Case 1:22-cv-01560-JMS-DLP Document 1 Filed 08/05/22 Page 1 of 25 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF INDIANA
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`UNITED STATES OF AMERICA,
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`and
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`THE STATE OF INDIANA,
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`Civ. No. ____________________________
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` Plaintiffs,
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`
` v.
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`METALWORKING LUBLICANTS
`COMPANY,
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` Defendant.
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`
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`COMPLAINT
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`Plaintiffs, the United States of America (“United States”), by the authority of the
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`Attorney General and through the undersigned attorneys, and at the request of the Administrator
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`of the United States Environmental Protection Agency (“EPA”), and the State of Indiana
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`(“Indiana” or the “State”) on behalf of the Indiana Department of Environmental Management
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`(“IDEM”) (collectively, “Plaintiffs”) file this Complaint and allege as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action brought pursuant to Section 113(b) of the Clean Air Act
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`(“Act”), 42 U.S.C. § 7413(b), and pursuant to the laws of Indiana, for assessment of civil
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`penalties and injunctive relief against Metalworking Lubricants Company (“Defendant” or
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`“MLC”) for violations of its Federally Enforceable State Operating Permits (“FESOPs”); the
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`National Emissions Standards for Hazardous Air Pollutants for Off-Site Waste and Recovery
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`Operations (“Off-Site Waste NESHAP”), 40 C.F.R. Part 63, Subpart DD; and Title V of the Act,
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`42 U.S.C. § 7661a, in connection with Defendant’s oil recycling and refining facility in
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`Indianapolis, Indiana.
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`2.
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`As explained further below, the Metalworking Lubricants facility in Indianapolis
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`failed to meet pollution control requirements and emitted hazardous air pollutants at levels above
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`what is allowed by law. The hazardous air pollutants emitted from the facility can impact human
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`health, with potential effects including irritation of the skin, eyes, nose, and throat; constriction
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`of the chest; gastrointestinal and neurological effects; central nervous system effects, such as
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`headache, dizziness, fatigue, tremors; and cancer.
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`JURISDICTION, VENUE, AUTHORITY AND NOTICE
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`3.
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`This Court has jurisdiction over the subject matter of this action pursuant to
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`Section 113(b) of the Act, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1331, 1345, and 1355.
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`4.
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`Under 28 U.S.C. § 1367 this Court has supplemental jurisdiction over state law
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`claims asserted by Indiana pursuant to Rule 326 of the Indiana Administrative Code and the rules
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`adopted thereunder.
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`5.
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`Venue is proper in this judicial district pursuant to Section 113(b) of the Act,
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`42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b) and (c) and 1395. Defendant does business in,
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`and these claims arose within, this judicial district.
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`6.
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`Authority to bring this action is vested in the United States Department of Justice
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`pursuant to Section 305 of the Act, 42 U.S.C. § 7605.
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`7.
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`Notice of commencement of this action has been given to Indiana pursuant to
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`Section 113(b) of the Act, 42 U.S.C. § 7413(b).
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`8.
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`Authority to bring this action for the People of the State of Indiana is vested in the
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`Indiana Attorney General. The Indiana Attorney General is the chief legal officer of the State of
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`Indiana, having the powers and duties prescribed by the law, Ind. Code § 4-6-1-6. Under Ind.
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`Code § 4-6-3-2 the Indiana Attorney General has charge of and directs the prosecution of all civil
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`actions brought in the name of the State of Indiana or any state Agency. Pursuant to Ind. Code §
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`13-13-5-1, IDEM is charged with the administration and enforcement of the requirements for air
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`pollution control for Indiana for all purposes of the federal Clean Air Act. Pursuant to Ind. Code
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`§ 13-13-5-2, IDEM may take any action necessary to secure for Indiana the benefits of the
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`federal statutes described in Ind. Code § 13-13-5-1, which includes the federal Clean Air Act, as
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`amended by the Clean Air Act Amendments of 1990.
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`PARTIES
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`9.
