STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

)

 

 

 

)

 

Complainant,

 

)

 

 

 

)

 

 

v.

 

)

Case No. 2022-28939-H

 

 

)

 

brenntag great lakes, 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 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”) via Certified Mail to:

 

Brenntag Great Lakes, LLC

Attn: Christian Kohlpaintner, CEO

C T Corporation System, Registered Agent for Brenntag Great Lakes, LLC

5083 Pottsville Pike

334 North Senate Avenue

Reading, PA 19605

Indianapolis, IN 46204

 

5.               Respondent notified EPA of Conditionally Exempt Small Quantity Generator activities in 2015.

 

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 October 29, 2021, conducted by a representative of IDEM, the following violations were found:

 

a.     Pursuant to 40 CFR 262.11(a), a person who generates a solid waste must determine if that waste is a hazardous waste at the point of generation.

 

As noted during the inspection, Respondent did not make hazardous waste determinations on seven (7) 55-gallon containers of expired/unusable materials at the point of generation. Labels visible on the drums indicated that there were three (3) 55-gallon drums of Crown L 60B-NF, two (2) 55-gallon drums of COAG Clear 3110C, and one (1) 55-gallon drum of Cyclohexylamine. Subsequent to the inspection, Respondent indicated in correspondence date August 23, 2022, that the Crown L 60B-NF could continue to be utilized. Respondent transferred the COAG Clear 3110C and Cyclohexylamine to the Milwaukee facility, where it was determined the materials would be disposed.

 

On February 13, 2023, Respondent provided hazardous waste manifests to document disposal of the waste.

 

b.     Pursuant to 329 IAC 3.1-6-2(2), Respondents in actions to enforce regulations implementing IC 13 who raise a claim that a certain material is not a solid waste, or is conditionally exempt from regulation, must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption. In doing so, they must provide appropriate documentation to demonstrate that the material is not a waste or is exempt from regulation. In addition, owners or operators of facilities claiming that they actually are recycling materials must show that they have the necessary equipment to do so.

 

As noted during the inspection, Respondent stored seven (7) 55-gallon containers of expired/unusable materials. Labels visible on the drums indicated that there were three (3) 55-gallon drums of Crown L 60B-NF, two (2) 55-gallon drums of COAG Clear 3110C, and one (1) 55-gallon drum of Cyclohexylamine. Documentation was not available to demonstrate that the material is not a waste or is exempt from regulation at the time of the inspection nor subsequent to the inspection. Respondent indicated in correspondence date August 23, 2022, that the COAG Clear 3110C and Cyclohexylamine were transferred to the Milwaukee facility, where it was determined the materials would be disposed.

 

On February 13, 2023, Respondent provided hazardous waste manifests to document disposal of the waste.

 

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 a record review, Respondent transported hazardous waste for offsite treatment, storage, or disposal without preparing manifest. Respondent transported small quantity generator quantities of hazardous waste to its facility located in Milwaukee, Wisconsin.

 

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 record review, Respondent transported hazardous waste for offsite treatment, storage, or disposal without preparing manifest.  Respondent transported small quantity generator quantities of hazardous waste to its facility located in Milwaukee, Wisconsin.

 

e.     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.  Respondent operated as a large quantity generator of hazardous waste in 2020 and a small quantity generator of hazardous waste in June 2021 without updating their generator status.

 

On February 16, 2023, Respondent notified of large quantity generator activities in 2020 and small quantity generator activities for 2021.

 

f.      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 large and small quantity generator activities and treatment, storage, and disposal facility activities. Specifically, Respondent operated as a large quantity generator of hazardous waste in 2020 and a small quantity generator of hazardous waste in June 2021 without notifying of the generator status change. Respondent failed to notify of hazardous waste storage activities when 150 gallons of hydrochloric acid waste was stored greater than 180 days.

 

On February 16, 2023, Respondent notified of large quantity generator activities in 2020 and small quantity generator activities for 2021.

 

g.     Pursuant to IC 13-22-4-3.1(c), a hazardous waste large quantity generator (LQG), i.e., a person that generates, in any one or more calendar months of a calendar year:

 

a)          more than one thousand (1,000) kilograms of hazardous waste;

b)          at least one (1) kilogram of acute hazardous waste; or

c)          at least one hundred (100) kilograms of material from the cleanup spillage of acute hazardous waste; or

 

accumulates at least six thousand (6,000) kilograms of hazardous waste or at least one (1) kilogram of acute hazardous waste shall, before March 1 of each year, submit to the department either the biennial report concerning the person's waste activities during the previous calendar year, or an annual report on forms provided by the department, that summarizes the person's hazardous waste shipments during the previous calendar year.  LQGs are required to submit the Hazardous Waste Biennial Report by March 1 of each even numbered year and the IDEM annual manifest report by March 1 of each odd numbered year.

 

As noted during the inspection, Respondent changed generator status to a large quantity generator in 2020. Respondent failed to submit an annual manifest report by March 1, 2021.

