STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2002-12243-H
)
ESPM MIDWEST, INC. and H.S.G. & D. LLC, )
)
)
Respondents. )
AGREED ORDER
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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondents are ESPM Midwest, Inc. and H.S.G. & D. LLC ("Respondents"), which own and operate the company with U.S. EPA ID No. IND 984 876 888 , located at 8857 East State Road 14 in Akron, Fulton County, Indiana ("Site").
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on June 25, 2003, DEM issued a Notice of Violation via Certified Mail to:
Bobby Satterfield CT Corporation System
President Registered Agent
ESPM Midwest, Inc. ESPM Midwest, Inc.
1300 Victor Road 36 South Pennsylvania Street Suite 700
Lodi, California 95240 Indianapolis, Indiana 46204
Rob Girton, Owner and Registered Agent
H.S.G. & D. LLC
1639 S. St. RD 119
Winemac, Indiana 46996
5. Respondents notified the U.S. EPA of Large Quantity Generator activities on May 10, 2002. Prior to that date, Respondents had identified their generator status as Small Quantity Generator. During the inspection, IDEM inspectors noted that Respondents' correct generator status would be that of Small Quantity Generator.
Respondents assemble environmental waste containers, frac/baker tanks, hoists, and truck chassis.
6. An inspection on July 30, 2002, was conducted at the Site by representatives of IDEM’s Office of Land Quality ("OLQ"). The following violations were in existence or observed at the time of this inspection:
a. Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous. Respondents did not make hazardous waste determinations on the following two waste streams:
1. paint filters located in the paint booth; and
2. over-spray plastic in the paint booth.
On October 22, 2002, Respondents submitted test results to IDEM which documented that these two waste streams are not hazardous waste.
b. Pursuant to IC 13-30-2-1(10) and 40 CFR 270.1(c), no person shall commence or engage in the operation of a hazardous waste facility without having first obtained a permit from IDEM. Respondents operated as an unpermitted hazardous waste storage facility by storing 275 five-gallon containers of hazardous waste on-site for more than a year without a permit.
c. Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous facility, must notify the Commissioner of its hazardous waste activity on the approved forms. Respondents failed to notify the Commisioner of hazardous waste storage activities when they stored 275 five-gallon containers of hazardous waste on-site for more than a year.
d. Pursuant to 40 CFR 262.34(f), a generator who generates greater than 100 kilograms but less than 1000 kilograms of hazardous waste in a calendar month and who accumulates hazardous waste for more than 180 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. Respondents stored waste on-site for greater than 180 days without complying with 40 CFR 264 and 40 CFR 270. Specifically, Respondents stored 275 five-gallon containers of hazardous waste on-site for more than a year. On September 17, 2002, Respondents submitted documentation to IDEM showing that the 275 five-gallon containers were shipped off-site to an authorized hazardous waste treatment, storage, and disposal facility.
e. Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 180 days or less without a permit, provided that the containers are marked with the words "Hazardous Waste." Respondents did not label 275 five-gallon containers with the words "Hazardous Waste."
f. Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for 180 or less without a permit, provided that the date when the accumulation begins is clearly marked and visible for inspection on each container. Respondents did not mark 275 five-gallon containers with accumulation start dates.
7. On January 16, 2003, the parties held a teleconference to discuss the allegations
cited in the Notice of Violation and proposed Agreed Order.
8. In recognition of the settlement reached, Respondents waive 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 the Complainant or her delegate, and has been received by the Respondents. This Agreed Order shall have no force or effect until the Effective Date.
2. In the future, Respondents shall comply with 40 CFR 262.11. Specifically, Respondents shall ensure that hazardous waste determinations are made on all waste streams generated at the facility.
3. Upon the Effective Date of this Agreed Order, Respondents shall cease operating as a storage facility. Respondents shall ensure that hazardous wastes are never stored at the facility for longer than the period allowed by law.
4. Within thirty (30) days of the Effective Date of this Agreed Order, Respondents shall submit a hazardous waste closure plan to IDEM for approval, for the area where the 275 five-gallon drums of waste were stored. This closure plan shall be completed in accordance with the provisions of 40 CFR 264 Subpart G.
5. Within ten (10) days of notice of IDEM's approval of the closure plan, Respondents shall implement the plan as approved and in accordance with the time frames contained therein.
6. Within thirty (30) days of the Effective Date of this Agreed Order, Respondents shall comply with 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(3). Specifically, Respondents shall mark all containers of hazardous waste with the words "Hazardous Waste."
7. Within thirty (30) days of the Effective Date of this Agreed Order, Respondents shall comply with 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(3). Specifically, Respondents shall mark all containers of hazardous waste with accumulation start dates.
8. All submittals required by this Agreed Order, unless notified otherwise in
writing, shall be sent to:
Aubrey N. Sherif
Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
9. Respondents are assessed a civil penalty of Twelve Thousand Dollars ($12,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund in twenty-four (24) equal payments of Five Hundred Dollars ($500) each, with the first payment due within thirty (30) days of the Effective Date of this Agreed Order. Each subsequent payment will be due every thirty (30) days until the entire amount has been paid in full.
10. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondents shall pay a stipulated penalty in the following amount:
Violation
PenaltyFailure to comply with Order paragraph 4 $500 per week
Failure to comply with Order paragraph 5 $500 per week
11. Stipulated penalties shall be due and payable within thirty (30) days after Respondents receive 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 Respondents for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondents' violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
12. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
13. In the event that the civil penalty required by Order paragraph 9 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondents 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.
14. This Agreed Order shall apply to and be binding upon the Respondents, their successors and assigns. The Respondents' 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 Respondents shall in any way alter its status or responsibilities under this Agreed Order.
15. In the event that any terms of the 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.
16. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
17. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondents.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: __________________________ By: ________________________
Nancy L. Johnston, Chief
Office of Enforcement Printed: __________________
Title: ________________________
Date: __________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ___________________________ By: ________________________
Office of Legal Counsel
Date: ___________________________ Date: ________________________
RESPONDENT:
By: ________________________
Printed: __________________
Title: ________________________
Date: ________________________
COUNSEL FOR RESPONDENT:
By: ________________________
Date: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2003.
For the Commissioner:
Signed August 21, 2003
Felicia A. Robinson
Deputy Commissioner for
Legal Affairs