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`Plaintiffs are the United States of America, acting at the request of the EPA, an
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`agency of the United States, and Indiana, on behalf of IDEM.
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`10.
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`Defendant Metalworking Lubricants Company is a privately held corporation
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`incorporated under the laws of the State of Michigan and doing business in this judicial district.
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`11.
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`Defendant is a “person” within the meaning of Section 302(e) of the Act,
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`42 U.S.C. § 7602(e), and within the meaning of Section 113(b) of the Act, 42 U.S.C. § 7413(b).
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`12.
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`At all times relevant to this Complaint, the Defendant was the owner and operator
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`of the Metalworking Lubricants Company oil recycling and refining facility (the “MLC
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`Facility”) in Indianapolis, Indiana.
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`STATUTORY AND REGULATORY FRAMEWORK
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`13.
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`The Act establishes a regulatory scheme designed to protect and enhance the
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`quality of the nation’s air resources to promote the public health and welfare and the productive
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`capacity of its population. See 42 U.S.C. § 7401(b)(1). Section 109 of the Act requires the
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`development of Primary and Secondary National Ambient Air Quality Standards (“NAAQS”) to
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`protect public health and welfare. See 42 U.S.C. § 7409. To attain and maintain these standards,
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`each State is required to develop a state implementation plan. See 42 U.S.C. § 7410.
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`The State of Indiana’s FESOP program
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`14.
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`The Indiana SIP at 326 IAC 2-8-4(5)(A) requires the permittee to comply with all
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`conditions of the FESOP. Non-compliance with any provision of a FESOP is grounds for
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`enforcement.
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`15.
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`Pursuant to the Indiana SIP at 326 IAC 2-8-6(b), all terms and conditions in a
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`FESOP, including any provisions designed to limit a source’s potential to emit, are enforceable
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`under the Act by EPA.
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`16.
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`Pursuant to 40 C.F.R. § 52.23, a person failing to comply with any permit
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`limitation or condition contained within a permit to operate issued under an EPA-approved
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`regulatory program that is incorporated into a SIP, shall render that person in violation of the
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`SIP, thus making that person subject to an enforcement action under Section 113 of the Act, 42
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`U.S.C. § 7413.
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`17.
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`On October 27, 2003, IDEM issued to MLC FESOP Renewal No. F097-15365-
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`00139.
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`18.
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`On February 7, 2008, IDEM issued to MLC an Administrative Amendment to
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`FESOP Renewal No. F097-15365-00139 (the “2008 FESOP”).
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`19.
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`On June 25, 2015, IDEM issued to MLC FESOP Renewal No. F097-32513-
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`00139.
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`20.
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`On July 13, 2015, MLC petitioned, pursuant to the authority of IAC 4-21.5-3-7,
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`for administrative review and a stay of the effectiveness of certain conditions of FESOP Renewal
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`No. 097-32513-00139.
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`21.
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`On October 29, 2015, IDEM issued an Administrative Amendment to FESOP
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`Renewal No. 097-32513-00139 (the “2015 FESOP”).
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`22.
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`On November 13, 2015, MLC petitioned for administrative review and a stay of
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`effectiveness of certain conditions of the administrative amendment to FESOP 097-32513-
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`00139.
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`23.
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`On September 26, 2016, IDEM and MLC entered into a stay agreement of
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`effectiveness of certain conditions of the administrative amendment to FESOP 097-32513-00139
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`(the “Limited Stay”).
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`MLC’s 2008 FESOP Requirements
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`24.
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`Condition D.2.3 of the 2008 FESOP required MLC to record the total static
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`pressure drop across the scrubber used in conjunction with the controlled tanks, at least once per
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`day. When any one pressure drop reading across the scrubber is outside the normal range of 1-4
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`inches of water or a suitable range established during the latest stack test, MLC must take
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`reasonable response steps in accordance with Section C of the 2008 FESOP. A pressure drop
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`reading that is outside the above mentioned range is not a deviation from the permit. Failure to
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`take response steps in accordance with Section C is considered a deviation from the permit.
