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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No.
2015-22955-H |
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EXEON PROCESSORS, 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 Exeon Processors, LLC
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. INR 000 138 859 located at 232
West Pearl Street, in Jonesboro, Grant 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. Steve Lundergan |
Exeon
Processors, LLC |
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Vice President & General Manager |
1745 West Fulton Street |
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Exeon
Processors, LLC |
Chicago, Illinois 60612 |
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232 West Pearl Street |
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Jonesboro, Indiana 46938 |
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CT Corporation System, Registered Agent for |
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Exeon
Processors, LLC |
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150 West Market Street, Suite 800 |
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Indianapolis, Indiana 46204 |
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5.
Respondent notified EPA of Large Quantity
Generator/Small Quantity Generator activities on June 24, 2015. Respondent further designated its hazardous
waste activities as a Short-Term Generator commenting because of a change in
Respondent’s processes hazardous waste is no longer generated.
6.
Respondent buys and processes all types of
copper scrap, focusing mainly on the chopping of #1 and #2 insulated copper
wire.
7.
IDEM representatives conducted an inspection
on February 12, 2014. As a result of
this inspection a Violation Letter was issued on March
13, 2014. Respondent submitted a response
to the Violation Letter dated April 11, 2014.
8.
The Violation Letter requested a waste
determination to be conducted on the baghouse dust
from each baghouse prior to spraying the baghouse dust with an acid/water
mixture and for the plastics from the Carpco
separator at the point of generation. Typically, the baghouse dust is brought back into the facility, sprayed with an
acid/water mixture, tested for hazardous waste characteristics, and then mixed
with the Carpco waste. According to the facility representative the
acid/water mixture is sprayed to immobilize hazardous
metals. The analytical results provided
by Respondent during the February 2014 inspection and the analytical results
submitted indicated this material to be non-hazardous after sprayed with the
acid/water mixture.
9.
On November 7, 2014 IDEM representatives
conducted a Sampling Event and PCB Inspection.
IDEM representatives sampled the baghouse dust from each baghouse prior
to being sprayed with the acid/water mixture and prior
to being mixed with the plastics from the Carpco
separator. The plastics from the Carpco separator were also sampled
prior to being mixed with the baghouse dust.
Respondent’s test results showed that none of the materials were
hazardous. However, IDEM’s test results
indicated that the baghouse dust from both baghouses was hazardous for cadmium
(D006), and that the plastics from the Carpco
separator were nonhazardous. IDEM’s test
results were first provided to Respondent by a letter
dated April 9, 2015.
10.
Respondent submitted a response dated June 5,
2015 to the April 9, 2015 letter sent by IDEM. Respondent has installed an in-line
stabilization system and Respondent contends waste generated no longer exhibits
the toxicity characteristic.
11.
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.
12.
During an investigation including an inspection
on February 12, 2014 and a sampling event on November 7, 2014 conducted by
representatives 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 February 12, 2014
inspection, Respondent’s hazardous waste determinations on the baghouse dust
and the plastics from the Carpco separator, which
were solid wastes generated by Respondent, were not made
at the point of generation. Respondent’s testing showed that all materials were non-hazardous. IDEM conducted its sampling on November 7,
2014. IDEM samples of baghouse dust were taken from each baghouse on the north side of the
building prior to being sprayed with the acid/water mixture. The baghouse dust for both baghouses was
determined to be hazardous for cadmium (D006).
The Carpco waste was also
sampled prior to being mixed with the baghouse dust and it was
determined to be non-hazardous. According to the facility representative, at
the time of the inspection, approximately 63,000 pounds per month of the
baghouse dust are generated and approximately
400,000-500,000 pounds of the mixed waste streams are generated each
month. The mixed wastes were disposed at
a Permitted Subtitle D Solid Waste Landfill (Jay County Landfill).
b. Pursuant to IC 13-30-2-1(3), no person
shall deposit any contaminants upon the land in a place and manner that creates
or would create a pollution hazard that violates or would violate 329 IAC
10-4-2 and 40 CFR 265.31.
