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STATE OF INDIANA |
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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. 2023-29641-H |
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lakeshore railcar
& tanker services
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 Lakeshore Railcar & Tanker Services LLC (“Respondent”), which owned/operated
the facility with United States Environmental Protection Agency (“EPA”) ID No. IND981960313,
located at 1150 45th Street, in East Chicago, 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, on January 23, 2024, IDEM issued a Notice of Violation (“NOV”)
via certified mail to:
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Clint Morris,
General Manager |
Corporation
Service Company |
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Lakeshore Railcar
& Tanker Services LLC |
Registered Agent |
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1150 East 145th
Street |
Lakeshore Railcar
& Tanker Services LLC |
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East Chicago,
Indiana 46312 |
135 N.
Pennsylvania Street, Suite 1610 |
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Indianapolis,
Indiana 46204 |
5.
Respondent
notified EPA of Large Quantity Generator activities on May 21, 2023.
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 August 22, 2023, conducted by a representative of IDEM, the following violations were found:
a. Pursuant
to 40 CFR 262.17(a), a large quantity generator that accumulates hazardous
waste on site for more than 90 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 he has been granted an extension to the 90 day period.
As noted during the inspection, Respondent stored two (2) containers of
hazardous waste on-site for greater than 90 days without complying with 40 CFR
Part 264 and 40 CFR Part 270.
b. 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 hazardous waste storage activities. Specifically, Respondent
stored two (2) containers of hazardous waste on-site for greater
than 90 days.
c. 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 two (2) containers of hazardous waste on-site for greater
than 90 days.
d. Pursuant
to 40 CFR 262.17(a)(1)(ii), if a container holding hazardous waste is not in
good condition, or if it begins to leak, the large quantity generator must
immediately transfer the hazardous waste from this container to a container
that is in good condition, or immediately manage the waste in some other way
that complies with the conditions for exemption.
As noted during the inspection, Respondent stored hazardous waste in
one (1) container [Drum 94] that was not in good condition.
e. Pursuant
to 40 CFR 262.17(a)(1)(v), at least weekly, the large quantity generator must
inspect central accumulation areas. The large quantity generator must look for
leaking containers and for deterioration of containers caused by corrosion or
other factors.
As noted during the inspection, Respondent failed to conduct weekly
inspections of the 90-day central accumulation area for the week of February
19, 2023 and July 16, 2023.
f. Pursuant
to 40 CFR 262.17(a)(5)(i)(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 container is labeled or marked with an
indication of the hazards of the contents.
As noted during the inspection, Respondent accumulated seven (7)
hazardous waste containers on-site, without a permit, and did not label or
clearly mark containers with an indication of the hazards of the contents.
g. Pursuant
to 40 CFR 262.17(a)(5)(i)(C), a large quantity generator may accumulate
hazardous waste on-site for 90 days or less without a permit, provided that the
date when the accumulation begins is clearly marked and visible for inspection
on each container.
As noted during the inspection, Respondent accumulated hazardous waste
on-site, without a permit, and did not mark two (2) hazardous waste containers
with accumulation start dates.
h. Pursuant
to 40 CFR 262.17(a)(6) referencing 40 CFR 262.256(b), a large quantity
generator must attempt to make arrangements with local
emergency authorities to familiarize them with the facility.
As noted during the inspection, Respondent did not attempt to make arrangements with local emergency authorities.
i. Pursuant
to 40 CFR 262.17(a)(6) referencing 40 CFR 262.262(b), a large quantity
generator that first becomes subject to these provisions after May 30, 2017 or
a large quantity generator that is otherwise amending its contingency plan must at that time submit
a quick reference guide of the contingency plan to the local emergency
responders identified at paragraph (a) of this section or, as appropriate, the
Local Emergency Planning Committee. The quick reference guide must include:
(1) The types/names of hazardous wastes in layman’s terms and the associated
hazard associated with each hazardous waste present at any one time.
(2) The estimated maximum amount of each hazardous waste that may be present at any one time.