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`25.
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`Condition C.17 of Section C-Response to Excursions or Exceedances of the 2008
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`FESOP provides that:
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`(a) Upon detecting an excursion or exceedance, MLC must restore operation of
`the emissions unit (including any control device and associated capture system) to
`its normal or usual manner of operation as expeditiously as practicable in
`accordance with good air pollution control practices for minimizing emissions.
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`(b) The response must include minimizing the period of any startup, shutdown or
`malfunction and taking any necessary corrective actions to restore normal
`operation and prevent the likely recurrence of the cause of an excursion or
`exceedance (other than those caused by excused startup or shutdown conditions).
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`(c) Failure to take reasonable response steps is considered a deviation from the
`permit.
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`MLC’s 2015 Permit and Stay Requirements
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`26.
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`Condition D.1.1(e) of the 2015 FESOP and Limited Stay provides that total
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`hazardous air pollutant (“HAP”) emissions from receiving, handling, processing, storage and
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`treatment (including wastewater and process treatment) shall not exceed 24 tons per twelve 12
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`consecutive month period, with compliance determined at the end of each month.
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`27.
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`Condition D.1.3 of the 2015 FESOP and Limited Stay provides that the
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`hypochlorite injection scrubber shall be in operation when the identified heated tanks are in
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`operation.
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`28.
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`Condition D.1.4 of the 2015 FESOP and Limited Stay provides that the scrubber
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`system serving the tanks for sulfur dioxide (“SO2”), volatile organic compounds (“VOC”), and
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`HAP control shall be in operation and control emissions from the tanks at all times the tanks are
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`operating or holding liquid.
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`29.
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`Condition D.1.6 of the 2015 FESOP, as modified by the Limited Stay, requires
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`that MLC calculate the sulfur, VOC and HAP content of each shipment of waste product
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`received and each additive used in the processing of waste. These calculations are intended to
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`determine the fugitive and stack emissions from receiving, handling, processing, storage, and
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`treatment (including wastewater and process treatment) pursuant to the FESOPs.
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`NESHAP for Hazardous Air Pollutants from Off-Site Waste
`and Recovery Operations
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`30.
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`In furtherance of the goal to protect and enhance the quality of the nation’s air
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`resources, Congress established an initial list of HAPs including inter alia xylenes, toluene,
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`phenol, and polycyclic aromatic hydrocarbons. See Section 112(b) of the Act, 42 U.S.C. §
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`7412(b).
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`31.
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`Section 112(c) of the Act, 42 U.S.C. § 7412(c), requires EPA to publish and
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`periodically revise a list of all categories and subcategories of new and existing major and area
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`sources of the HAPs listed pursuant to Section 112(b) of the Act, 42 U.S.C. § 7412(b).
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`32.
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`Section 112(d) of the Act, 42 U.S.C. § 7412(d), requires EPA to promulgate
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`technology-based emissions standards to regulate the emission of HAPs for each category and
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`subcategory listed pursuant to Section 112(c) of the Act.
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`33.
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`Pursuant to Section 112 of the Act, on July 1, 1996, EPA promulgated the Off-
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`Site Waste NESHAP. 61 Fed. Reg. 34158, July 1, 1996.
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`34.
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`The Off-Site Waste NESHAP at 40 C.F.R. § 63.680(a) provides that the
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`provisions of the Off-Site Waste NESHAP apply to the owner and operator of a facility for
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`which both of the conditions specified in 40 C.F.R. § 63.680(a)(1) and (a)(2) are applicable.
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`35.
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`Pursuant to 40 C.F.R. § 63.680(a)(1), for the Off-Site Waste NESHAP to apply,
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`the facility must be a major source of HAP emissions as defined in 40 C.F.R. § 63.2. Under 40
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`C.F.R. § 63.2, a “major source” of HAP emissions means any stationary source or group of
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`stationary sources located within a contiguous area and under common control that emits or has
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`the potential to emit considering controls, in the aggregate, 10 tons per year or more of any HAP
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`or 25 tons per year or more of any combination of HAPs.
