STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

ESSROC CEMENT CORPORATION,

Respondent.

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Case No. 2007-17423-H
                2008-17565-H
                2008-17919-H



 

 

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 Essroc Cement Corporation (“Respondent”), which owns and/or operates the facility with United States Environmental Protection Agency (EPA) ID No. IND005081542 located at 3084 West County Road 225 South, 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, on January 2, 2008, IDEM issued a Notice of Violation via Certified Mail to:

 

Mr. George Gregory, President

CT Corporation System, Registered Agent

Essroc Cement Corporation

Essroc Cement Corporation

3241 Bath Pike

251 East Ohio Street, Suite 1100

Nazareth, PA 18064

Indianapolis, Indiana 46204

 

5.         Respondent waives issuance of a Notice of Violation and to the settlement period of sixty (60) days for violations discovered during the November 30, 2007 and June 11, 2008 IDEM inspection, as provided for by IC 13-30-3-3.

 

6.         Respondent notified EPA of Large Quantity Generator activities on February 29, 1996 and was issued a Hazardous Waste Management Permit on September 30, 2003.

 

7.         Respondent is a Portland cement manufacturer that accepts hazardous waste and used oil to burn for energy recovery.

 

8.         329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270 and Part 273, including those identified below.

 

9.         During an investigation, including an inspection on September 28, 2007, November 30, 2007, and March 11, 2008, conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to Permit Condition VI.G.1 of the Hazardous Waste Management Permit issued to Respondent on September 30, 2003, in order to prevent the release of hazardous waste or hazardous constituents to the environment, secondary containment that meets 40 CFR 264.193 shall be provided.  Respondent did not provide secondary containment that meets 40 CFR 264.193.  Specifically, cracks were observed in a secondary containment system at the rail offloading area where a pump malfunction had recently occurred.

 

b.         Pursuant to Permit Condition VI.G.2 of the Hazardous Waste Management Permit issued to Respondent on September 30, 2003, in the event of a leak or spill from a tank system, from a secondary containment system, or if a system becomes unfit for continued use, the Permittee shall remove the system from service immediately and complete actions outlined in Permit Condition VI.G.2(a) through (e).  Respondent did not immediately remove the system, which had become unfit for continued use, from service.  This secondary containment system, located in the rail off-loading area, contained a pump which malfunctioned and caused a release of hazardous waste into the secondary containment system.

 

c.         Pursuant to 40 CFR 264.193(b)(1), secondary containment systems must be designed, installed, and operated to prevent any migration of wastes or accumulated liquid out of the system to the soil, ground water, or surface water at any time during the use of the tank system.  Respondent operated a secondary containment system at the rail offloading area with the potential to allow migration of wastes or accumulated liquid out of the system to the soil, groundwater, or surface water during the use of the tank system.

 

d.         Pursuant to 40 CFR 264.193(e)(iii), a secondary containment system must be free of cracks or gaps.  Respondent did not provide secondary containment that meets 40 CFR 264.193(e)(iii).  Specifically, cracks were observed in a secondary containment system at the rail offloading area where a pump malfunction had recently occurred.

 

e.         Pursuant to 40 CFR 264.31, facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of a hazardous waste or hazardous waste constituents to the air, soil, or surface water, which could threaten human health or the environment.  Respondent failed to properly manage a rail off-loading secondary containment system to minimize a release to the environment.

 

10.       During an investigation, including an inspection on September 28, 2007, conducted by a representative of IDEM, the following violation was found:

 

a.         Pursuant to 40 CFR 273.14(e) and 329 IAC 3.1-16-2(a)(4), each lamp or a container or package in which such lamps are contained must be labeled or marked clearly with one of the following phrases: “Universal Waste – Lamp(s),” or “Waste Lamp(s),” or “Used Lamp(s),” or other words that adequately identify the universal waste lamps. Respondent failed to label two (2) containers of universal waste lamps with the required words.

Respondent properly labeled the two (2) universal waste lamp containers at the time of the inspection.

