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. 2018-25874-H

 

 

)

 

FORT WAYNE METALS RESEaRCH

 

)

 

PRODUCTS CORP (F/K/A Labeca 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 Fort Wayne Metals Research Products Corp. (F/K/A Labeca LLC) (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (“EPA”) ID No. INR 000 003 533, located at 3618 West Ferguson Road, in Fort Wayne, Allen County, Indiana (“Site”).

 

3.            Labeca LLC was merged with Fort Wayne Metals Research products Corp. on December 31, 2019.

 

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

 

5.            Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) to:

 

Mr. Roger Buchtman

Mr. Scott A. Glaze, Registered Agent

Labeca LLC

Labeca LLC

9609 Ardmore Ave.

9609 Ardmore Ave.

Fort Wayne, IN 46809

Fort Wayne, IN 46809

 

6.            Respondent notified EPA of Large Quantity Generator activities.

 

7.            Respondent manufactures wire for the medical device market using approximately 1,000 alloys, primarily stainless steel and Nitinol (nickel titanium).

 

8.            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.

 

9.            During an investigation including an inspection on September 11 and 14, 2018 conducted by a representative 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 inspection, Respondent did not make proper hazardous waste determinations on the acid wastes, wastewater treatment (“WWT”) slurry, and scrubber sludge which were solid wastes generated by Respondent.  Specifically:

 

1.            WWT slurry and waste acids are shipped offsite, together, as D002, D007 waste; however, based on Respondent’s primary SIC code 3315 (corresponding NAICS code 331222), the waste should include the K062 waste code.

 

Respondent was managing the waste as a hazardous - but rather than managing as a characteristic waste, Respondent is now managing the waste as the correct listed waste, as confirmed in a submittal sent via email on December 4, 2019 the waste acids are managed as K062 listed waste.

 

2.            The scrubber sludge (K062) generated from the periodic clean-out of the emission unit (wet scrubber) was disposed with the alkaline cleaner waste.  The alkaline cleaner waste/scrubber sludge mixture was disposed at a permitted treatment, disposal, and storage facility (“TSDF”) but as a non-hazardous waste.

 

In a submittal sent via email on December 4, 2019 the scrubber sludge and alkaline cleaner waste were determined to be non-hazardous.  Additional analytical (pH) was submitted for the scrubber sludge via email on January 19, 2021.

 

b.         Pursuant to 40 CFR 262.20, a generator who transports, or offers for transportation, hazardous waste for offsite treatment, storage, or disposal, must prepare a manifest. A generator must designate on the manifest one facility which is permitted to handle the waste described on the manifest. A generator may designate an alternate facility to handle his waste in the event that an emergency prevents delivery of the waste to the primary designated facility.

 

As noted during the inspection, Respondent offered hazardous waste for transportation for offsite treatment, storage, or disposal without preparing a manifest.  Specifically, a hazardous waste manifest was not used for waste scrubber sludge (K062) generated from the emission control unit for the pickling and etching lines. The waste scrubber sludge was combined with an alkaline cleaner waste and sent to a permitted TSDF as a non-hazardous waste.

 

According to the mixture rule, 40 CFR 261.3(a)(iv), the entire shipment becomes K062 waste when the two waste streams are mixed.  Approximately 55 gallons of waste scrubber sludge are generated every 6 months and approximately 3,500 gallons of alkaline cleaner waste are generated every 3 months.

 

After the inspection, analytical data obtained from the facility determined the alkaline cleaner waste stream has a pH of 6.5 and therefore is a non-hazardous waste.

 

The scrubber sludge was determined to be nonhazardous waste.

 

g.         Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.52, the content of the contingency plan must include the following: a description of appropriate actions, arrangements with local emergency response teams, contact information for the emergency coordinators, emergency equipment, and an evacuation plan.

 

As noted during the inspection, Respondent's contingency plan did not include all of the required information.  Specifically, the contingency plan map had not been updated to include changes that had taken place in the pickle house. The facility map showing the modified hazardous waste storage area on the north side of the pickle house wall, hazardous waste tank location, and evacuation routes had not been updated.

 

An updated contingency plan was submitted subsequent to the inspection which included changes at the pickle house and updated tank and storage locations as well as updated evacuation routes.

 

h.         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 Jason Duncan, whose job duties include inspections of the less than ninety (90) day accumulation areas with annual hazardous waste training.