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`36.
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`Pursuant to 40 C.F.R. § 63.680(a)(2), for the Off-Site Waste NESHAP to apply,
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`the facility must include one or more operations that receive off-site materials as specified in 40
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`C.F.R. § 63.680(b) and one or more waste management or recovery operations specified in 40
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`C.F.R. § 63.680(a)(2)(i) through (a)(2)(vi).
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`37.
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`Pursuant to 40 C.F.R. 40 C.F.R. § 63.6(c)(5), the owner or operator of an area
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`source that increases its emissions of (or its potential to emit) HAPs such that the source
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`becomes a major source is subject to relevant standards for existing sources. Such sources must
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`comply by the date specified in the standards for existing area sources that become major
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`sources. If no such compliance date is specified in the standards, the source shall have a period
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`of time to comply with the relevant emission standard that is equivalent to the compliance period
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`specified in the relevant standard for existing sources in existence at the time the standard
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`becomes effective.
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`38.
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`Pursuant to 40 C.F.R. § 63.680(e), the owner or operator of an affected source
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`that commenced construction or reconstruction before October 13, 1994, and receives off-site
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`material for the first time before February 1, 2000, must achieve compliance with the provisions
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`of the Off-Site Waste NESHAP on or before February 1, 2000. These existing affected sources
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`must be in compliance with the tank requirements of 40 C.F.R. § 63.685(b)(1)(ii) two years after
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`the publication date of the final amendments on March 18, 2015; the equipment leak
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`requirements of 40 C.F.R. § 63.691(b)(2) one year after the publication date of the final
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`amendments on March 18, 2015; and the pressure relief device monitoring requirements of 40
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`C.F.R. § 63.691(c)(3)(i) and (ii) three years after the publication date of the final amendments on
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`March 18, 2015.
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`39.
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`Pursuant to 40 CFR § 63.6(c)(1), after the effective date of a relevant standard
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`established under Part 63 pursuant to section 112(d) or 112(h) of the Act, the owner or operator
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`of an existing source must comply with such standard by the compliance date established by the
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`Administrator. Except as otherwise provided in section 112 of the Act, in no case can the
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`compliance date established for an existing source in an applicable subpart of exceed three years
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`after the effective date of such standard.
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`40.
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`Pursuant to 40 C.F.R. § 63.697(a)(1), the owner or operator of an affected source
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`must submit notices to the Administrator in accordance with the applicable notification
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`requirements in 40 C.F.R. § 63.9 as specified in Table 2 of the Off-Site Waste NESHAP.
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`41.
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`Pursuant to 40 C.F.R. § 63.9(b)(1), if an area source that otherwise would be
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`subject to an emission standard or other requirement if it were a major source subsequently
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`increases its emissions of hazardous air pollutants (or its potential to emit hazardous air
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`pollutants) such that the source is a major source that is subject to the emission standard or other
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`requirement, such source is subject to the notification requirements.
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`42.
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`Pursuant to 40 C.F.R. § 63.9(b)(2), the owner or operator of an affected source
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`that has an initial startup before the effective date of a relevant standard under 40 C.F.R. Part 63
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`must notify the Administrator in writing that the source is subject to the relevant standard.
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`Title V Requirements
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`Section 502(a) of the Act, 42 U.S.C. § 7661a(a), and 40 C.F.R. § 70.7(b) provide
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`43.
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`that, after the effective date of any permit program approved or promulgated under Title V of the
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`Act, no source subject to Title V may operate except in compliance with a Title V Permit.
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`44.
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`EPA approved of Indiana’s Title V program with an effective date of July 15,
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`2002. See 67 Fed. Reg. 34,844.
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`45.
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`State operation permit program conditions, at 40 C.F.R. § 70.3(a), require, in
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`relevant part, that the state program provide for permitting of major sources.
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`46.
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`State operating permit program conditions at 40 C.F.R. § 70.5(a)(1) require that
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`an application for a source applying for a part 70 permit for the first time be submitted within 12
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`months after the source becomes subject to the permit program or on or before such earlier date
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`as the permitting authority may establish.