 

On February 16, 2023, Respondent submitted the required annual report for 2020.

 

h.     Pursuant to 40 CFR 262.16(b), a generator who accumulates hazardous waste on site for more than 180 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 Part 270 unless granted an extension to the 180-day period.

 

As noted during the inspection, Respondent stored hazardous waste on-site for greater than 180 days without complying with 40 CFR Part 264 and 40 CFR Part 270. Specifically, Respondent stored 150 gallons of hydrochloric acid for greater than 180 days.

 

i.      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. Specifically, Respondent stored 150 gallons of hydrochloric acid for greater than 180 days

without obtaining a RCRA Part B TSD Permit.

 

j.      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 stored hazardous waste identified or listed in 40 CFR Part 261 without a permit. Specifically, Respondent stored 150 gallons of hydrochloric acid for greater than 180 days without obtaining a RCRA Part B TSD Permit.

 

k.     Pursuant to 40 CFR 261.4(c), a hazardous waste which is generated in a manufacturing process unit, is not subject to regulation under parts 262 through 265, 268, 270, 271 and 124 of this chapter or to the notification requirements of section 310 of RCRA until it exits the unit in which it was generated, unless the hazardous waste remains in the unit more than 90 days after the unit ceases to be operated for manufacturing.

 

As noted during the inspection, Respondent stored hydrochloric acid for greater than 90 days after a product tank was taken out of service. Specifically, a hydrochloric acid tank suffered catastrophic damage on June 29, 2020. Hydrochloric acid was not removed from the unit until June 28, 2021.

 

l.      Pursuant to 40 CFR 262.16(b)(8)(i), a small quantity generator must maintain and operate its facility to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of a hazardous waste or hazardous waste constituents to air, soil, or surface water, which could threaten human health or the environment.

 

As noted during the inspection, Respondent failed to properly manage hydrochloric acid to minimize a release to the environment. Specifically, an outdoor hydrochloric acid tank suffered catastrophic damage on June 29, 2020. The damaged tank continued to contain 150 gallons of hydrochloric acid that was not removed from the unit until June 28, 2021.

 

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.       Upon the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR 262.11(a). Specifically, Respondent shall conduct waste determinations at the point of generation.

 

4.       Within fifteen (15) days of the Effective Date, 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.

 

5.       Upon the Effective Date of the Agreed Order, Respondent shall comply with 329 IAC 3.1-6-2(2). Specifically, Respondent shall demonstrate that there is a known market or disposition for quarantined materials. Respondent must maintain appropriate documentation to demonstrate that quarantined materials are not waste or is exempt from regulation.

 

6.       Upon the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR 262.13. Specifically, Respondent shall determine their generator category on a monthly basis.

 

7.       Within fifteen (15) days of the Effective Date, Respondent shall comply with 40 CFR 262.16(b), IC 13-30-2-1(10), and 40 CFR 270.1(c). Specifically, Respondent shall not accumulate hazardous waste for more than 180 days unless an extension has been granted to the timeframe for as long as it remains a small quantity generator of hazardous waste.

 

8.       Within fifteen (15) days of the Effective Date, Respondent shall comply with 40 CFR 261.4(c). Specifically, Respondent shall not store hazardous waste for greater than 90 days in a manufacturing process unit once the unit ceases to be operated for manufacturing.

 

9.       Within fifteen (15) days of the Effective Date, Respondent shall comply with 40 CFR 262.16(b)(8)(i). Specifically, Respondent shall maintain and operate its facility to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of a hazardous waste or hazardous waste constituents to air, soil, or surface water, which could threaten human health or the environment.

 

10.     All submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent to:

 

Debbie Chesterson, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

Office of Land Quality100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.     Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Eleven Thousand Fifty Dollars ($11,050). After this Agreed Order is adopted (signed by the Assistant Commissioner of the Office of Land Quality), Respondent shall pay by the due date printed on the Invoice that will be attached to the adopted Agreed Order.

 

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:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

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.

 

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:

 

Paragraph

Stipulated Penalty

Order paragraph 4

$100 per week

Order paragraph 5

$100 per week

Order paragraph 6

$100 per week

Order paragraph 8

$100 per week

Order paragraph 9

$100 per week

 

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 11, 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.

 

 

 

REMAINDER OF PAGE LEFT BLANK INTENTIONALLY

 

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

 

 

By:

 

 

By:

 

 

Jennifer Reno, Chief

Printed:

 

 

Land Enforcement Section

Title:

 

 

Compliance Branch

 

 

 

Office of Land Quality

 

 

Date:

 

2/23/2023

 

Date:

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

By:

 

 

 

Printed:

 

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 20_____

 

 

 

 

 

 

For the Commissioner:

 

 

 

Signed on 03/02/23

 

 

 

 

 

 

 

 

Peggy Dorsey

 

 

Assistant Commissioner

 

 

Office of Land Quality