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
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2018-25874-H |
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FORT WAYNE METALS RESEaRCH |
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PRODUCTS CORP (F/K/A Labeca 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 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: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Jennifer
Reno, Section Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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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
06/16/2021 By:____ |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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