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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
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2020-27293-H |
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Brenntag great lakes, 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 Indiana Code (“IC”)
13-30-3-3, entry into the terms of this Agreed Order does not constitute an
admission of any finding of fact or asserted 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 IC
13-13-1-1.
2.
Respondent is Brenntag Great Lakes, LLC
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. IND984891556, located at 1615
Estella Avenue, in Fort Wayne, Allen 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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Brenntag
Great Lakes, LLC |
C
T Corporation System, Registered Agent |
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Attn:
Steven Terwindt, CEO |
for
Brenntag Great Lakes, LLC |
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5083
Pottsville Pike |
334
North Senate Avenue |
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Reading,
PA 19605 |
Indianapolis,
IN 46204 |
5.
Respondent notified EPA of Very Small Quantity Generator
activities.
6.
Brenntag Great Lakes, LLC is a wholesale
distributor of chemicals.
7.
329
Indiana Administrative Code (“IAC”) 3.1 incorporates federal hazardous waste
management requirements found in 40 Code of Federal Regulations (“CFR”) Parts
260 through 270 and Part 273, including those identified below.
8.
During
an investigation including an
inspection on July 9, 2020 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 a hazardous waste determination on one (1) thirty (30)
yard roll-off containing soil and gravel contaminated as a result of a
hydrochloric acid release, two (2) IBCs labeled as ”Diesel
Exhaust Fluid” stored on the north side of the Brenntag property in area
reserved for empty IBC storage, and one (1) IBC with the top removed and
labeled as “Sodium Bisulfite”.
b. Pursuant to IC 13-30-2-1(4), no person
shall deposit or cause or allow the deposit of any contaminants or solid waste
upon the land, except through the use of sanitary landfills,
incineration, composting, garbage grinding, or another method acceptable to the
board.
As noted
during the inspection, Respondent deposited or caused and/or allowed the
deposit of contaminants and/or solid wastes, including, but not limited to approximately
seven thousand eight hundred (7,800) release of hydrochloric acid (HCl). On
June 29, 2020, an 8,000-gallon HCl product storage tank experienced a
catastrophic failure after a tanker off-loaded HCl product into the storage
tank. Approximately 7,500 gallons of HCl were quickly released into secondary
containment. The HCl breached the secondary containment, released to a paved
transfer area, then an unpaved parking lot area, to a ditch on the north side
of the property, and then flowed east and then north entering a storm drain.
On September 25, 2020, an Initial
Response Report was received by IDEM that documented spill response and
clean-up activities.
c. Pursuant to 327 Indiana Administrative
Code (“IAC”) 2-10-6(a), (b), and (d),
(a) Aboveground storage tanks or storage
areas containing hazardous materials that are located outside a building must have
secondary containment.
(b) Secondary
containment must be designed and constructed consistent with current
engineering standards with materials that are compatible with the hazardous
materials being stored and which will prevent a release from entering waters of
the state for a seventy-two (72) hour period.
(d) A secondary containment area must be
properly maintained to protect the integrity and capacity of the secondary
containment.
As noted
during the inspection, Respondent failed to maintain the secondary containment of
the outdoor tank farm to protect the integrity and capacity of the secondary containment.
The containment failed to prevent a HCl release from a 8,000-gallon HCl product storage tank from
breaching the secondary containment, releasing to a paved transfer area, then
an unpaved parking lot area, entering a ditch on the north side of the
property, and then flowed east and then north entering a storm drain. The
containment was last coated in 2014. As noted during the inspection, there were
large cracks present within the walls of the containments that had been filled
with caulk.
On September
25, 2020, an Initial Response Report was received by IDEM that documented secondary
containment repairs. Additional documentation was received by IDEM on February
18, 2021, May 10, 2021 and September 28, 2021, regarding
secondary containment repairs.
d. Pursuant
to 327 IAC 2-10-7(a)(b),
(a) A hazardous materials transfer area must
be designed and constructed consistent with current engineering standards with
materials that are compatible with the hazardous materials being stored, and
that will prevent a release from entering waters of the state for a seventy-two
(72) hour period during loading and unloading of a tank as follows:
(1) A hazardous
materials transfer area must:
(A) contain a
minimum of the volume of the hazardous material that could be pumped during one
(1) minute of transfer operation; or
(B) direct the
minimum volume of the hazardous material that could be pumped during one (1)
minute of transfer operation to a diversionary system that treats or
temporarily stores the hazardous material.
(b) The hazardous
materials transfer area must be properly maintained to protect the integrity
and capacity of the transfer area.
As noted during the inspection,
Respondent failed to maintain the transfer area to protect the integrity and
capacity of the transfer area. Soil and gravel were allowed to accumulate in
the area minimizing the amount of hazardous material able to be maintained
within the containment.
On September 25, 2020, an Initial
Response Report was received by IDEM that documented maintenance repairs to the
transfer area and volume calculations. Additional documentation was received by
IDEM on September 28, 2021, regarding transfer area repairs.
e. Pursuant
to 327 IAC 2-10-8(a), (b), and (c),
(a) The owner or
operator of each facility with an aboveground storage tank, storage area, or
transfer area subject to this rule must be prepared to prevent and control
pollution that could result from an aboveground storage tank, storage area, or transfer
area discharge or spill.
