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. 2017-24768-H

 

 

)

 

K & I Hard chrome, inc.,

 

)

 

 

 

)

 

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 K & I Hard Chrome, Inc. (“Respondent”), which owns/operates the facility with U.S. EPA I.D. Number IND 074057662 located at 1900 East Main Street, in New Albany, Floyd 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”) on December 20, 2017 via Certified Mail to:

 

Robert A. Eckerle, President and Registered Agent

K & I Hard Chrome, Inc.

1900 East Main Street

New Albany, IN 47150

 

Robert A. Eckerle, President and Registered Agent

K & I Hard Chrome, Inc.

723 Wicklow Road

Louisville, KY 40207

 

5.               Respondent operates a plating facility which includes hard and soft chrome plating, black oxide coating, electroless zinc plating, zinc phosphate, manganese phosphate, passivation of steel, chemical conversion on aluminum, and zinc plating.  Respondent notified for small quantity hazardous waste activities on March 4, 2008.

 

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 12, 2017, conducted by a representative of IDEM, Respondent was actually a Large Quantity Generator (“LQG”).  Respondent generated greater than 2,200 pounds of hazardous waste per month since it notified for small quantity hazardous waste activities and at the time of the inspection had accumulated more than 13,200 pounds of hazardous wastes at the Site, thereby subjecting it to LQG standards.  The following violations were found at the time of the inspection:

 

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 conduct hazardous waste determinations on used floor dry sand absorbent in a cubic yard super sack, which was solid waste generated by Respondent.

 

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 Part 264 and the permit requirements of 40 CFR 270 unless he has been granted an extension to the 90 day period.

 

As noted during the inspection, Respondent stored in Building #4 eight (8) 55-gallon containers of D002/D007 solids, three (3) totes of D007/D002 chromic sludge, and D007/D002 chromic plating solid/liquid debris in the chromic plating pit 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 261.

 

As noted during the inspection, Respondent stored in Building #4 eight (8) 55-gallon containers of D002/D007 solids, three (3) totes of D007/D002 chromic sludge, and D007/D002 chromic plating solid/liquid debris in the chromic plating pit without a RCRA Part B Hazardous Waste Treatment, Storage, or Disposal (“TSD”) permit.

 

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.

 

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

 

e.               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 inspection, Respondent failed to notify the Commissioner of its hazardous waste storage activities which required a RCRA Part B TSD permit.

 

f.                Pursuant to 40 CFR 262.34(c)(1)(ii),  a generator may accumulate as much as 55-gallons of hazardous waste in containers at or near the point of generation without a permit and without complying with 40 CFR 262.34(a), provided that the containers are marked with either the words “Hazardous Waste” or with other words describing the contents.

 

As noted during the inspection, Respondent accumulated hazardous waste in a container at or near the point of generation without a permit and did not properly mark the satellite accumulation container of D007 contaminated solids with the words “Hazardous Waste” or other words identifying the contents.

 

g.               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 one super sack of F006 plating sludge, three (3) D007 chromic sludge totes, eighteen (18) 5-gallon containers of D002 caustic salts, and one tote with the top cut off of dried D007 chromic plating sludge with accumulation start dates.

 

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 inspection, Respondent accumulated hazardous waste on-site, without a permit, and did not label or clearly mark three (3) D007 chromic sludge totes, eighteen (18) 5-gallon containers of D002 caustic salts, and one tote with the top cut off of dried D007 chromic plating sludge with the words “Hazardous Waste.”

 

i.                 Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.171, if a container holding hazardous waste is not in good condition, or if it begins to leak, the generator must transfer the hazardous waste from this container to a container that is in good condition.

 

As noted during the inspection, Respondent stored two (2) 5-gallon containers of D002 caustic salts in containers in poor condition.  The caustic salts inside the deteriorated containers had spilled on the floor.

 

j.                 Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.172, a generator must use a container made of or lined with materials which are compatible with the hazardous waste to be stored.

 

As noted during the inspection, Respondent stored some of the eighteen 5-gallon containers of D002 caustic salts in incompatible metal containers and corrugated fiberboards.

 

k.               Pursuant to 40 CFR 262.34(a)(1)(i) and 40 CFR 262.34(c)(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 stored one satellite container of D007 contaminated solids, eighteen 5-gallon containers of D002 caustic salts, and one tote with the top cut off of dried D007 chromic plating sludge open.

 

l.                 Pursuant to 40 CFR 273.13(d)(1), a small quantity handler of universal waste must contain any lamp in containers or packages that are structurally sound, adequate to prevent breakage, and compatible with the contents of the lamps.  Such containers and packages must remain closed and must lack evidence of leakage, spillage, or damage that could cause leakage under reasonable foreseeable conditions.

 

As noted during the inspection, Respondent failed to close two (2) containers of universal waste lamps.

 

m.             Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must inspect areas where containers are stored, at least weekly, looking for leaks and deterioration caused by corrosion or other factors.

 

As noted during the inspection, Respondent failed to conduct weekly inspections of the less than 90-day container storage area.

