street, Suite 2

Elkhart, Indiana 46516

5. Respondent notified EPA of Large Quantity Generator activities on February 14, 2019.

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 September 5, 2019 conducted by an IDEM representative, 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 a hazardous waste.

As noted during the inspection, Respondent did not make a hazardous waste determination on 4,400 gallons of Brite Dip rinse waste, a solid waste generated by Respondent. The Brite Dip rinse waste is being stored in a hazardous waste tank.

b. Pursuant to 40 CFR 262.34(b) a generator who accumulates hazardous waste for more than 90 days is an operator of a storage facility and is subject to the requirements of 40 CFR parts 264 and 265 and the permit requirements of 40 CFR part 270 unless he has been granted an extension to the 90 day period.

As noted during the inspection, Respondent stored approximately 4,000 gallons of D002 and D007 hazardous waste identified or listed in 40 CFR Part 261 without a permit. Specifically, in 2017 and 2018 combined, Respondent generated 5,150 gallons of Brite Dip rinse waste (D002 and D007) and stored said waste for greater than 90 days.

c. 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.

d. 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. All facilities which conduct an activity requiring a hazardous waste permit are subject to Resource Conservation and Recovery Act (RCRA) corrective action.

As noted during the inspection, Respondent operated a hazardous waste facility without having first obtained a permit from the department.

Respondent obtained an EPA Identification number.

e. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a), (b), (c), (d)(1-4), 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 months after their date of hire and must take part in an annual review of the initial training. Certain hazardous waste training related documents and records including job title, job descriptions, a description of the type and amount of required training, and completion documents with respect to the hazardous waste management training must be maintained on site.

As noted during the inspection, Respondent was operating as a Large Quantity Generator (LQG) and had not conducted RCRA training within the last year.

f. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.51, a LQG generator operator must have a contingency plan for the facility.

As noted during the inspection, Respondent did not have a contingency plan.

g. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.192, a generator with a new tank system must have a written assessment reviewed and certified by a qualified Professional Engineer in accordance with 40 CFR 270.11(d) attesting that the system has sufficient structural integrity.

As noted during the inspection, Respondent’s 4,500 gallon tank storing Brite Dip contaminated rinse water had not had an integrity assessment conducted.

h. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.193, 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. Waste and liquids must be removed within 24 hours. The system must be free of cracks or gaps.

As noted during the inspection, Respondents 4,500 gallon tank storing Brite Dip contaminated rinse water did not have secondary containment.

i. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.194, 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 inspection, Respondents 4,500 gallon tank storing Brite Dip contaminated rinse water did not have overfill protection.

j. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.195, 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 inspection, Respondent’s 4,500 gallon tank storing Brite Dip contaminated rinse water was not being daily inspected.

8. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 and rules listed in the findings of fact above.

3. Within thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR 262.11. Specifically, Respondent shall perform a proper waste determination on the Brite Dip rinse hazardous waste being stored in the 4,500 gallon hazardous waste tank. The contents shall be analyzed for both pH and TCLP chrome. Respondent shall submit the Brite Dip hazardous waste determination to IDEM for review.

4. Upon the Effective Date, Respondent shall comply with IC 13-30-2-1(10), 40 CFR 262.34(b) and 40 CFR 270.1(c). Specifically, Respondent shall not exceed the permitted accumulation time limit for hazardous waste storage.

5. Within ninety (90) days of the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(4) and/or 40 CFR 265.51, and 40 CFR 265.16(a), (b), and (c). Specifically, Respondent shall:

a. Develop a contingency plan.

b. Perform employee RCRA training

6. Within 120 days of the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(1)(ii) and 40 CFR 265.192, 40 CFR 265.193, 40 CFR 265.194, and 40 CFR 265.195. Specifically, Respondent shall perform the following actions on the 4,500 gallon tank used to store the hazardous waste rinse water contaminated with Brite Dip:

a. Integrity assessment testing

b. Install secondary containment

c. Install overfill protection

d. Perform and record daily inspections

7. All submittals required by this Agreed Order, unless IDEM notifies Respondent otherwise in writing, 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

8. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Thirteen Thousand Eight Hundred Dollars ($13,800). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.” Please add the case number to the check.

9. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay stipulated penalties in the following amounts:

Paragraphs	Stipulated Penalty
3	$100.00 per week
5	$100.00 per week
6	$100.00 per week

10. Stipulated penalties shall be due and payable no later than the thirtieth day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the thirtieth 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 a 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.

11. 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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

12. 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 11 above.

13. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

14. This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

15. No change in ownership, corporate, or partnership status of Respondent shall in any way alter Respondent’s status or responsibilities under this Agreed Order.

16. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of 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. 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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

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 violations specified in the NOV.

21. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. 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.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management

By: _________________________				By: _________________________
	Linda L. McClure, Chief
	Land 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 4/9/2020
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality