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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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Complainant, |
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Case No. 2022-28734-H |
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WOLF LAKE TERMINALS INC., |
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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
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 Wolf Lake Terminals Inc.
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. IND054101415, located at 3200
Sheffield Avenue, in Hammond, Lake 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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Garland
Middendorf, Registered Agent |
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Attn:
Garland Middendorf, President |
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for
Wolf Lake Terminals Inc. |
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RFD
1 |
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3200
Sheffield Avenue, Building #3 |
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Rocheport,
MO 65279 |
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Hammond,
IN 46327 |
5.
Respondent notified EPA of Large Quantity Generator activities.
6.
Wolf Lake Terminals Inc. provides bulk liquid
storage services.
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.
7.
During
an investigation including an
inspection on September 1, 2020, and a record review on March 24, 2022, conducted
by a representative of IDEM, the following violations were found:
As
noted during the record review, Respondent did not make a proper hazardous waste determination on a
mineral spirits and diesel mixture in February 2018 when three (3) shipments
were made to Lonestar Buzzi Unicem in Greencastle, Indiana,
on bills of lading. Respondent improperly applied the exclusion of 40 CFR
261.2(c)(2)(ii) as the diesel fuel was never intended to be a fuel.
b. Pursuant
to 40 CFR 262.13, a generator must determine its generator category. A generator’s category is based on the amount
of hazardous waste generated each month and may change from month to month.
As noted
during the inspection, Respondent failed to properly determine its generator
category. Based on the volume of waste generated,
Respondent operated as a large quantity generator in October 2019 and November
2019. For the month of September 2019 and the months December 2019 through July
2020, generator status could not be determined as the volume of waste generated
was unknown.
c. 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 and record review, Respondent offered hazardous waste for
transportation for offsite treatment, storage, or disposal without preparing a
manifest when it shipped twenty-three (23) gallons of D039 hazardous waste to
Safety Kleen Systems on October 2, 2019, November 26, 2019, and August 28,
2020. During the time of these shipments, Respondent was operating as either a
small quantity generator of hazardous waste or a large quantity generator of
hazardous waste.
Additionally, Respondent
failed to utilize a hazardous waste manifest when it shipped Flammable Liquid,
N.O.S. (mineral spirits, diesel fuel), UN 1993, PG III totaling 18,300 gallons
to Lone Star Buzzi Unicem in Greencastle, IN in September 2018 on bills
of lading.
d. Pursuant to IC 13-30-2-1(12), a person
may not cause or allow the transportation of a hazardous waste without a
manifest if a manifest is required by law.
As noted during the inspection and
record review, Respondent caused or allowed the transportation of a hazardous
waste without a manifest as required by law when it shipped twenty-three (23)
gallons of D039 hazardous waste to Safety Kleen Systems on October 2, 2019,
November 26, 2019, and August 28, 2020. During the time of these shipments,
Respondent was operating as either a small quantity generator of hazardous
waste or a large quantity generator of hazardous waste.
Additionally,
Respondent failed to utilize a hazardous waste manifest when it shipped
Flammable Liquid, N.O.S. (mineral spirits, diesel fuel), UN 1993, PG III
totaling 18,300 gallons to Lone Star Buzzi Unicem in Greencastle, IN in September 2018 on bills
of lading.
e. Pursuant
to 40 CFR 262.15(a)(5)(i), a generator must mark or label its satellite hazardous
waste containers with the words “Hazardous Waste”.
As noted during the inspection, Respondent
failed to mark one (1) satellite accumulation container in the laboratory with
the words “Hazardous Waste.”
f. Pursuant
to 40 CFR
262.15(a)(5)(ii), a generator must mark or label its satellite hazardous waste
containers with an indication of the hazards of the contents.
As noted during the inspection, Respondent failed to mark one (1)
satellite accumulation container in the laboratory with the indication of its
hazards.
g. Pursuant to 40 CFR 262.16(b)(6)(i)(B), a small quantity generator may accumulate hazardous
waste on-site for 180 days or less without a permit, provided that, while being
accumulated on-site, each container 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 failed to
clearly mark one (1) hazardous waste tote located in the bucket room with an
indication of the contents.
h. Pursuant
to 40 CFR 262.16(b)(7) and 40 CFR 262.17(a)(9) referencing 40 CFR 268.7(a), a
generator must determine if a hazardous waste is restricted from land disposal
and if the waste has to be treated before being land disposed.
As noted during the inspection and
record review, Respondent failed to submit a land disposal restriction
notification form to Safety Kleen and place a copy in the Respondent’s files
when it shipped hazardous waste as a large quantity generator in the months of
October and November 2019 and August 2020.
Additionally, Respondent shipped
Flammable Liquid, N.O.S. (mineral spirits, diesel fuel), UN 1993, PG III
totaling 18,300 gallons to Lone Star Buzzi Unicem in
Greencastle, IN in September 2018 on bills of lading. Respondent should have
utilized a hazardous waste manifest and land disposal restriction notification
form.
8.
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. This Agreed
Order shall have no force or effect until the Effective Date.
2.
Respondent shall comply with the statutes and rules listed in the
findings of fact above.
3.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.11. Specifically, Respondent shall
submit to IDEM documentation verifying a proper waste determination has been
completed for the mineral spirits and diesel mixture.
4.
Within
thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR
262.13. Specifically, Respondent shall
determine its generator category based upon the amount of hazardous waste
generated monthly.
5.
Upon the Effective Date of the Agreed Order, Respondent
shall comply with 40 CFR 262.20 and IC 13-30-2-1(12). Specifically, Respondent
shall ensure any regulated hazardous waste offered for transportation is
accompanied by a uniform hazardous waste manifest designated to a permitted
treatment, storage, or disposal facility.
6.
Upon
the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR
262.15(a)(5)(i) and (ii). Specifically,
Respondent shall mark all satellite accumulation containers with the words
“Hazardous Waste” and the indication of the hazards of the contents.
7.
Upon
the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR
262.16(b)(6)(i)(B). Specifically, Respondent shall
mark all hazardous waste containers with the indication of the hazards of the
contents.
8. Upon
the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR
268.7(a). Specifically, Respondent shall ensure with the initial shipment of
hazardous waste (meeting or not meeting treatment standards) that a one-time
written notice is sent to each treatment, storage, and disposal facility
receiving the waste. Additionally, Respondent shall keep a copy of the written
notice on file.
9.
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 |
10.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Six
Thousand Eight Hundred Dollars ($6,800). Respondent shall pay a portion of this
penalty in the amount of One Thousand Three Hundred Sixty Dollars ($1,360). Respondent
shall pay by the due date printed on the Invoice, as attached.
Civil and stipulated penalties are
payable to the “Environmental Management Special Fund” by:
Mail:
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 |
Online:
Accounts Receivable is accepting
payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM.
Under Online Services, click Online Payment options and follow the prompts. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
Phone:
You may also call us at 317-234-3099 and
follow the instructions for Master Card, Visa or Discover payments. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
11.
In
lieu of payment to IDEM of the remaining civil penalty, Respondent shall, as a
Supplemental Environmental Project (SEP), make a cash payment of Five Thousand
Four Hundred Forty Dollars ($5,440) to the United States Environmental
Protection Agency to partially support the Great Lakes Legacy Act project
described in Subparagraph A. below. Respondent shall make such payment in
accordance with Subparagraphs F through G below. Timely, full payment to the
United States Environmental Protection Agency satisfies Respondent’s obligation
to undertake a SEP to offset a portion of the civil penalty assessed in this
matter.
A. The project to be partially supported by
the SEP lies within the Grand Calumet River / Indiana Harbor Ship Canal Great
Lakes Area of Concern (AOC) designated by the International Joint Commission.
Specifically, the project consists of sediment remediation and habitat
restoration in and adjacent to a 3.1-mile reach of the East Branch Grand
Calumet River (EBGCR) that extends from the most upstream boundary of either
the: (1) ConRail Bridge; or (2) the downstream
terminus of the US Steel sediment project (near the Gary Sanitary District
National Pollutant Discharge Elimination System permitted outfall) to Cline
Road.