As noted during the February 12, 2014
inspection, Respondent deposited a contaminant, including, but not limited to
baghouse dust (determined by IDEM to be D006) and baghouse dust and Carpco Waste, upon the land in a place and manner that creates
or would create a pollution hazard that violates or would violate 329 IAC
10-4-2 and 40 CFR 265.31. Specifically, releases of baghouse dust (determined
by IDEM to be D006) were observed under the large and small baghouses on the
north side of the facility and also a release of baghouse dust and Carpco waste (PVC, rubber and crosslink) was observed
around the solid waste roll-offs on the north side of the facility, both
releases occurring on paved surfaces.
In early March of 2014, the baghouse
dust (~5-10 pounds) and the combined baghouse dust/Carpco
waste (~50-100 pounds) was cleaned and disposed at a
Permitted Subtitle D Solid Waste Landfill.
c.
Pursuant to 329 IAC 10-4-2, no person shall
cause or allow the storage, containment, processing, or disposal of solid waste
in a manner which creates a threat to human health or the environment,
including the creating of a fire hazard, vector attraction, air or water
pollution, or other contamination.
As noted during the February 12, 2014
inspection, Respondent allowed solid waste, including, but not limited to
baghouse dust (determined by IDEM to be D006) and Carpco
waste, to be released at the Site in a manner which
creates a threat to human health or the environment. Specifically, releases of baghouse dust (determined
by IDEM to be D006) were observed under the large and small baghouses on the
north side of the facility and also a release of baghouse dust and Carpco waste (PVC, rubber and crosslink) was observed
around the solid waste roll-offs on the north side of the facility, both
releases occurring on paved surfaces.
In early March of 2014, the baghouse
dust (~5-10 pounds) and the combined baghouse dust/Carpco
waste (~50-100 pounds) was cleaned and disposed at a
Permitted Subtitle D Solid Waste Landfill.
d.
Pursuant to 40 CFR 265.31, facilities must be
maintained and operated to minimize the possibility of a fire, explosion, or
any unplanned sudden or non-sudden release of hazardous waste or hazardous
waste constituents to air, or surface water, which could threaten human health
or the environment.
As noted during the February 12, 2014
inspection, Respondent allowed baghouse dust, found by IDEM to be hazardous for
Cadmium, to be released to the environment onto paved
surfaces under the baghouses located on the north side of the facility on to
paved surfaces. Specifically, containers
under drop-chutes from the baghouses were either overflowing or not in place to
catch and contain baghouse dust. At the
time of the November 7, 2014 sampling event, the containers were under the
baghouses; however, they were not connected to the
chutes coming from the baghouses nor were they closed or labeled.
In early March of 2014, the baghouse
dust (~5-10 pounds) and the combined baghouse dust/Carpco
waste (~50-100 pounds) was cleaned and disposed at a
Permitted Subtitle D Solid Waste Landfill.
e.
Pursuant to 329 IAC 13-4-5, generators must
ensure that their used oil is transported only by
transporters who have obtained EPA identification numbers.
As noted during the February 12, 2014
inspection, used oil coolant from the knife sharpeners/grinders was being
shipped offsite, by transporters who have not obtained an EPA ID number, with shavings
to scrap/salvage yards.
According to Respondent’s submittal
dated April 11, 2014, Respondent has contracted Heritage-Crystal Clean to
manage any future used oil coolant generated from the knife grinding/sharpening
process.
f.
Pursuant to 329 IAC 3.1-1-10, every hazardous
waste generator, transporter, or owner or operator of a hazardous waste
facility shall notify the commissioner of its hazardous waste activity on the
approved forms.
As noted during the November 7, 2014
sampling event, Respondent failed to notify the Commissioner of hazardous waste
generator activities. Specifically,
Respondent generates large quantities of baghouse dust that was
determined by IDEM to be characteristically hazardous for cadmium
(D006). Subsequent to the inspection
Respondent notified IDEM of its hazardous waste large quantity generator
activities.
g.
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 November 7, 2014
sampling event, Respondent did not store containers of hazardous waste
closed. Specifically, the containers accumulating
baghouse dust (determined by IDEM to be D006) under the chutes coming from the
baghouses and the hopper used to collect baghouse dust (determined by IDEM to
be D006) after re-entering the building from the baghouse while waiting to be
sprayed with an acid/water mixture were not stored closed except when adding or
removing waste.
h.
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 November 7, 2014
sampling event, 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, the containers accumulating baghouse dust (determined by
IDEM to be D006) under the chutes coming from the baghouses and the hopper used
to collect baghouse dust (determined by IDEM to be D006) after re-entering the
building from the baghouse while waiting to be sprayed with an acid/water
mixture were not labeled with the words ‘Hazardous Waste.”
i.