(3) The identification of any hazardous wastes where exposure would require unique or special treatment by medical or hospital staff.
(4) A map of the facility showing where hazardous wastes are generated, accumulated and treated and routes for accessing these wastes.
(5) A street map of the facility in relation to surrounding businesses, schools, residential areas to understand how best to get to the facility and also evacuate citizens and workers.
(6) The locations of water supply.
(7) The identification of on-site notification systems; and
(8) The name of the emergency coordinator(s) and 7/24-hour emergency telephone number(s) or, in the case of a facility where an emergency coordinator is continuously on duty, the emergency telephone number for the emergency coordinator.
As noted during the inspection, Respondent failed to have a quick
reference guide.
j. 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 accumulated hazardous waste
in one (1) container at or near the point of generation without a permit and
did not properly mark satellite accumulation containers with the words
“Hazardous Waste.”
k. Pursuant
to 40 CFR 262.15(a)(6), a
generator who accumulates either acute
hazardous waste
listed in §261.31 or §261.33(e) of this chapter or non-acute hazardous waste in excess of the amounts listed in paragraph (a) of this
section at or near any point of generation must do the following:
(i) Comply within three consecutive calendar
days with the applicable central accumulation area regulations in §262.16(b) or
§262.17(a), or
(ii) Remove the excess from the satellite
accumulation area within three consecutive calendar days to either:
(A) A central accumulation area operated in
accordance with the applicable regulations in §262.16(b) or §262.17(a);
(B) An on-site interim status or permitted
treatment, storage, or disposal facility, or
(C) An off-site designated facility; and
(iii) During the three-consecutive-calendar-day
period the generator must continue to comply with paragraphs (a)(1)
through (5) of
this section. The generator must mark or label the container(s) holding the
excess accumulation of
hazardous waste
with the date the excess amount began accumulating.
As noted during the inspection,
Respondent accumulated 65 (55-gallon) containers at a satellite accumulation
area [Deheel Pad] for greater than three (3) consecutive days.
8. On or before January 1, 2024,
Respondent transitioned to a railroad switching and transload facility and no
longer generates hazardous waste.
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. This
Agreed Order shall have no force or effect until the Effective Date.
2.
Immediately
upon the Effective Date, Respondent shall comply with 40 CFR 262.17(a);
IC 13-30-2-1(10); 40 CFR 270.1(c); 40 CFR 262.17(a)(1)(ii); 40 CFR
262.17(a)(1)(v); 40 CFR 262.17(a)(5)(i)(B); 40 CFR 262.17(a)(5)(i)(C); 40 CFR
262.15(a)(5)(i); and 40 CFR 262.15(a)(6).
3.
All
submittals required by this Agreed Order, unless IDEM notifies the Respondent
otherwise in writing, shall be sent to:
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Linda McClure, 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 |
4.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Eleven
Thousand Six Hundred Dollars ($11,600). 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 “Indiana Department of Environmental Management”
by:
Mail:
Civil penalties are payable by check to the “Indiana Department of
Environmental Management.” 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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P.O. Box 3295 |
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Indianapolis, IN
46206 |
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 $0.40 plus 2.06% will be
charged for credit card payments. A processing fee of $0.15 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 $0.40 plus 2.06%
will be charged for credit card payments. A processing fee of $0.15 will
be charged for eCheck payments.
The Case Number is required to complete the process.
5.
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 “Indiana Department of Environmental Management,” and shall
be payable to IDEM in the manner specified in Paragraph 4, above.
6.
Signatories
to this Agreed Order certify that they are fully authorized to execute this
Agreed Order and legally bind the party they represent.
7.
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.
8.
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.
9.
Respondent
shall ensure that all contractors, firms, and other persons performing work
under this Agreed Order comply with the terms of this Agreed Order.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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: |
RESPONDENT: |
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Department of
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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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Date: |
2/21/2024 |
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COUNSEL FOR
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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 3/5/2024 |
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Peggy Dorsey |
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Assistant
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