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`Civil Enforcement
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`47.
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`Section 113(b) of the Act, 42 U.S.C. § 7413(b), provides EPA authority to
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`commence a civil action for injunction and civil penalty where a person violates any requirement
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`or prohibition of an applicable implementation plan or permit.
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`48.
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`Under the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C.
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`§ 2461, as amended by the Debt Collection Improvements Act of 1996, 31 U.S.C. § 3701
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`(“DCIA”), and the Federal Civil Penalties Inflation Act Improvement Act of 2015 (Section 701
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`of Public Law 114-74), which further amended the DCIA, and pursuant to EPA’s Civil Monetary
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`Penalty Inflation Adjustment Rule, 40 C.F.R. Part 19, which was promulgated pursuant to the
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`DCIA, the maximum amount of the civil penalties provided under Section 113(b) of the Clean
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`Air Act was increased to $37,500 per day for each violation occurring from January 12, 2009
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`until November 2, 2015, and $109,024 per day for each violation occurring after November 2,
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`2015 and assessed on or after January 12, 2022.
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`49.
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`Pursuant to Ind. Code §§ 13-13-5-1, 13-13-5-2, and 13-30-4-1, Indiana may seek
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`injunctive relief and civil penalties not to exceed $25,000 per day of any violation of air
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`pollution control laws in a civil action commenced in any court with jurisdiction.
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`GENERAL ALLEGATIONS
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`50.
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`At all times relevant to this Complaint, Defendant owned and operated the MLC
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`Facility that is the subject of this action.
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`The MLC Facility
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`51.
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`The MLC Facility is located at 1501 South Senate Avenue, Indianapolis, Indiana,
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`an urban area close to other industrial facilities and residents.
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`52.
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`The MCL Facility is a “stationary source” within the meaning of
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`Section 112(r)(2)(C) of the Act, 42 U.S.C. § 7412(r)(2)(C) and 40 C.F.R. § 68.3.
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`53.
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`The MLC Facility takes in waste oil and wastewater (e.g., industrial sludge and
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`coolant waters) from facilities such as steel mills and automotive industries.
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`54.
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` The MLC Facility recycles the waste oil and wastewater to generate off-spec fuel
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`for various industries such as cement kilns, the automotive industry, steel industry, and asphalt
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`plants.
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`55.
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`The MLC Facility treats the wastewater to state and federal guidelines and
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`releases it to the publicly owned treatment works (“POTW”).
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`56.
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` The MLC production process emits HAPs, SO2, and VOCs to the air.
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`57. MLC operates a number of heated production tanks, at least one heated water
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`tank, and a number of heated product tanks.
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`58. MLC nominally controls all of the above referenced tanks by a hypochlorite
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`injection scrubber followed by a carbon box (“Heated Tank Scrubber/Carbon Box Operation”) at
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`the MLC Facility.
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`EPA’s Investigations
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`59.
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`On July 8, 2011, the EPA issued a Section 114 Request for Information to MLC,
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`pursuant to the Act, 42 U.S.C. § 7414(a)(1), based on odor complaints from the community
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`surrounding the MLC Facility.
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`60.
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`In response to that Request, MLC submitted scrubber logs that showed MLC had
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`failed to take reasonable steps when the pressure drop of the scrubber was out of range and had
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`failed to maintain scrubber pressure logs at the MLC Facility.
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`61.
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`On June 11-12, 2013, EPA conducted an inspection of the MLC Facility.
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`62. MLC operates a scrubber to control sulfur emissions and resulting odors on the
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`outside oil processing tanks and dryer tanks at the MLC Facility.
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`63. MLC operates a carbon box system as a secondary odor control system on the
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`outside oil processing tanks and dryer tanks at the MLC Facility. During EPA’s 2013 inspection,
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`plant personnel indicated MLC had not changed the carbon in this system for more than six
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`years.
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`64.