 

11.       During an investigation, including an inspection on June 11, 2008, conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to Permit Condition VI.G.1 of the Hazardous Waste Management Permit issued to Respondent on September 30, 2003, in order to prevent the release of hazardous waste or hazardous constituents to the environment, secondary containment that meets 40 CFR 264.193 shall be provided.  Respondent did not provide secondary containment that meets 40 CFR 264.193.  Specifically, cracks were observed in the rail off-loading secondary containment system and areas of missing coating and cracks were observed at the hazardous waste tank storage secondary containment system.

 

b.         Pursuant to Permit Condition VI.G.2 of the Hazardous Waste Management Permit issued to Respondent on September 30, 2003, in the event of a leak or spill from a tank system, from a secondary containment system, or if a system becomes unfit for continued use, the Permittee shall remove the system from service immediately and complete actions outlined in Permit Condition VI.G.2(a) through (e).  Respondent did not immediately remove the system, which had become unfit for continued use, from service.  Specifically, cracks were observed in the rail off-loading secondary containment system and areas of missing coating and cracks were observed at the hazardous waste tank storage secondary containment system.

 

c.         Pursuant to 40 CFR 264.193(b)(1), secondary containment systems must be designed, installed, and operated to prevent any migration of wastes or accumulated liquid out of the system to the soil, ground water, or surface water at any time during the use of the tank system.  Respondent operated a secondary containment system at the hazardous waste tank storage area and rail off-loading secondary containment system with the potential to allow migration of wastes or accumulated liquid out of the system to the soil, groundwater, or surface water during the use of the tank system.

 

d.         Pursuant to 40 CFR 264.193(e)(iii), a secondary containment system must be free of cracks or gaps.  Respondent did not provide secondary containment that meets 40 CFR 264.193(e)(iii).  Specifically, cracks were observed in the rail off-loading secondary containment system and areas of missing coating and cracks were observed at the hazardous waste tank storage secondary containment system.

 

e.         Pursuant to 40 CFR 264.31, facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of a hazardous waste or hazardous waste constituents to the air, soil, or surface water, which could threaten human health or the environment.  Respondent failed to properly manage the hazardous waste tank storage secondary containment system and rail off-loading secondary containment system, to minimize a release to the environment.

 

f.          Pursuant to Permit Condition II.E of the Hazardous Waste Management Permit issued to Respondent on September 30, 2003, the owner or operator will conduct regular inspections of the facility for equipment malfunctions, structural deterioration, operator errors, and discharges that could cause or lead to the release of hazardous waste constituents, and/or adversely affect the environment, or threaten human health.  Respondent failed to note the cracks in the rail off-loading secondary containment system in the daily and/or weekly inspection logs.

 

12.       Respondent completed both required and proactive maintenance work on the secondary containment system on or before October 8, 2008.

 

13.       This Agreed Order resolves the NOV issued on January 2, 2008 and the violations noted in the inspection reports generated by IDEM on September 28, 2007, November 30, 2007, March 11, 2008 and June 11, 2008.

 

14.       In recognition of the settlement reached, Respondents 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 all rules and statutes cited above at issue.

 

3.                  Upon the Effective Date of this Agreed Order, Respondent shall ensure that it complies with Permit Condition VI.G.2 whenever there is a leak or spill from a hazardous waste tank system or secondary containment.

 

4.                  Upon the Effective Date of this Agreed Order, Respondent shall ensure that it complies with Permit Condition II.E.  Specifically, Respondent shall identify potential hazards with the secondary containment systems and take preventative and/or corrective measures as required.

 

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

 

Linda L. McClure, Enforcement Case Manager

Office of Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

6.                  Respondent is assessed a civil penalty of Seven Thousand and Five Hundred Dollars ($7,500).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101.  The interest shall continue to accrue until the civil penalty is paid in full.

 

7.                  Civil 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

8.                  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.

 

9.                  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.

 

10.             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.

 

11.             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.

 

12.             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.

 

13.             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 this Agreed Order.

 

14.             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.

 

15.             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 L. Johnston, Section Chief

 

Printed:

 

 

Office of Enforcement

 

Title:

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on December 22 2008

 

Thomas W. Easterly

 

Commissioner