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STATE OF |
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BEFORE THE INDIANA
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. FLEX-N-GATE CORP. d/b/a MASTERGUARD CORP., Respondent. |
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AGREED ORDER
The
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 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
2. Respondent
is Flex-N-Gate Corp. d/b/a MasterGuard Corp. ("Respondent"), which
owns and operates the company with U.S. EPA ID No.
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 on October 25, 2006 via
Certified Mail to:
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Mr.
Shahid R. Khan, President Ms.
Yolanda Woods, Registered Agent for: |
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Flex-N-Gate
Corp. d/b/a Flex-N-Gate
Corp. d/b/a |
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MasterGuard
Corp. MasterGuard
Corp. |
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5. Respondent
most recently notified the U.S. EPA of Large Quantity Generator activities on
February 9, 2006.
6. Respondent
manufactures bumpers, hitch receivers, running boards, and bed rails for
various truck manufacturers.
7. 329
IAC 3.1 incorporates certain federal hazardous waste management requirements
found in 40 CFR Parts 260 through 273, including those identified below.
8. During
an investigation including an inspection on July 14, 2006, conducted by a
representative of IDEM the following violations were found:
a. Pursuant
to 40 CFR 262.34(a)(2), a 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. Respondent did not label four 55-gallon drums
of ignitable waste, located in the
b. Pursuant
to 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for
90 days or less without a permit, provided that containers are marked with the
words "Hazardous Waste."
Respondent did not label the hazardous waste stripper tank, located in
the Wastewater Treatment Area, with the words "Hazardous Waste." On December 6, 2006, Respondent indicated
that this tank (Tank 220) is no longer in use as a hazardous waste tank. Tank 220 is now part of the wastewater
treatment unit, and as such, exempt from regulation under RCRA.
c. Pursuant
to 40 CFR 262.34(c)(1)(ii), a generator may accumulate as much as 55 gallons of
hazardous waste at or near the point of generation without a permit and without
complying with 40 CFR 262.34(a), provided that the containers are marked with
either the words "Hazardous Waste" or with other words describing the
contents. Respondent did not label one
15-gallon container of hazardous waste with the words “Hazardous Waste” or with
other words describing the contents.
This container was located in the Vault Area under a table. On December 6, 2006, Respondent provided documentation
that the container was properly labeled.
d. Pursuant
to 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a), a container holding
hazardous waste must always be closed during storage, unless necessary to add
or remove waste. Respondent did not
store the following satellite accumulation containers closed:
1. One 15-gallon container located in the
Chrome Inspection Area.
2. One 20-gallon container located at the
MG2 Paint Line.
3. One 5-gallon container located outside
the MG2 Paint Line.
The
20-gallon container was closed during the inspection. On December 6, 2006, Respondent provided
documentation that the 15-gallon and the 5-gallon containers were replaced with
new containers with lids, and that the 20-gallon container was removed from
service.
e. Pursuant
to 40 CFR 273.13(d)(1), a small quantity handler of universal waste must manage
universal waste mercury-containing lamps in a way that prevents releases to the
environment, and ensure that all containers of waste mercury-containing lamps
are stored closed. Respondent stored two
8-foot boxes of mercury-containing lamps open.
Respondent also accumulated waste mercury-containing lamps outside of a
container, and thus failed to manage them in a way that prevents releases. On December 6, 2006, Respondent provided
documentation that all containers of universal waste mercury-containing lamps
are stored closed.
f. Pursuant
to 329 IAC 3.1-16-2(4) and 40 CFR 273.14(e), universal waste mercury-containing
lamps or containers in which such lamps are contained must be labeled or marked
clearly with one of the following:
1. “Universal
Waste Mercury-Containing Lamps.”
2. “Waste
Mercury-Containing Lamps.”
3. Other
words that accurately identify the universal waste lamps.
Respondent did not properly label or mark the
following containers:
1. Four
8-foot containers of waste lamps.
2. Five
4-foot containers of waste lamps.
3. Four
HID boxes of waste lamps.
On
December 6, 2006, Respondent provided documentation that the universal waste
mercury-containing containers were properly labeled.
g. Pursuant
to 40 CFR 273.15(a), a small quantity handler of universal waste may accumulate
universal waste for no longer than one year from the date the universal waste
is generated or received from another handler.
Respondent has stored universal waste batteries on-site for more than
one year. The last shipment of waste
batteries off-site occurred in May of 2004.