 

It was determined the annual training was conducted in compliance per EPA guidance.

 

i.          Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.192(a), a generator with a new tank system must have a written assessment 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 did not provide the required written assessment for a new 4,500-gallon tank storing spent acids (D002) in the pickle house.  The tank was installed in July of 2018.  The tank did not have an integrity assessment, nor were the manufacturing specifications available, at the time of the inspection.  Respondent was in the process of obtaining an integrity assessment.  Respondent’s representative stated that they were waiting on an outstanding hydrostatic test and legal approval.

 

The completed integrity assessment was completed and submitted to IDEM on October 3, 2018.  IDEM technical staff will review.

 

j.          Pursuant to 329 IAC 3.1-16-2(4), each lamp or a container or package in which such lamps are contained must be labeled or marked clearly with the phrase “Universal Waste-Lamp(s) or “Waste Lamp(s)” or “Used Lamp(s) or with other words that accurately identify the universal waste lamps.

 

As noted during the inspection, Respondent had one 4-foot box of universal waste bulbs were not properly labeled.

 

Respondent labeled the box during the inspection.

 

k.         Pursuant to 40 CFR 268.7(a), with the initial shipment of waste to each treatment, storage, or disposal facility, a generator must send a one-time written notice to each facility receiving the waste and place a copy in the file.

 

As noted during the inspection, Respondent failed to provide the one-time written notice and place a copy in the file for the acid wastes, WWT slurry scrubber sludge and the alkaline cleaner waste stream.

 

The WWT slurry and waste acids are shipped offsite, together, as D002, D007 waste; however, based on the facility primary SIC Code 3315 (corresponding NAICS Code 331222), the waste should include the K062 waste code.

 

The Land Disposal Notification Form used by the facility for the (D002, D007) waste acids list nickel as an underlying constituent; however, it does not include all of the potential underlying constituents as is required in treatment standards for K062 at 40 CFR 268.40.

 

Scrubber sludge (K062), generated from the periodic clean-out of the emission control unit (wet scrubber), is combined with alkaline cleaner waste and disposed as non-hazardous waste. The alkaline cleaner waste is sent to a permitted TSDF as a non-hazardous waste.  Subsequent to the inspection, analytical documentation submitted by Respondent, showed that the alkaline cleaner waste stream has a pH of 6.5 and therefore is a non-hazardous waste.

 

Approximately 3,500 - 4,000 gallons of spent alkaline cleaner waste are disposed every 3 months as nonhazardous waste.  Approximately 55 gallons of scrubber sludge (K062) are generated 2 times per year.  When the scrubber sludge is generated, it is mixed with the alkaline cleaner waste for disposal, making the entire shipment (K062) waste.  The combination of these waste streams is also disposed as non-hazardous waste.

 

A one-time Land Ban Notification Form was not sent with the initial shipment for the spent analytical cleaner waste stream when combined with the scrubber sludge (K062).

 

It was determined that the scrubber sludge was nonhazardous waste.

 

l.          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.

 

As noted during the inspection, Respondent treated hazardous waste identified or listed in 40 CFR Part 261 without a permit.  Specifically, Respondent had a 55-gallon drum of scrubber sludge (K062) stored open in the annealing room and allowing it to evaporate before being disposed as non-hazardous waste.

 

It was determined that the scrubber sludge was nonhazardous waste.

 

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.            Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM documentation validating that the contingency plan revisions have been submitted to all hospitals that may be called upon to provide emergency services.

 

4.            Within thirty (30) days of the Effective Date, provide an integrity assessment of the tank system secondary containment showing the secondary containment has sufficient capacity, 4500 gallons, as required by 40 CFR 265.193. The assessment must include plan and profile drawings and calculations of the tank system secondary containment volume. Identify the contents of tanks sharing the same secondary containment.

 

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

 

Christina Halloran, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

6.            Respondent is assessed and agrees to pay a civil penalty of Five Thousand Dollars ($5,000).  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”.

 

7.            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

$100/week

Order paragraph # 5

$100/week

Order paragraph # 6

$100/week

 

8.            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.

 

9.            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

 

10.         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 1, above.

 

11.         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.

 

12.         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.

 

13.         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.

 

14.         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.

 

15.         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.

 

16.         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.

 

17.         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.

 

18.         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:  _________________________

 

Jennifer Reno, 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 06/16/2021 By:____

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality