STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS:
COUNTY OF MARION ) OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)CAUSE NO. H-13524 or 1997-8236-H
v. )
)
CITIZENS GAS & COKE UTILITY, )
)
Respondent. )
)
The Complainant and the 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 IC 13-30-3-3, entry into this agreement does not
constitute an admission of any violation contained herein.
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of
the Indiana Department of Environmental Management, a department of the State
of Indiana created by IC 13-13-1-1.
2. Respondent is Citizens Gas & Coke Utility (hereinafter referred to as
"Respondent"), which is a company doing business at 2950 Prospect Street,
located in Indianapolis, Indiana. The U.S. EPA I.D. number of the facility is IND
006421549.
3. The Indiana Department of Environmental Management (hereinafter referred to as
"IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail
to:
Mr. Martin C. Dusel Mr. John E. Havard
Executive Vice President Superintendent of Env. Services
Citizens Gas & Coke Utility Citizens Gas & Coke Utility
2020 North Meridian Street 2950 Prospect Street
Indianapolis, IN 46202 Indianapolis, IN 46203
5. Respondent manufactures metallurgical-grade coke for use at foundries and steel
mills. In addition, Respondent mixes filtered coke oven gas with natural gas for
sale to the general public. Hazardous wastes generated from these activities
include hazardous waste codes D002, D003, D018, D026, D038, K141 and K142.
6. The IDEM contends that the following violations were in existence or observed
by staff of the Office of Land Quality (OLQ) of IDEM during inspections of the
facility conducted on March 21, 25, 26 and 31, 1997. In addition to these
contentions of IDEM, the Findings of Fact contained herein include information
submitted to IDEM by Respondent subsequent to the inspections.
Pursuant to IC 13-30-2-1, no person may discharge, emit, cause, allow, or
threaten to discharge, emit, cause, or allow any contaminant or waste,
including any noxious odor, either alone or in combination with
contaminants from other sources into the environment in any form that
causes or would cause pollution in violation of 40 CFR 265.31. Based on
information gathered by the IDEM, Respondent allowed the release of
contaminants into the environment. These releases include, but are not
limited to, the following:
1. Release of soil around the bermed concrete pad that contains the
fuel oil unloading station and the soil on the pad itself appeared to
be contaminated with fuel oil;
2. Soil in front of the concrete containment for the E&H decanters
was contaminated with coal tar sludge (hazardous waste code
K087); and
3. The wastes stored on the recycling center oxide pad were not being
managed to prevent a release to the environment.
Pursuant to IC 13-30-2-1(10) and 40 CFR 270.1(c), a person may not
commence or engage in the operation of a hazardous waste facility without
having first obtained a permit from the IDEM. Based on information
gathered by the IDEM, Respondent operated as a storage facility by storing
hazardous waste in the following locations:
1. Several unpermitted waste piles were being managed on-site on a
large bermed concrete pad known as the recycling center oxide pad
and;
2. Two (2) twenty cubic yard roll-offs of debris (hazardous waste
codes K141, K142, D018 and D026) were stored (also on the oxide
pad) for greater than ninety (90) days. On September 15, 1995, a
roll-off of debris was returned to Respondent's facility after it had
been rejected from Chemical Waste Management of Indiana
(CWM) on hazardous waste manifest number INA 1045976. This
roll-off was shipped to Michigan Disposal, Inc. (MDI), utilizing
hazardous waste manifest number MI 4676155, on May 1, 1996.
On November 14, 1995, a second roll-off of debris was returned to
the facility after it had been rejected from CWM on hazardous
waste manifest number INA 077627. This roll-off was shipped to
MDI, utilizing hazardous waste manifest number MI 3638808, on
May 1, 1996.
Pursuant to 329 IAC 3.1-1-10 and 40 CFR 264.11, every hazardous waste
owner or operator of a hazardous waste storage facility shall notify the
Commissioner of such activities on forms provided by the Commissioner.
Based on information gathered by the IDEM, Respondent had not notified
the Commissioner as a hazardous waste storage facility.
Pursuant to 40 CFR Part 264, owners or operators of hazardous waste
storage facilities must comply with all applicable requirements of the Part.
Based on information gathered by the IDEM, Respondent operated a
hazardous waste storage facility without complying with any of the
requirements contained in 40 CFR Part 264.
e.
Pursuant to 40 CFR Part 264, owners and operators of facilities that store
hazardous waste in piles (as defined in 40 CFR 260.10) must comply with
the requirements of Subpart L. Based on information gathered by the
IDEM, Respondent stored hazardous waste in piles on the oxide pad
without complying with the requirements of Subpart L of 40 CFR Part
264. Specifically, hazardous wastes were stored in piles on the oxide pad
without complying with the following requirements of Subpart L:
1. Several piles of hazardous waste were piled higher than the berm that
surrounds the oxide pad allowing for possible wind dispersion;
2. The oxide pad did not have an impermeable coating; and
3. The run-off management system for the oxide pad was not able to
collect and control at least the water volume resulting from a 24-hour,
25-year storm.
f. Pursuant to 40 CFR 262.11 and 40 CFR 268.7, a person who generates a
solid waste, as defined in 40 CFR 261.2, must determine if that waste is a
hazardous waste. If a generator's waste is determined to be hazardous, the
generator must determine if the waste is restricted from land disposal
under 40 CFR Part 268. Based on information gathered by the IDEM,
Respondent failed to perform a hazardous waste and land disposal
determination for a pile of excavated soil located east of the power house.
Based upon sampling conducted by Respondent on April 1, 1997, the pile
of soil was determined to be nonhazardous.
g. Pursuant to 329 IAC 3.1-7-8 and 329 IAC 3.1-7-11, generators of
hazardous waste must utilize and properly complete the Uniform
Hazardous Waste Manifest. Based on information gathered by the IDEM,
Respondent failed to properly complete hazardous waste manifest number
MI4676384. Specifically, box 11a. was marked incorrectly on all three
copies of the manifest that were available for review. Box I. was marked
"K141" on all three copies except for the copy signed by the TSD facility
which corrected the box to reflect a hazardous waste code of "D018."
Box 11a. was not changed to reflect the correct hazardous waste code.
Information submitted by Respondent subsequent to the inspections
indicates that this violation has now been corrected.
h. Pursuant to 40 CFR 262.34(a)(2&3) a generator may accumulate
hazardous waste on-site for ninety (90) days or less without a permit
provided that the date upon which each period of accumulation begins is
clearly marked and visible for inspection on each container and that each
container, while being accumulated on-site, is labeled or marked clearly
with the words "Hazardous Waste." Based on information gathered by the
IDEM, Respondent failed to label/mark and date a one cubic yard
container (K141 and K142) located on the oxide pad with the start date of
accumulation or with the words "hazardous waste."
Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.173(a), a generator may accumulate hazardous waste on-site for ninety (90) days or less without a permit provided that the containers holding hazardous waste are kept closed during storage, except when it is necessary to add or remove waste. Based on information gathered by the IDEM, Respondent
failed to store closed a one cubic yard container of debris (K141/K142)
located on the oxide pad.
j. Pursuant to 40 CFR 262.43(a)(4) referencing 40 CFR 265.35, a generator
may accumulate hazardous waste on-site for ninety (90) days or less
without a permit provided that adequate aisle space is maintained between
containers to allow the unobstructed movement of personnel, fire
protection equipment, spill control equipment and decontamination
equipment. Based on information gathered by the IDEM, Respondent
failed to provide adequate aisle space between roll-offs of hazardous waste
located on the oxide pad. In most instances, small piles of hazardous
waste surrounded the roll-offs or occupied the space between roll-offs,
making the roll-offs inaccessible in case of emergency.
k. Pursuant to 329 IAC 3.1-7-14, a generator who ships his hazardous waste
off-site to a treatment, storage, or disposal facility within the United States
must prepare and submit biennial reports to the IDEM. Based on
information gathered by the IDEM, Respondent has operated as a large
quantity generator but has failed to prepare and submit biennial reports to
the IDEM since 1987.
Since the time if the of the inspection, Respondent has submitted the
required biennial reports and they have been deemed adequate.
l. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16, a generator
must provide facility personnel involved in hazardous waste management
a program of classroom instruction or on-the-job training that teaches them
to perform their hazardous waste duties in a way that ensures the facility's
compliance with all requirements of 40 CFR 265.16, and must provide an
annual review of that training. Based on information gathered by the
IDEM, Respondent failed to provide several employees with hazardous
waste training within one year of their previous training date. In addition,
Mr. Tracy Frye of Kipin Industries, Inc., Respondent's subcontractor, had
also not received his annual training review.
7. In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the
Complainant or his delegate, and has been received by the Respondent. This
Agreed Order shall have no force or effect until the effective date.
2. Within thirty (30) days of the Effective Date of the Order, Respondent shall
submit to the IDEM for approval, a closure plan for the oxide pad where the waste
piles and the two (2) twenty cubic yard roll-offs of debris were stored. This plan
shall be written in accordance with the provisions of 40 CFR Part 264, Subpart G.
3. Upon notice of approval by IDEM of the closure plan, Respondent shall
implement the approved plan in accordance with the time frames contained
therein.
4. Within thirty (30) days of the Effective Date of the Order, Respondent shall
provide financial assurance for closure, pursuant to 329 IAC 3.1-15-4.
