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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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COUNTY OF MARION |
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2023-29164-H |
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TRADEBE TREATMENT
AND RECYCLING, 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 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 Tradebe Treatment and Recycling, LLC (“Respondent”), which owns and operates
the facility with U.S. EPA ID No. IND000646943, located at 4343 Kennedy Avenue,
in East Chicago, Lake County, Indiana (“Site”).
3. Respondent has a RCRA permit (“Permit”), which authorizes Respondent, as the permittee, to conduct storage and treatment activities at this Site. Respondent operates as a large quantity generator of hazardous waste pursuant to a Permit dated April 28, 2017 (modified December 17, 2018). A RCRA Permit renewal application was submitted on October 28, 2021 [VFC# 83236773] and remains under review.
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”) via Certified Mail
to:
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Robert O’Brien,
Manager |
Corporation
Service Company, Registered Agent |
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Tradebe Treatment
and Recycling, LLC |
Tradebe Treatment
and Recycling, LLC |
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1433 E. 83rd
Ave., Suite 200 |
135 North
Pennsylvania Street, Suite 1610 |
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Merrillville, IN
46410 |
Indianapolis, IN
46204 |
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Tita LaGrimas |
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VP Regulatory
Affairs and Sustainability |
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Tradebe Treatment
and Recycling, LLC |
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1433 East 83rd
Avenue, Suite 200 |
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Merrillville, IN
46410 |
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6. 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 December 5, 2022 [VFC# 83421274], conducted by a representative of IDEM, the following violations were found:
a. Pursuant
to 40 CFR 264.171 and Permit Condition III.C., if a container holding hazardous
waste is not in good condition (e.g., appreciable rusting, apparent structural
defects) or if it begins to leak, the Permittee must transfer the hazardous
waste from such container to a container that is in good condition or otherwise
manage the waste in compliance with the conditions of the permit.
As noted during the inspection, Respondent had eighteen (18) containers
of hazardous waste that were not stored in good condition.
b. Pursuant
to Permit Condition III. E. c., containers of 30 gallons or more must be stored
so that they can be inspected for leaks and for deterioration caused by
corrosion or other factors, without having to move the containers during the
inspection and must have adequate aisle space between rows (approximately 2 ½
feet) to facilitate inspection.
As noted during the inspection, there was inadequate aisle space
between container rows in Area 7 North Apron and Area 3.
c. Pursuant
to Permit Condition III.E.2.a. and Attachment D, Table D-1, containerized
hazardous waste or hazardous secondary materials either being transferred from
one permitted unit to another (such as from container storage to tank storage)
or being removed from one permitted unit followed by replacement back into that
same unit shall remain outside of permitted units only for the minimum time
necessary to either transfer the containers to a different storage unit or to
remove the containers, perform the activities that required the staging to
occur, and return the containers to a permitted storage unit. In no instance
shall this time period exceed 12 hours. The containers will be managed in
accordance with applicable conditions in Attachment D of the permit.
Documentation of container movement from a permitted storage area to a staging
area followed by placement into a permitted storage area will include: the
identification of the container, the date of movement, the time the first
container was removed from permitted storage, the location of the staging area,
and the time the first container was removed from the staging area and placed
into permitted storage. This documentation shall be maintained for 30 days.
As noted during the inspection, Respondent allowed twenty-three (23)
containers of hazardous waste to exceed the 12-hour time period for container
transfer/movement between permitted areas and did not manage the twenty-three
(23) containers in accordance with Attachment D; Respondent stored liquid
containers in solid only permitted units. In addition, Respondent was unable to
provide documentation of container movement, to include dates of placement in
permitted storage areas [staging log].
d. Pursuant
to 40 CFR 264.173(b) and Attachment D, Permit Condition D-1a(2).M.1.c., TRADEBE
will manage DOT-approved containers of various sizes, shapes, and capacities.
These containers can be arranged in various configurations within the limits of
the storage areas. Stored containers may be stacked as specified in this
permit, provided the configurations allow for inspection for leaks and provide
adequate aisle space between containers/pallets. Containers must be stacked in
stable configurations (i.e., container(s) will not readily fall off of the
pallet or damage the integrity of the containers or supporting structure).
As noted during the inspection, Respondent stored containers in
unstable configurations in Area 7 North Apron, Area 6, Area 7 East Apron, and
Area 11.
e. Pursuant
to 40 CFR 264.177(c), a storage container holding a hazardous waste that is
incompatible with any waste or other materials stored nearby in other
containers, piles, open tanks, or surface impoundments must be separated from
the other materials or protected from them by means of a dike, berm, wall, or
other device.
Pursuant to Permit Condition III.I.3, the Permittee must separate
containers of incompatible wastes as indicated in the Process Information,
Attachment D.