(b) Within
twelve (12) months of the effective date of this rule, the owner or operator of
each facility with an aboveground storage tank, storage area, or transfer area
subject to this rule shall prepare a response plan for the facility. The
response plan must be available for inspection at the facility and, if
requested in writing by the department, submitted to the Indiana Department of
Environmental Management, Office of Land Quality, 100 North Senate Avenue,
Indianapolis, Indiana 46204, Attention: Emergency Response.
(c) The response
plan may be a part of an existing contingency, emergency response plan, or
other spill plan for the facility provided that all elements in subsection (b)
are included in the plan.
As noted during the inspection,
Respondent failed to provide a spill response plan for review at the time of
the inspection.
On September 25, 2020, an Initial
Response Report was received by IDEM that contained a Contingency Plan & Emergency
Response Procedures Plan dated August 25, 2014.
On February 18, 2021, a revised Facility
Contingency Plan and Emergency Response Procedures Plan dates February 17,
2021, was submitted to IDEM.
f. Pursuant to 40
CFR 262.17(a)(5)(ii)(A), a large quantity generator may accumulate
hazardous waste on-site for 90 days or less without a permit, provided that,
while being accumulated on-site, each 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 the E-tank containing D002 hazardous waste with the words
"Hazardous Waste."
g. Pursuant to 40
CFR 262.17(a)(5)(ii)(B), a large quantity generator may accumulate
hazardous waste on-site for 90 days or less without a permit, provided that,
while being accumulated on-site, each tank is labeled or marked with an
indication of the hazards of the contents.
As noted during the inspection,
Respondent accumulated hazardous waste on-site, without a permit, and did not
label or clearly mark the E-tank containing D002 hazardous waste with an
indication of the hazards of the contents.
9.
Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the
settlement reached, Respondent acknowledges notice of this right and 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 and applies to
the Site located at located at 1615 Estella Avenue, in Fort Wayne, Allen
County, Indiana. This Agreed Order shall have no force or effect until the Effective
Date.
2.
Respondent shall comply with the statute and rules listed in the
findings of fact above.
3. Within
thirty (30) days of the Effective Date, Respondent shall comply with 327 IAC 210-8(a),
(b), and (c). Respondent shall ensure
the spill response plan is made available for review during inspections.
4. Upon
the Effective Date, Respondent shall comply with 40 CFR 262.17(a)(5)(ii)(A). Specifically,
Respondent shall ensure each hazardous waste storage tank is labeled or marked
clearly with the words "Hazardous Waste" for as long as it remains a
large or small quantity generator of hazardous waste.
5. Upon the Effective
Date, Respondent shall comply with 40 CFR 262.17(a)(5)(ii)(B). Specifically,
Respondent shall ensure each hazardous waste storage tank is labeled or marked
clearly with an indication of the hazards of the contents for as long as it
remains a large or small quantity generator of hazardous waste.
6.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise
in writing, shall be sent to:
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Debbie
Chesterson, Enforcement Case Manager |
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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 |
7. Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Forty-Three Thousand Dollars
($43,000). Said penalty amount shall be due and payable to the “Environmental
Management Special Fund” within sixty (60) days of the Effective Date; the sixtieth
day being the “Due Date.”
8.
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 Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
9.
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 8 above.
10.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
11.
This Agreed Order shall apply to and be binding
upon Respondent and its successors and assigns. Respondent shall provide a copy
of this Agreed Order, if in force, to any subsequent owners, successors, or
assigns before ownership rights are transferred.
12.
No change in ownership, corporate, or partnership
status of Respondent shall in any way alter the Respondent’s status or responsibilities under this
Agreed Order.
13.
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.
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.
15.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
16.
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.
17.
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 violations
specified in the NOV, the July 9, 2020 Industrial / Hazardous Waste Inspection
Report, or in connection with the June 29, 2020 above referenced event, in
which an 8,000-gallon HCl product storage tank experienced a catastrophic
failure after a tanker off-loaded HCl product into the storage tank.
18.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the U.S. Environmental
Protection Agency (U.S. 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 U.S. EPA or any
other agency or entity.
19. This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent. If Brenntag Great Lakes, LLC provides notice
that the Site ceases operations, or ceases storage of hazardous materials and
transfers all hazardous materials, upon inspection and approval, IDEM shall
issue a Resolution of Case Letter and the Order shall cease to remain in
effect.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
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By:
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By: _____________________
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Jennifer Reno, Section Chief |
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Enforcement Section |
Printed:
_ Shawn P. Wiram ___ |
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Office of Land Quality |
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Title:
Vice President, Safety, Health & Environment |
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Date:
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Date:
_______________________ |
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COUNSEL
FOR RESPONDENT: |
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By:
________________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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For
the Commissioner: |
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Signed 11/04/21 |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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