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`Based on scrubber logs provided to EPA on June 14, 2013, the differential
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`pressure (pressure drop) on MLC’s scrubber fell below 1 inch of water for 356 days between
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`March 1, 2011 and June 10, 2013.
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`65.
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`Between March 1, 2011, and June 10, 2013, MLC failed to restore operation of
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`the scrubber to its normal operation in accordance with Condition D.2.3 of the 2015 FESOP and
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`good air pollution control practices.
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`66.
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`Between March 1, 2011, and June 10, 2013, there were periods of time that
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`MLC’s scrubber pressure drop was below 1 inch of water for more than 21 consecutive days.
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`67. MLC failed to maintain daily scrubber logs for January, February, and November
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`of 2011 and April, May, November, and December of 2012.
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`68.
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`On September 26, 2013, EPA issued a Notice of Violation (“NOV”) to MLC
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`pursuant to the Act, 42 U.S.C. § 7413(a), for failing to take reasonable steps when the pressure
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`drop of the scrubber was out of range and for failing to maintain scrubber pressure logs at the
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`MLC Facility.
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`69.
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`On March 31-April 1, 2015, EPA conducted an inspection of the MLC Facility.
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`During the inspection, MLC stated that the facility processes oil 7 days per week, 24 hours per
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`day.
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`70.
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`During the March 31-April 1, 2015, inspection, EPA inspectors observed that the
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`scrubber was not operating while the heated tanks were holding liquid and in operation.
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`71.
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`During the March 31-April 1, 2015, inspection, EPA inspectors observed that the
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`pressure drop gauge on the scrubber was registering zero pounds per square inch (“psig”).
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`72.
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` On July 22, 2015, EPA issued a Section 114 Request for Information, pursuant to
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`the Act, 42 U.S.C. § 7414(a)(1), requiring MLC to conduct VOC and SO2 emissions testing at
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`the inlet and outlet to the Heated Tank Scrubber/Carbon Box Operation and to determine its
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`removal efficiency
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`73.
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`On December 20-21, 2016, MLC conducted the required VOC and SO2
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`emissions testing at the inlet and outlet to the heated Tank Scrubber/Carbon Box Operation
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`74.
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`The stack test results showed that the Heated Tank Scrubber/Carbon Box system
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`had a lower than expected and in some instances a negative control efficiency for VOCs and
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`HAPs, and a SO2 emission control efficiency of 78.3 percent.
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`75.
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`On January 20, 2017, MLC submitted its FESOP VOC, SO2, and total HAPs
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`Quarterly Report required by the 2015 FESOP and Limited Stay.
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`76.
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` In February 2017, MLC submitted supplementary data to EPA related to the
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`VOCs tested and HAPs present in the waste materials identified in the report.
`
`77.
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`In the January 2017 Quarterly Report, MLC stated that there were three
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`deviations of the 2015 FESOP and Limited Stay permit requirements due to the scrubber being
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`out of operation.
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`78.
`
`The February 2017 supplementary data indicated that: (a) there were at least 240
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`occasions when the sample was analyzed for HAPs outside the method-defined hold time; and
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`(b) there were more than 1,000 occasions when the sample concentration result for HAPs was
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`measured below the minimum detection level (“MDL”) and the final HAP concentration result
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`reported was zero.
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`79.
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`The January 20, 2017 stack test results for the December 20-21 test showed the
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`presence of acetaldehyde and methanol in the emissions from the stack.
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`80.
`
` The January 2017 Quarterly Report and the reports submitted thereafter show
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`that MLC has not been testing its incoming waste oil for acetaldehyde and methanol.
`
`81.
`
`Failing to test for the presence of acetaldehyde and methanol in the emissions
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`from the stack underestimates its emissions of these compounds and total HAPs.
`
`82.
`
`According to EPA calculations based on the January 2017 Quarterly Report,
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`MLC’s HAP emissions were more than 24 tons based on a 12 consecutive month period.
`
`83.
