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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. 2024-29946-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 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, 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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Kaoni Rhodes, Manager Brenntag
Great Lakes, LLC |
Corporation Service Company, Registered
Agent for Brenntag Great Lakes, LLC |
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4420
North Harley Davidson Avenue Wauwatosa,
WI 53225 |
135
North Pennsylvania Street, Suite 1610 Indianapolis,
IN 46204 |
5.
Respondent notified EPA of Large Quantity
Generator activities on February 16, 2023 and
subsequentially updated to Non-Handler activities on
September 20, 2023.
6.
Respondent was formerly
a wholesale distributor of chemicals at this Site.
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 June 20, 2023, conducted by a representative of IDEM, the
following violations were found:
a.
Pursuant
to 40 CFR 262.11(a), a person who generates solid waste must determine if that
waste is a hazardous waste at the point of generation.
As noted
during the inspection, Respondent failed to make hazardous waste determinations
on wastes generated during the clean-up of containment
areas, tanks, and process equipment as part of the facility closure in November
2022. Waste from the clean-up activities, waste residuals left in process
equipment and many small containers storing various chemicals collected
throughout the building, including the laboratory, were stored onsite.
On
October 9, 2023, Respondent submitted manifests documenting disposal.
b.
Pursuant
to 40 CFR 262.17(a)(8), a large quantity generator accumulating hazardous wastes in containers, tanks, drip pads, and containment
buildings prior to closing a unit at the facility, or prior to closing the
facility, must meet the following conditions:
(i)
Must place a notice in the operating record
within 30 days after closure or meet the closure performance standards of
262.17(a)(8)(iii).
(ii) Notify EPA using
form 8700-12 no later than 30 days prior to closing the facility or notify
EPA using form 8700-12 within 90 days after closing the facility that it has
complied with the closure performance standards of 40 CFR 262.17(a)(8)(iii) or
(iv).
As noted during the inspection,
Respondent failed to submit notification of closure using form 8700-12.
On March 4, 2024, Respondent submitted a
closure notification for the September 20, 2023 closure.
c.
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 hazardous waste on-site for greater than 90 days without complying with
40 CFR Part 264 and 40 CFR Part 270. Specifically, Respondent stored numerous
containers of D and U listed hazardous waste beyond the 90-day period.
Respondent ceased operations in November 2022 and shipped the waste off-site in
August 2023.
On October 9,
2023, Respondent submitted manifests documenting disposal.
d. 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 numerous containers of D and U
listed hazardous waste without obtaining a permit. Respondent ceased operations
in November 2022 and shipped the waste off-site in August 2023.
On October 9, 2023, Respondent submitted
manifests documenting disposal.
e.
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 numerous containers of D and U listed
hazardous waste without obtaining a permit. Respondent ceased operations in
November 2022 and shipped the waste off-site in August 2023.
On October 9, 2023, Respondent submitted
manifests documenting disposal.
f.
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
central accumulation areas.
g.
Pursuant
to 40 CFR 262.17(a)(5)(i)(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 container 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
hazardous waste containers with the words "Hazardous Waste."
h.
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 hazardous waste on-site, without
a permit, and did not label or clearly mark containers with an indication of
the hazards of the contents.
i.
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 hazardous waste containers with accumulation start dates.
j.
Pursuant
to 40 CFR 262.17(a)(6) referencing 40 CFR 262.260, a generator must have a
contingency plan for the facility.
As noted
during the inspection, Respondent failed to maintain an onsite contingency
plan.
k.
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 maintain an onsite quick reference
guide.
l.
Pursuant
to 40 CFR 262.42(a)(2) and 329 IAC 3.1-7-2, a large
quantity generator must submit an Exception Report to the EPA Regional
Administrator if he has not received a copy of the manifest with the
handwritten signature of the owner or operator of the designated facility
within 45 days of the date the waste was accepted by the initial transporter.
As noted during the inspection,
Respondent failed to submit an Exception Report for manifest 023993443 JJK
received by the initial transporter on August 2, 2023, and signed by the
destination facility on October 5, 2023. Respondent did not receive a copy of
the manifest with the handwritten signature from the designated facility within
45 days of the date the waste was accepted by the initial transporter.
m. Pursuant to 40 CFR 262.17(a)(2)
referencing 40 CFR 265.190, if waste is placed in tanks, the large quantity
generator must comply with the applicable requirements of Subpart J. The
requirements of Subpart J apply to owners and operators of facilities that use
tank systems for storing or treating hazardous waste except as otherwise
provided in paragraphs (a), (b), and (c) of this section or in § 265.1 of this
part.