B.
If, following deposit of the funds
pursuant to Subparagraphs F through G of this Agreed Order, IDEM determines
that the aforementioned Great Lakes Legacy Act project
is no longer viable, the agency reserves the right to apply the cash payment
described in Subparagraph A to another, similar Great Lakes Legacy Act project
within the Grand Calumet River / Indiana Harbor Ship Canal AOC.
C.
The implementation of this SEP will
benefit human health and the environment within the AOC by reducing exposure to
sediment contaminants, including PCBs, oil and grease, and heavy metals, via
direct contact and through the food chain. Remediation of contaminated
sediments is the key action that has been identified as needed to remove six of
the 12 remaining Beneficial Use Impairments (“BUIs”) negatively impacting the
AOC. These BUIs are:
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Restrictions on
fish and wildlife consumption
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Tainting of fish
and wildlife flavor
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Fish tumors or
other deformities
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Bird or animal
deformities or reproduction problems
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Degradation of
benthos (aquatic organisms that live on, in, or near the bottom of waterways)
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Restriction on
dredging activities.
D.
In addition to
the direct impacts on human health and the environment, remediation of
contaminated sediment at Great Lakes AOCs has been linked to economic growth
and revitalization at affected communities.
E.
Respondent agrees
to invoicing by the United States Environmental Protection Agency, for the full
amount of the SEP, via electronic mail sent to the following address: mtaylor@wolflakeinc.com.
F.
The Respondent
shall render payment via check to the United States Environmental Protection
Agency by the due date printed on the Invoice, which shall be no sooner than 30
days following the issuance of the Invoice. The Respondent shall include the
account number listed on the invoice in the memo line of the check. The check
shall be sent via Certified Mail or an equivalent shipping method utilizing
signed receipt confirmation, along with a printed copy of the invoice received
from the United States Environmental Protection Agency, to:
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U.S. Environmental Protection
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FOIA & Miscellaneous
Payments |
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Government Lockbox 979078 |
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1005 Convention Plaza |
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SL-MO-C2-GL |
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St. Louis, MO 63101 |
G.
Respondent
shall provide Complainant with: (1) documentation of payment, (2) a copy of the
invoice issued by the United States Environmental Protection Agency and (3) a
copy of this Agreed Order via Certified Mail within one (1) week of such
payment.
H.
In the event that
Respondent does not make its SEP payment to the United States Environmental
Protection Agency by the due date printed on the invoice, the full amount of
the civil penalty as stated in this paragraph, plus interest established by IC
24-4.6-1-101 on the remaining amount, less the portion of the civil penalty
Respondent has already paid, will be due to IDEM within fifteen (15) days from
Respondent’s receipt of IDEM’s notice to pay. Interest, at the rate established
by IC 24-4.6-1-101, shall be calculated on the amount due from the due date
printed on the invoice received from the United States Environmental Protection
Agency until the full civil penalty is paid.
12.
In
the event the terms and conditions of the following paragraphs are violated,
Complainant may assess and Respondent shall pay
stipulated penalties in the following amounts:
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$100
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13.
Stipulated
penalties shall be due and payable no later than the thirtieth day after
Respondent receives written notice that Complainant has determined a stipulated
penalty is due; the thirtieth 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 a 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.
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 an additional penalty of 10 percent, payable
to the “Environmental Management Special Fund”, and shall be payable to IDEM in
the manner specified in Paragraph 10, above.
15.
Signatories
to this Agreed Order certify that they are fully authorized to execute this
Agreed Order and legally bind the party they represent.
16.
This
Agreed Order shall apply to and be binding upon Respondent and all 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.
17.
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.
18.
Respondent
shall ensure that all contractors, firms, and other persons performing work
under this Agreed Order comply with the terms of this Agreed Order.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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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Jennifer
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Land
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COUNSEL FOR
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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
on 12/15/22 |
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Peggy
Dorsey |
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Assistant
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Office
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