`
`Based on the January 2017 Quarterly Report, the Heated Tank Scrubber/Carbon
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`Box system had a lower than expected and in some instances a negative control efficiency for
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`VOCs and HAPs, and a SO2 emission control efficiency of 78.3 percent. Additionally, the
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`Heated Tank Scrubber/Carbon Box system did not maintain certain parameters within the ranges
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`required by its permit.
`
`84.
`
` On May 21, 2017, EPA issued a second NOV to MLC, pursuant to Section
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`113(a) of the Act, 42 U.S.C. § 7413(a), for emitting HAPs in excess of 24 tons per 12-month
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`period, for failing to operate its Heated Tank Scrubber/Carbon Box system to control emissions
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`when the heated processing tanks were operating on at least four occasions, for failing to
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`determine the sulfur, VOCs, and HAPs content of each shipment of waste product, for failing to
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`take response steps when the total static pressure drop across the scrubber was outside the
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`required range, and for failing to maintain scrubber pressure logs.
`
`85.
`
`On August 13, 2019, EPA issued a Section 114 Request for Information to MLC
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`and ALS Environmental (“ALS”), pursuant to the Act, 42 U.S.C. § 7414(a)(1), requiring MLC
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`and ALS to provide data regarding liquid sampling and testing of incoming waste material at the
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`MLC Facility from the period from October 1, 2016, to the date of the Request.
`
`86.
`
`On February 25, 2020, EPA issued a Section 114 Request for Information,
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`pursuant to the Act, 42 U.S.C. § 7414(a)(1), requiring MLC to provide information regarding the
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`amount of waste processed at the MLC Facility on a monthly basis for the period from
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`November 24, 2015 through the date of the Request.
`
`87.
`
`Based on the January 2017 Quarterly Report, and MLC’s responses to EPA’s
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`August 2019 and February 2020 Section 114 Requests, MLC became a major source emitting 25
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`tons per year or more of HAPs on or about December 31, 2014.
`
`88.
`
`Because MLC became a major source on or about December 31, 2014, MLC was
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`required to submit to EPA an initial notification within 120 days thereafter (i.e. by April 30,
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`2015), to submit a Title V application one year thereafter (i.e. by December 31, 2015), and to
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`comply with the control requirements of the Off-Site Waste NESHAP within three years of
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`becoming subject to them (i.e. by December 31, 2017).
`
`89.
`
`Based on the January 2017 Quarterly Report, and MLC’s responses to EPA’s
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`August 2019 and February 2020 Section 114 Requests, MLC has continued to emit HAPs in
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`excess of 24 tons per twelve (12) consecutive month period.
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`IDEM Enforcement
`
`90.
`
`IDEM has issued three Enforcement Action Letters (“EALs”) to MLC that
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`generally cover the same violations as EPA as well as additional reporting and recordkeeping
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`violations.
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`91.
`
`In its October 13, 2017 EALs, IDEM cited a number of days when MLC was
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`operating the tanks without the Heated Tank Scrubber/Carbon Box system operating based on
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`
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`September 13 and 18, 2017 inspections by IDEM. The total days IDEM has cited are: October
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`21, 2016; October 27, 2016; December 5, 2016; December 7, 2016; February 5, 2017; February
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`8, 2017; February 28, 2017; March 14, 2017; April 10, 2017; April 14, 2017; May 4, 2017;
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`August 24, 2017; and September 10, 2017.
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`Hazardous Air Pollution from the MLC Facility
`
`92.