5. Within thirty (30) days of the Effective Date of the Order, Respondent shall
excavate all oil contaminated soils near the fuel oil loading station to a depth six
(6) inches below visible signs of contamination. Submit documentation of proper
disposal to IDEM for review.
6. Within thirty (30) days of the Effective Date of the Order, Respondent shall
submit for IDEM review the verification sampling which was taken following
excavation and disposal of soils contaminated with coal tar sludge by the E&H
decanters. Also, Respondent shall submit documentation of proper disposal.
7. In the future, Respondent shall ensure that all hazardous waste manifests are
properly completed.
8. In the future, Respondent shall ensure that all containers holding hazardous waste
in the less than 90-day accumulations area are clearly marked with the date upon
which each period of accumulation begins and are marked with the words
"Hazardous Waste."
9. In the future, Respondent shall ensure that containers holding hazardous waste are
kept closed during storage, except when it is necessary to add or remove waste.
10. In the future, Respondent shall provide adequate aisle space to allow the
unobstructed movement of personnel, fire protection equipment, spill control
equipment, and decontamination equipment to any area of facility operation in the
event of an emergency, unless aisle space is not needed for any of these purposes.
11. In the future, Respondent shall ensure that all facility personnel involved in
hazardous waste management receive an annual review of the initial hazardous
waste training. Submit to this office documentation which indicates that this
training has been provided to applicable personnel.
12. All submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Richard R. Milton
Office of Enforcement
Hazardous Waste Section
Indiana Department of
Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
13. Respondent is assessed a civil penalty of $71,250. Of this amount, $14,250 shall
be due and payable to the Environmental Management Special Fund within thirty
(30) days of the Effective Date of this Agreed Order. In lieu of payment of the
remaining Civil Penalty ($57,000), the Respondent shall perform and complete
the Supplemental Environmental Project (SEP), as described in Exhibit A. The
exhibit is hereby incorporated by reference and made part of this Agreed Order.
Respondent shall also be required to obtain all necessary permits prior to
implementation. The total funds expended on the SEP shall be a minimum of
$114,000. Documentation of the final costs shall be submitted upon completion.
If the SEP is not completed in accordance with this agreement and within the
specified time period, the Respondent agrees to pay the remaining Civil Penalty,
plus interest established by IC 24-4.6-1-101, to the Environmental Management
Special Fund. Payment of the remaining amount of the Civil Penalty shall be
submitted within fifteen (15) days from receipt of a notice to pay from IDEM.
Interest on the remaining Civil Penalty shall be paid from the Effective Date of
this Agreed Order.
14. In the event the following terms and conditions are violated, the Complainant may
assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
Order Conditions
#2 through #6 $1,000 per day
15. Stipulated penalties shall be due and payable within thirty (30) days after
Respondent receives written notice that the Complainant has determined a
stipulated penalty is due. Assessment and payment of stipulated penalties shall
not preclude the Complainant from seeking any additional relief against the
Respondent for violation of the Agreed Order. In lieu of assessment of the
stipulated penalty given above, the Complainant may seek any other remedies or
sanctions available by virtue of Respondent's violation of this Agreed Order, or
Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
16. Civil and stipulated penalties are payable by check to the Environmental
Management Special Fund. Checks shall include the cause number of this action
(H-13524) and shall be mailed to:
Cashier
IDEM
100 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46206-7060
17. In the event that the civil penalty required by paragraph 13 is not paid within thirty
(30) days of the Effective Date of this Agreed Order, Respondent shall pay
interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The
interest shall continue to accrue until the civil penalty is paid in full.
18. This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. The signatories
to this Agreed Order certify that they are fully authorized to execute this document
and legally bind the parties they represent. No change in ownership, corporate, or
partnership status of the Respondent shall in any way alter its status or
responsibilities under 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 the Agreed Order did not contain the invalid terms.
20. The Respondent shall provide a copy of this Agreed Order, if in force, to any
subsequent owners or successors before ownership rights are transferred.
Respondent shall by contract require that all contractors, firms, and other persons
acting for it comply with the terms of this Agreed Order.
21. This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause
letter to Respondent.
TECHNICAL RECOMMENDATIONS: RESPONDENT:
Department of Environmental Management
By: ________________________ By: ________________________
Nancy L. Johnston, Chief
Hazardous Waste Section Title: ________________________
Office of Enforcement
Date: ________________________ Date: ________________________
LEGAL RECOMMENDATION: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ________________________ By: ________________________
Scott R. Storms
Office of Legal Counsel
Date: ________________________ Date: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT
THIS _14______ DAY OF __APRIL__________ 2000.
For the Commissioner:
signed 4/14/00
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement
Converted by Andrew Scriven