Pursuant to Attachment D, Permit Condition D-la (2).A., TRADEBE will
evaluate the chemical and physical analyses of the hazardous waste and
hazardous debris to be handled at the facility, pursuant to 40 CFR
270.14(b)(2). The laboratory will evaluate the compatibility characteristics of
the waste with the container in accordance with the Waste Analysis Plan
(Attachment C). Hazardous waste will be placed into permitted storage areas and
chemically incompatible wastes and materials will be segregated to comply with
40 C.F.R. §264.177.
Pursuant to Attachment D, Permit Condition D-1a (2).M.1.h., for
containers located next to the berms separating areas used to store
incompatible wastes in Areas 5 and 6, stacking of individual containers on top
of another container is permissible only on the following conditions:
i. the
stacked containers are compatible with material in the adjacent sub-area,
ii. incompatible
materials are not store in adjacent sub-area, or
iii. a
barrier has been installed (e.g., netting, fence) that will prevent the upper
container from falling into the adjacent sub-area.
As noted during the inspection, Respondent stored incompatible
hazardous waste together without meeting the separation/barrier requirements;
specifically, oxidizer waste was stored with flammable waste in Area 4 South
Apron, Area 6, Area 7 North Apron, and Area 7A-2.
f. Pursuant
to 40 CFR 264.73(b)(2), the following information must be recorded, as it
becomes available, and maintained in the operating record for three years
unless noted as follows: the location of each hazardous waste within the
facility and the quantity at each location. For disposal facilities, the
location and quantity of each hazardous waste must be recorded on a map or
diagram that shows each cell or disposal area. For all facilities, this
information must include cross-references to manifest document numbers if the
waste was accompanied by a manifest. This information must be maintained in the
operating record until closure of the facility.
Pursuant to Attachment D, Permit Condition D-1a(2).I., containers will
be marked, or re-marked, as information becomes available, pursuant to 40 CFR
264.73(b). Containers that are accepted by TRADEBE will be marked with a
container specific identification number or symbol. The purpose of the marking
is for internal tracking of the container for TRADEBE's operating records.
As noted during the inspection, and as required by Respondent’s
operating record, Respondent failed to mark five (5) accepted containers with a
container specific identification number or symbol (internal Tradebe acceptance
or pre-code label).
g. Pursuant
to 40 CFR 264.173(a) and Permit Condition III.E.1.a., a container holding
hazardous waste must always be closed during storage, except when it is
necessary to add or remove waste.
As noted during the inspection, Respondent failed to store seven (7)
containers of hazardous waste closed.
h. Pursuant
to Attachment D, Permit Condition D-1a(2).X., containers containing ignitable
or reactive waste, with the exception of rail cars, may not be located within
50 feet of the property line of the facility, refer to Drawing B-397r316J.
As noted during the inspection, Respondent stored three (3) containers
of ignitable waste in Area 7 East Apron within 50-feet of the property boundary
line.
i. Pursuant
to Attachment D, Permit Condition D-1a(2).J.,
containers that require a protection of a dry chemical
fire suppression system (based on the waste profile) and will be placed in the
northwest sections of Area 6. These areas are equipped with a fire suppression
system for water reactive wastes.
As noted during the inspection, Respondent stored two (2) containers,
requiring dry chemical fire suppression, outside of Area 6.
j. Pursuant
to 40 CFR 270.30(i)(2) and Permit Condition I.8.b., the Permittee shall allow
the Commissioner, or an authorized representative, upon the presentation of
credentials and other documents as may be required by law, to have access to
and copy, at reasonable times, any records that must be kept under the
conditions of the permit.
As requested during the inspection, Respondent failed to provide
inbound and outbound truck logs and manifest copies.
k. Pursuant
to Permit Condition III.E.2. (b), the Permittee shall ensure that transport
vehicles loaded with non-processed hazardous waste for shipment off-site leave
the facility (or contiguous property controlled by the Permittee) within 72
hours of the time the hazardous waste is first moved out of permitted storage
areas for loading onto the transport vehicle. If the shipment is cancelled, the
waste must be placed back into permitted storage within the original 72-hour
period.
The Permittee will document the time the first container is placed into
an outbound trailer. The document identifying the time will be attached to a
copy of the outbound manifest and placed inside the loaded trailer.
As noted during the inspection, Respondent failed to document the time
the first container was placed in outbound Trailer #53R16001.
l. Pursuant
to 40 CFR 262.17(a)(1), a large quantity generator may accumulate hazardous
waste on site without a permit or interim status, and without complying with
the requirements of parts 124, 264 through 267, and 270 of this chapter, or the
notification requirements of section 3010 of RCRA, provided
that all of the following conditions for exemption are met:
(a) Accumulation.
A large quantity generator accumulates hazardous waste on site for no more than
90 days, unless in compliance with the accumulation time limit extension or
F006 accumulation conditions for exemption in paragraphs (b) through (e) of
this section. The following accumulation conditions also apply:
(1) Accumulation
of hazardous waste in containers. If the hazardous waste is placed in
containers, the large quantity generator must comply with 40 CFR
262.17(a)(1)(i) through (vii).