 

n.               Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, a generator must maintain aisle space to allow the unobstructed movement of personnel, fire protection, equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency.

 

As noted during the inspection, Respondent failed to provide required aisle space in the less than 90-day container storage area.

 

o.               Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.51, a generator must have a contingency plan.

 

As noted during the inspection, Respondent did not have a contingency plan on-site which meets the RCRA requirements for LQGs.

 

p.               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 involved with managing hazardous waste with initial and annual hazardous waste training which meets the RCRA requirements for LQGs.

 

8.               Respondent responded to the NOV with the following corrective actions:

 

a.       Respondent notified IDEM’s Regulatory Reporting Section on or about February 13, 2018, that it had operated as a LQG during 2017 and that it currently engages in only small quantity hazardous waste activities.

 

b.               On September 22, 2017, Respondent collected a representative sample of used floor dry described in Finding 7.a. herein to be tested to determine if it exhibited a Toxicity Characteristic hazardous waste, and that test found the used floor dry did not exhibit a Toxicity Characteristic.

 

c.               On October 6, 2017, Respondent removed the D007/D002 chromic plating solid/liquid debris in a chromic plating pit described in Finding 7.b. herein to 55-gallon labeled containers.  By October 27, 2017, Respondent processed the liquids, and solids other than plating tape debris, through its wastewater pretreatment system, discharging the treated material to a Publicly Owned Treatment Works, and on December 8, 2017, Respondent shipped solids generated from pretreatment of that material to Agmet Materials for recycling.  By letter dated December 9, 2017, Respondent submitted copies to IDEM documenting its shipment of this sludge to Agmet Materials.

 

d.               On October 6, 2017, Respondent placed debris in the pit that consisted of plating tape into a satellite accumulation container at the Site Respondent uses to accumulate plating tape at or near the point of generation.

 

e.               On September 14, 2017, Respondent processed chromic plating sludge described in Finding 7.g. as being in a tote with the top cut off, in its wastewater pretreatment system, placed sludge resulting from treatment of that material into a super sack used to accumulate sludge from that wastewater treatment system.  On December 8, 2017, Respondent shipped the super sack of sludge to Agmet Metals for recycling.  By letter dated December 19, 2017, Respondent submitted copies to IDEM documenting it shipment of this sludge to Agmet Metals.

 

f.                On October 9, 2018, Respondent shipped eight (8) 55-gallon containers of D002/D007 solids described in Findings 7.b. and 7.c. herein to a permitted TSD facility, and on December 4, 2017, Respondent shipped three (3) totes of D007/D002 chromic sludge described in Finding 7.b. herein to a permitted TSD facility.  By letter dated December 19, 2017, Respondent submitted copies to IDEM documenting the proper disposal of the containers described in Finding 7.b. and 7.c. herein.

 

g.               Promptly after the September 12, 2017 inspection, Respondent removed spilled caustic salts described in Finding 7.i. from the floor and placed them into a properly labeled and dated compatible container.  By letter dated December 19, 2017, Respondent submitted to IDEM documentation showing proper disposal at a permitted TSD facility, and during a meeting with IDEM representatives on February 7, 2018, Respondent submitted photo documentation showing complete removal of the spilled caustic salts.

 

h.               On September 14, 2017, Respondent transferred to compatible 55-gallon containers material described in Finding 7.g. as being held in eighteen (18) 5-gallon containers.  The material present in eleven (11) of those 5-gallon containers were caustic salt/sludge from black oxide plating operations, and on September 14, 2018 new containers holding that material were marked with a beginning accumulation date and a “Hazardous Waste” label and placed in a hazardous waste accumulation area until December 4, 2017 when they were shipped to a permitted TSD.  By letter dated December 19, 2017, Respondent submitted copies to IDEM documenting the proper disposal of this salt/sludge from black oxide plating.  Material present in the remaining seven (7) 5-gallon containers were pieces of concrete from around the black oxide plating area.  Respondent collected a representative sample of this material to be collected on September 22, 2017 and analyzed to determine if the material exhibited any characteristic of a hazardous waste.  Those analyses found the material is not a hazardous waste.  The material is being held at the Site in compatible containers awaiting acceptance by a Subtitle D-regulated landfill for disposal.

 

i.                 Promptly after the September 12, 2017 inspection, Respondent marked the date when accumulation began on each container of hazardous waste other than satellite accumulation containers at the Site.

 

j.                 Promptly after the September 12, 2017 inspection, Respondent marked with the words “Hazardous Waste” containers of hazardous waste described in Finding 7.f. as being accumulated at or near the point of generation.

 

k.               During the September 12, 2017 inspection, Respondent closed the two containers of universal waste described in Finding 7.1. herein.

 

l.                 Respondent completed a Contingency Plan, meeting the requirements of 40 CFR 261.51 on or about February 2, 2018.  Respondent mailed a copy of that Contingency Plan to all local police departments, fire departments, hospitals, and state and local emergency response teams, and during a meeting with IDEM on February 7, 2018, Respondent delivered a copy of that Contingency Plan to IDEM.