`
`In the January 2017 Quarterly Report, MLC identified at least 42 HAPs in waste
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`coming in or being released through stack or fugitive emissions from the MLC Facility including
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`xylenes, trichloroethene, toluene, tetrachloroethene, styrene, pyrene, phenol, phenanthrene, o-
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`xylene, naphthalene, methylene chloride, methyl tert-butyl ether, m,p-xylene, isopropylbenzene,
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`fluorine, fluoranthene, ethyl benzene, dibenzofuran, chrysene, chloromethane, chloroform,
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`chlorobenzene, carbon tetrachloride, carbon disulfide, carbazole, bis (2-ethyhexyl) phthalate,
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`benzo(a)anthracene (aka benz(a)anthracene), benzidine, benzene, anthracene, acetophenone,
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`acenaphthylene, acenaphthene, 4-ethyl-2-pentanone, 4-aminobiphenyl, 2-methylphenol, 2-
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`methylnapthlalene, 2,4-initrotoluene, 1-methylnapthalene, 1,4-dichlorobenzene, 1,2-dibromo-3
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`chloropropane, and 1,2,4-richlorobenzene. The 10 HAPs with the highest concentration were:
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`m,p-xylene, ethylbenzene, 2-ethylnapthalene, o-xylene, phenol, bis(2-ethylhexyl) phthalate,
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`toluene, 1-methynapthalene, phenanthrene, and naphthalene.
`
`93.
`
`The health effects of these HAPs may include irritation of the skin, eyes, nose,
`
`and throat, constriction of the chest, gastrointestinal and neurological effects, central nervous
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`system effects, such as headache, dizziness, fatigue, tremors, and cancer.
`
`94.
`
` Most of the HAPs identified at the MLC Facility are VOCs, which contribute to
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`the formation of ground-level ozone. Breathing ozone may contribute to a variety of health
`
`problems including chest pain, coughing, throat irritation, and congestion, and can worsen
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`
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`bronchitis, emphysema, and asthma. Ground-level ozone also can reduce lung function and
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`inflame lung tissue. Repeated exposure may permanently scar lung tissue.
`
`95.
`
`Short-term exposures to SO2 can harm the human respiratory system and make
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`breathing difficult. Children, the elderly, and those who suffer from asthma are particularly
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`sensitive to effects of SO2. SO2 emissions that lead to high concentrations of SO2 in the air
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`generally also lead to the formation of other sulfur oxides (“SOX”). SOX can react with other
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`compounds in the atmosphere to form small particles. These particles contribute to particulate
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`matter (“PM”) pollution: particles may penetrate deeply into sensitive parts of the lungs and
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`cause additional health problems.
`
`FIRST CLAIM FOR RELIEF
`(FESOP: Condition D.1.1(e))
` (42 U.S.C. §7413(a)(1))
`
`96.
`
`97.
`
`Paragraphs 1 through 92 are incorporated herein by reference.
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`Since at least June 30, 2015, the Defendant has violated Condition D.1.1(e) of the
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`2015 FESOP and Limited Stay by exceeding the 24 tons per year limit of HAP emissions, with
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`compliance determined at the end of each month.
`
`98.
`
`On May 31, 2017, the EPA issued an NOV in which it notified the Defendant of
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`this violation.
`
`99.
`
`As a result of the Defendant’s exceedance of the 24 tons per year limit of HAP
`
`emissions, unauthorized HAP emissions have occurred and are continuing to occur at the MLC
`
`Facility.
`
`100.
`
` Pursuant to Section 113(b) of the Act, 42 U.S.C. § 7413(b), as amended, the
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`Defendant is liable for injunctive relief and an assessment of a civil penalty from at least June 30,
`
`2015, to November 2, 2015, in the amount of $37,500 per day for each such violation, and after
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`Case 1:22-cv-01560-JMS-DLP Document 1 Filed 08/05/22 Page 18 of 25 PageID #: 18
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`
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`November 2, 2015, to the present in the amount of up to $109,024 per day for each such
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`violation.
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`101. As a result of the above-listed violations, pursuant to Ind. Code §§ 13-13-5-1,
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`13 13-5-2, and 13-30-4-1, the Defendant is liable to Indiana for injunctive relief and civil
`
`penalties not to exceed $25,000 per day for each violation.
`
`SECOND CLAIM FOR RELIEF
`(FESOP: Conditions D.1.3 & D.1.4)
`(42 U.S.C. § 7413(a)(1))
`
`102. Paragraphs 1 through 92 are incorporated herein by reference.
`
`103. On numerous occasions as described above in paragraphs 84 and 89, the
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`Defendant has violated Conditions D.1