On December 6, 2006, Respondent provided documentation that all universal
waste batteries were sent off-site on August 4, 2006.
h. Pursuant
to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(2), hazardous waste
personnel training record job descriptions must include the job duties of each
position with responsibility for hazardous waste management. Respondent’s job descriptions for hazardous
waste management personnel did not include specific job duties. On August 3, 2006, Respondent submitted to
IDEM revised job descriptions that include specific job duties. On December 6, 2006, Respondent provided IDEM
with additional revised job descriptions.
i. Pursuant
40 CFR 262.42, a generator of greater than 1,000 kilograms of hazardous waste
in a calendar month who does not receive a copy of the manifest with the
hand-written signature of the owner or operator of the designated facility
within 35 days of the date the waste was accepted by the initial transporter,
must contact the transporter and/or the owner/operator of the designated
facility to determine the status of the hazardous waste. The Respondent also must file an exception
report within 45 days. If a signed copy
of the manifest is not received within 60 days, the generator must submit a
legible copy of the manifest to the Commissioner indicating that a signed copy
of the manifest has not been received.
Respondent had not received a copy of the signed manifest for a February
10, 2006 shipment of 1,925-gallons of xylene to a treatment, storage, and
disposal facility. Respondent has not
filed an exception report for this shipment nor submitted a copy of the
manifest to the Commissioner. On
December 6, 2006, Respondent submitted to IDEM a copy of the manifest signed by
the TSD facility and an exception report.
j. Pursuant
to 329 IAC 13-4-3(d)(1), generators must label all used oil containers and
aboveground tanks with the words “Used Oil.”
Respondent did not label two 300-gallon totes of used oil with the words
“Used Oil.” The first tote was located
in Plant 2 and the second tote was in the Truck Dock Area. On December 6, 2006, Respondent submitted to
IDEM documentation that the used oil totes were properly labeled.
9. On
December 6, 2006, the parties met to discuss the above allegations.
10. In
recognition of the settlement reached, Respondent 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 the Complainant or his delegate, and has been received by
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2. Upon
the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR
262.34(a)(2). Specifically, Respondent
shall ensure that all containers of hazardous waste are properly labeled with
accumulation start dates.
3. Upon
the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR
262.34(c)(1)(ii). Specifically,
Respondent shall ensure that all satellite accumulation containers are marked
with either the words “Hazardous Waste” or with other words describing the contents
of the container.
4. Upon
the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR
273.13(d)(1). Specifically, Respondent
shall manage its universal waste in a manner that prevents releases to the
environment, which means that universal waste shall be stored only in closed
containers, and shall not be stored outside of containers.
5. Upon
the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC
3.1-16-2(4) and 40 CFR 273.14(e).
Specifically, Respondent shall ensure that all containers of mercury
containing waste are labeled in one of the following ways:
a. “Universal
Waste Mercury-Containing Lamps”
b. “Waste
Mercury-Containing Lamps”
c. Other
words that accurately identify the universal waste lamps.
6. Upon
the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR
273.15(a). Specifically, Respondent
shall ensure that universal waste is not stored on-site for more than one year.
7. Upon
the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC
13-4-3(d)(1). Specifically, Respondent
shall ensure that all containers of used oil are labeled with the words “Used
Oil.”
8. Within
ninety (90) days of the Effective Date of this Agreed Order, Respondent shall
recoat the concrete floor in the MG1 die rack storage area with an impermeable
coating.
9. Within
one hundred fifteen (115) days of the Effective Date of this Agreed Order, Respondent
shall submit to IDEM documentation that the concrete floor in the MG1 die rack
storage area has been recoated.
10. Upon
the Effective Date of this Agreed Order, Respondent shall clean up spills of used
oil in the die rack storage area on a daily basis.
11. All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
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Aubrey
N. Sherif |
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Senior
Environmental Manager |
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Office
of Enforcement Mail Code 60-02 |
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Indiana
Department of Environmental Management |
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12. Respondent
is assessed a civil penalty of Ten Thousand Two Hundred Dollars ($10,200). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. In the event that the
civil penalty is not paid within thirty (30) days of the Effective Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4-4.6-1-101. The interest shall
continue to accrue until the civil penalty is paid in full.
13. 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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Violation Penalty |
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Failure
to comply with Order paragraph 8 $250 per week |
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Failure
to comply with Order paragraph 9 $250 per week |
14. Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of stipulated
penalties shall not preclude Complainant from seeking any additional relief
against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, 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.
15. 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:
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Indiana
Department of Environmental Management |
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Cashier’s
Office Mail Code 50-10C |
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16. This
Agreed Order shall apply to and be binding upon Respondent and its successors
and assigns. Respondent's signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership, corporate, or
partnership status of Respondent shall in any way alter its status or
responsibilities under this Agreed Order.
17. 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.
18. 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 ensure that all contractors,
firms and other persons performing work under this Agreed Order comply with the
terms of this Agreed Order.
19. 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 its
obligation to comply with the requirements of its applicable permits or any
applicable Federal or State law or regulation.
20. 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.
21. 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 same violations specified in the NOV.
22. Nothing
in this Agreed Order shall prevent IDEM or anyone acting on its behalf from
communicating with the 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 EPA
or any other agency or entity.
23. This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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By: |
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By: |
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Nancy
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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Office of Legal Counsel |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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, 2007. |
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For The Commissioner: |
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Signed on April 9, 2007 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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