Pursuant to 40 CFR 262.34(a)(4)
referencing 40 CFR 265.51, a generator must have a contingency plan for the
facility.
As noted during the November 7, 2014
sampling event, Respondent did not have a contingency plan.
j.
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 November 7, 2014
sampling event, Respondent did not provide employees with the required hazardous
waste training.
k.
Pursuant to 40 CFR 262.34 referencing 40 CFR
268.7(a), a generator of hazardous waste must determine if the waste has to be
treated before it can be land disposed. This is done by determining if the
hazardous waste meets the treatment standards in 40 CFR 268.40, 40 CFR 268.45,
or 40 CFR 268.49. This determination can be made in
either of two ways: testing the waste or using knowledge of the waste. With the
initial shipment of hazardous waste (meeting or not meeting the treatment
standards in 40 CFR 268.40 and 40 CFR 268.42) to each treatment or storage
facility, the generator must send a one-time written notice to each treatment
or storage facility receiving the waste, and place a copy in the file. No
further notification is necessary until such time that the waste or facility
change, in which case a new notification must be sent
and a copy placed in the generator's file.
Waste
analyses presented to IDEM during the 2/12/14 inspection indicated the waste
was non-hazardous; however, the waste analysis was conducted
after the waste had been sprayed with acid/water mixture. Sampling conducted by IDEM showed the
baghouse dust to be hazardous for cadmium (D006) at the point of
generation. Respondent contends that the
baghouse dust met applicable treatment standards at the time of disposal. A one-time notification was
not submitted to the facility receiving the waste (Jay County Landfill)
indicating that the waste meets or does not meet treatment standards.
13. In recognition of the settlement reached,
Respondent waives any right to administrative and judicial review of this
Agreed Order. Compliance with this
Agreed Order resolves all violations identified in the October 22, 2015 Notice
of Violation issued in this matter.
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
comply with 40 CFR 262.11. Specifically,
Respondent shall ensure that a proper waste determination is
made for all solid waste at the point of generation. If the waste is hazardous it shall be managed according to the applicable regulations.
4.
Respondent shall comply with IC 13-30-2-1(3),
329 IAC 10-4-2, and 40 CFR 265.31.
Specifically, Respondent has submitted to IDEM a plan on how future
releases will be addressed. The plan included that releases/spills will be responded to within 24 hours. The plan included preventive measures that will be taken to prevent future baghouse dust and baghouse
dust and Carpco waste releases/spills.
5.
Upon the Effective Date, Respondent shall
comply with 329 IAC 13-4-5 and ensure that their used oil is
transported only by transporters who obtained EPA identification numbers.
6.
Upon the Effective Date, Respondent shall
ensure compliance with 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.173(a). Specifically, Respondent shall ensure any hazardous
waste containers are stored closed except when adding or removing waste.
7.
Upon the Effective Date, Respondent shall
ensure compliance with 40 CFR 262.34(a)(3). Specifically, Respondent shall label or mark any
containers and tanks accumulating hazardous waste onsite with the words
“Hazardous Waste”.
8.
Should Respondent become subject to LQG
standards, Respondent shall comply with the requirement to create a contingency
plan in accordance with 40 CFR 262.34(a)(4) referencing 40 CFR 265.51.
9.
Should Respondent become subject to LQG
standards, Respondent shall comply with 40 CFR 262.34(a)(4)
referencing 40 CFR 265.16.
10.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34 referencing 40 CFR 268.7(a). If Respondent treats the baghouse dust and/or
baghouse dust mixed with Carpco waste to meet
treatment standards, Respondent shall submit to IDEM the waste analysis plan
followed to ensure the wastes meet the treatment standards in 40 CFR 268.40 and
40 CFR 268.42.
11.
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
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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 |
12.
Respondent is assessed
and agrees to pay a civil penalty of Thirty Thousand Dollars ($30,000). 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”.
13.
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:
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Indiana Department of Environmental
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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 signatory to this Agreed Order
certifies that he or she is fully authorized to
execute this Agreed Order and legally bind the party he or she represents. 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
the 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
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For the
Commissioner: |
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Signed
07/08/16 by Peggy Dorsey for: |
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Bruce H Palin |
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Assistant
Commissioner |
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Office of
Land Quality |
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