As noted
during the inspection, Respondent left residual waste in tanks from which
usable products were removed between August and November 2022. The business
operations at the site ceased in November 2022. Respondent
did not finish removing residual wastes in tanks until
August 2, 2023. The tanks were left with residual product
for greater than 90-days making the tanks subject to Subpart J requirements.
The tanks did not comply with all Subpart J requirements and previously stored
ferric chloride, sodium hypochlorite, hydrogen peroxide, sulfuric acid, and
DEF.
9.
Orders
of the Commissioner are subject to administrative review by the Office of Adinistriative Law Proceedings 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 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. Specifically, Respondent shall
complete waste determinations at the point of generation.
4.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.17(a), IC
13-30-2-1(10), and 40 CFR 270.1(c). Specifically, Respondent shall not
accumulate hazardous waste for more than 90 days unless an extension has been
granted to the timeframe for as long as it remains a large quantity generator
of hazardous waste.
5.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.17(a)(1)(v). Specifically, Respondent
shall inspect central accumulation areas as long as
Respondent remains a large quantity generator of
hazardous waste.
6.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.17(a)(5)(i)(A).
Specifically, Respondent shall label or clearly
mark hazardous waste containers with the words "Hazardous Waste."
7.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.17(a)(5)(i)(B). Specifically,
Respondent shall label or
clearly mark containers with an indication of the hazards of the contents.
8.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.17(a)(5)(i)(C).
Specifically, Respondent shall
mark hazardous waste containers with accumulation start dates.
9.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.260.
Specifically, Respondent shall develop and maintain a contingency plan
for as long as Respondent remains a large quantity
generator of hazardous waste.
10.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.17(a)(6) referencing 40 CFR 262.262(b).
Specifically, Respondent shall
maintain an onsite quick reference
guide for as long as Respondent
remains a large quantity generator of hazardous waste.
11.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.42(a)(2) and 329 IAC 3.1-7-2.
Specifically, Respondent shall submit exception reports when required.
12.
Upon
the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR 262.17(a)(2) referencing 40 CFR
265.190. Specifically,
Respondent shall comply with Subpart J requirements.
14.
Within sixty (60) days of the Effective Date of this
Agreed Order, Respondent shall submit to IDEM a hazardous waste closure plan
for the rack storage area in the warehouse, blending and acid rinse tanks
inside the building’s southeast corner, the room located between the storage
racks in the warehouse and the southwest dock, and the outdoor tank farm area for
approval. Contact the case manager for how to submit the closure plan. The closure plan shall be completed in
accordance with the provisions of 40 CFR 264 Subpart G, as incorporated by 329
IAC 3.1-9-1.
15.
Within thirty (30) days of notice of IDEM’s approval
of the closure plan, Respondent shall implement the
plan as approved and in accordance with the time frames contained therein.
16.
In
the event IDEM determines that any plan submitted by Respondent is deficient or
otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM
in accordance with IDEM's notice. After three (3) submissions of such plan by
Respondent, IDEM may modify and approve any such plan and Respondent must
implement the plan as modified by IDEM. The approved plan shall be incorporated
into this Agreed Order and shall be deemed an enforceable part thereof.
17.
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 |
18.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Fifty-Eight
Thousand Four Hundred Thirty-Eight Dollars ($58,438). 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.
19.
In
the event the terms and conditions of the following paragraphs are violated,
Complainant may assess, and Respondent shall pay a stipulated penalty in the
following amount:
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Paragraph |
Stipulated Penalty |
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Order
paragraph 14 |
$500
per week |
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Order
paragraph 15 |
$500
per week |
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Stipulated
penalties shall begin to be assessed on the date after the Effective Date and
shall continue until the documentation is submitted as required by the
associated paragraph.
20.
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; at
which time, a separate invoice will be issued. 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.
21.
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 18, above.
22.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
23.
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.
24.
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.
25.
Respondent shall
ensure that all contractors, firms, and other persons performing work under
this Agreed Order comply with the terms of this Agreed Order.
26.
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.
27.
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.
28.
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.
29.
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.
30.
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.
31.
This
Agreed Order shall remain in effect until IDEM issues
a Resolution of Case letter to Respondent.
REMAINDER
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Department
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Jennifer
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4/25/2025 |
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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
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Signed
on 06/20/25 |
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Brian
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Assistant
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