As noted during the inspection, hazardous waste was identified outside
of appropriate containers around SDS1 and SDS2 (char), in Area 3 (unknown
waste), in Area 7 East Apron, and near the rail cars.
m. Pursuant
to Permit Condition III.F., the Permittee must construct, operate, and maintain
the containment system as specified in Process Information, Attachment D, which
is incorporated herein by reference.
Pursuant to Attachment D, Permit Condition D-1a (3)(e), within 24 hours
of detection, TRADEBE shall remove accumulated liquids from the containment
areas, or, if it cannot, it shall notify IDEM with an explanation, and remove
accumulated liquids within 48 hours of detection and as necessary to prevent
overflow of the collection system.
Pursuant to Attachment D, Permit Condition D-2d(1)(b) E, surface areas
will be maintained free of gaps and cracks.
As noted during the inspection, Respondent failed to remove liquids
from containment areas (sumps) for over 24 hours in Area 3, Area 6 Rack Room,
Area 2 Dock, and Area 11. In addition, the secondary containment in Area 2 had
visible cracks in the surface.
n. Pursuant
to 40 CFR 262.20(a)(1), a generator that transports, or offers for transport a
hazardous waste for offsite treatment, storage, or disposal, or a treatment,
storage, or disposal facility that offers for transport a rejected hazardous
waste load, must prepare a Manifest (OMB Control number 2050-0039) on EPA Form
8700-22, and, if necessary, EPA Form 8700-22A.
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.
Pursuant to 329 IAC 3.1-1-13, the commissioner shall require the use of
identification numbers issued by the U.S. Environmental Protection Agency.
As noted during the December 5, 2022 Site inspection and the December
6, 2022 inspection of the Tradebe Transportation LLC 10-day transfer facility
(“Marport”), Respondent, allowed the transportation of six (6) rail cars (with
heels, “non-RCRA empty”) offsite to the rail spur at Marport without a
manifest. Five (5) of the cars were located on the Marport property and one (1)
rail car was located between the two properties on the same rail spur. Respondent
utilizes this area as a generator accumulation area, but this is not indicated
in Respondent’s RCRA permit nor is the area indicated on Respondent’s facility
map.
o. Pursuant
to Attachment D, Permit Condition D-1a [Container Receiving], incoming
hazardous waste from an off-site generator shall be placed in permitted units
within 72 hours, not including non-operating days, upon entering the facility
boundary (or contiguous property controlled by the permittee) unless the
permittee rejects all or part of an incoming shipment.
As noted during the inspection, Respondent allowed ten (10) incoming
hazardous waste containers, with free liquids, from an outside generator to be
stored outside of a permitted unit for greater than 72 hours.
p. Pursuant
to Permit Condition I.D.10, the Permittee shall give notice to the Commissioner
as soon as possible of any planned physical alterations or additions to the
permitted facility. 329 IAC 3.1-13; 40 CFR 270.30(1)(1).
As detailed during the March 20, 2023 meeting, Respondent improved a
section of property contiguous to the Site to utilize a rail spur as a
generator accumulation area to store rail cars holding hazardous waste. The
rail spur improvements are owned by Respondent; the property on which the rail
spur is situated is contiguous with the Site and is leased from a third party
that is not affiliated with Respondent and shares no corporate relationship
with Respondent. The rail spur exits the facility on the northeast side of the Site
onto property leased by Respondent.
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 statute, rules and permit conditions listed in the
findings of fact above.
3.
Within Thirty (30) days of the Effective Date,
Respondent shall submit a draft Class 1 permit modification to IDEM for review.
The draft modification must update the facility description and all facility
maps to include the rail spur as a generator accumulation area.
4.
Within Thirty (30) days of IDEM approval of the
draft Class 1 modification, Respondent shall submit a complete Class 1 Permit Modification
consistent with the approved draft. Upon approval of the Class I permit
modification required under this paragraph, the requirements outlined in
subparagraph n. of this order will not apply to movement of rail cars on the
rail spur containing Tradebe generated waste, rejected or off-spec fuel
blending loads, or residual heels (non-RCRA empty rail cars).
5.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Thirty-Eight
Thousand One Hundred Eighty-Eight Dollars ($38,188). 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.
6.
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 3, above.
7.
Signatories
to this Agreed Order certify that they are fully authorized to execute this
Agreed Order and legally bind the party they represent.
8.
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.
9.
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.
10.
Respondent shall ensure that all contractors, firms, and other
persons performing work under this Agreed Order comply with the terms of this
Agreed Order.
11.
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.
12.
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.
13.
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.
14.
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 violation specified in the
NOV.
15.
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.
16.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
REMAINDER OF PAGE LEFT BLANK
INTENTIONALLY
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TECHNICAL RECOMMENDATION: Department of Environmental
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Jennifer Reno,
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Land Enforcement
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Compliance Branch |
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Office of Land
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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
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Signed March 19,
2024 |
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Peggy Dorsey |
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Assistant Commissioner |
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Office of Land
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