 

m.             On April 3, 2018, Respondent submitted a copy of its hazardous waste management personnel training records to IDEM.

 

n.               Regarding the container storage area noted in Finding 7.b., hereinafter referred to as “the pad”, between December 4, 2017 and February 6, 2018, Respondent:

 

(i)              removed all wastes from the pad and appropriately disposed of it;

 

(ii)             mechanically cleaned the pad by scraping, sweeping, and power washing to remove all physical contamination;

 

(iii)            inspected the pad for cracks and found none;

 

(iv)           rinsed the pad with a high pressure steam cleaner with detergent to remove previously stored materials;

 

(v)            Rinsed the pad three (3) times; and

 

(vi)           Collected the final rinsate, analyzed two (2) samples of that rinsate and on April 3, 2018 submitted the test result to IDEM with signed chain-of-custody sheets, sampling dates, analysis dates, analytical methods used and quality control results, including initial and continuing calibration results, blank results, matrix duplicates, and matrix spike/matrix spike duplicate results.  Except for chromium, tests found the constituents analyzed were present in concentration below the Maximum Contaminant Level (MCL) of the National Primary Drinking Water Regulations (40 CFR 141) for that constituent.

 

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.       Respondent shall ensure compliance with 40 CFR 262.34(a)(2).  Specifically, Respondent shall ensure the date when the accumulation begins is clearly marked and visible for inspection on each container accumulating hazardous waste.

 

4.               Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(c)(1)(ii).  Specifically, Respondent shall ensure satellite accumulation containers are clearly marked with the words “Hazardous Waste” or other words identifying the contents.

 

5.               Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(3).  Specifically, Respondent shall ensure each container accumulating hazardous waste is clearly marked with the words “Hazardous Waste.”

 

6.               Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.171.  Specifically, Respondent shall ensure hazardous waste is stored in containers in good condition.

 

7.               Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.172.  Specifically, Respondent shall ensure containers storing hazardous waste are compatible with the hazardous waste to be stored.

 

8.               Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(1)(i) and 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a).  Specifically, Respondent shall ensure containers holding hazardous waste remain closed during storage, except when it is necessary to add or remove waste.

 

9.               Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 273.13(d)(1).  Specifically, Respondent shall ensure containers of universal waste lamps remain closed except when necessary to add or remove waste.

 

10.           Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174.  Specifically, Respondent shall conduct weekly inspections of the less than 90-day container storage area.

 

11.           Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(4) referencing 40 CFR 265.35.  Specifically, Respondent shall provide required aisle space in the less than 90-day container area.

 

12.           Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall decontaminate the hazardous waste container storage area in Building #4 noted in Finding 7.b., hereinafter referred to as “the pad”, as follows:

 

a.       remove all wastes from the pad and appropriately dispose;

 

b.       mechanically clean the pad by scraping, sweeping, or other method, to remove all physical contamination;

 

c.       wash the pad with a high pressure steam cleaner with detergent or appropriate solvent to remove the previously stored waste materials;

 

d.       rinse the pad three (3) times with water;

 

e.       collect the third (final) rinsate separately and analyze two (2) samples to show that the pad’s surface meets the cleanup level for chromium of 0.1 mg/L.

 

f.        the decontamination procedure shall be repeated until the cleanup levels are met;

 

g.       ensure that care is taken to prevent migration of cleaning liquids from the pad area;

 

h.       collect and dispose of all residues and rinsates as hazardous waste unless the residues and rinsates are analyzed and determined to be non-hazardous.

 

13.           Within fifteen (15) days of completing the decontamination required in Order 12, Respondent shall submit documentation, including sample results, that the decontamination has been completed to IDEM for review.  Analytical results submitted to IDEM for review shall include signed chain-of-custody sheets, sampling dates, analysis dates, analytical methods used, MCLs, EQLs, and quality control results.  The quality assurance/quality control (QA/QC) results shall include initial and continuing calibration results, blank results, matrix duplicates, and matrix spike/matrix spike duplicate results.

 

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

 

Jennifer Reno, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

15.           Respondent is assessed and agrees to pay a civil penalty of Twenty-Five Thousand Six Hundred Dollars ($25,600).  Said penalty amount shall be due and payable to the Environmental Management Special Fund in four (4) installments.  The quarterly installment payments shall be $6,400.  The first installment shall be due thirty (30) days after the Effective Date and remaining installment payments shall be made every ninety (90) days thereafter.

 

16.           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 12

$500 per week

Order Paragraph 13

$200 per week

 

17.           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.

 

18.           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

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

19.           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 18, above.

 

20.           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.

 

21.           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.

 

22.           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.

 

23.           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.

 

24.           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.

 

25.           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.

 

26.           This Agreed Order resolves all violations described in I. Findings of Fact herein.

 

27.           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 Johnston, 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 12/19/18

 

Peggy Dorsey

 

Assistant Commissioner

 

Office of Land Quality