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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No.
2009-18342-H |
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BASF CONSTRUCTION CHEMICALS, LLC, |
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Respondent. |
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AGREED ORDER
Complainant and
Respondent desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order. Pursuant
to 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 BASF Construction Chemicals, LLC (“Respondent”), which owns and/operates the
facility with United States Environmental Protection Agency ("EPA") ID
No. INR000107151, located at
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation ("NOV") via Certified
Mail to:
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Richard Kurey |
CT Corporation, Registered Agent
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BASF Construction Chemicals, LLC |
BASF Construction Chemicals, LLC |
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5. Respondent most recently notified the
U.S. EPA of hazardous waste generator activities on December 21, 2006. Respondent notified as a large quantitiy
generator of hazardous waste, but was generating between 100 and 1000 kilograms
at the time of the IDEM inspection, thereby subjecting the facility to the
requirements of small quantity generators.
6. Respondent
is a distribution warehouse for various construction materials. Hazardous wastes are generated at the Site as
a result of expired products that are removed from the warehouse racks.
7. 329
IAC 3.1 incorporates certain federal hazardous waste management requirements
found in 40 CFR Parts 260 through 270 and Part 273, including those identified
below.
8. During
an investigation including an inspection on August 21, 2008 and a record review
on February 9, 2009, conducted by a representative of IDEM, the following
violations were found:
a.
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.
As notified during the
investigation, Respondent stored hazardous waste at the Site for more than 180
days, thereby subjecting the facility to the requirements of 40 CFR Part 264
and the permit requirements of 40 CFR Part 270.
All containers holding hazardous waste in the Flammable Room, including
one (1) 55-gallon container, one (1) 20-gallon container, twenty (20) 10-gallon
containers, two (2) 5-gallon containers, one (1) 1-gallon container, and one
(1) box of hazardous waste, were stored for more than 180 days.
b.
Pursuant
to 40 CFR 270.1(c), a permit is required for the
treatment, storage and disposal of any hazardous waste as identified or listed
in 40 CFR Part 261.
As noted during the investigation,
Respondent stored hazardous waste identified or listed in 40 CFR Part 261
without a permit.
c. Pursuant
to IC 13-30-2-1(10), a person may not commence or engage in the operation of a
hazardous waste facility without having first obtained a permit from the
department.
As noted during the investigation,
Respondent operated a hazardous waste facility without having first obtained a
permit from the department.
d.
Pursuant
to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or
operator of a hazardous waste facility, must notify the Commissioner of its
hazardous waste activity on the approved forms.
As noted during the investigation,
Respondent failed to notify the Commissioner of hazardous waste storage
activities.
e.
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 days or less without a permit, provided that the
date when the accumulation begins is clearly marked and visible for inspection
on each container.
As noted during the investigation,
Respondent accumulated hazardous waste on-site, without a permit, and failed to
clearly mark hazardous waste containers with accumulation start dates. All containers holding hazardous waste in the
Flammable Room lacked accumulation start dates.
f.
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."
As noted during the investigation,
Respondent accumulated hazardous waste on-site, without a permit, and failed to
mark hazardous waste containers with the words "Hazardous
Waste." All containers holding
hazardous waste in the Flammable Room lacked the words "Hazardous
Waste."
g.
Pursuant
to 40 CFR 262.34(d)(5), a generator must implement certain measures to address
an emergency situation.
As noted during the investigation,
Respondent did not implement these measures to address an emergency situation. Respondent did not have the following
information posted: 1) The name and
phone number of the emergency coordinator; 2) Location of fire extinguishers
and spill control material, and, if present, fire alarm; and 3) The telephone
number of the fire department, unless the facility has a direct alarm.
9. 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
Complainant or Complainant’s delegate, and has been received by
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2.
Respondent
shall comply with the statutes and rules listed in the findings here and/or
above at issue.
3.
Within
thirty (30) days of the Effective Date, Respondent shall submit documentation
to IDEM demonstrating that all hazardous wastes which had been stored at the
Site for more than 180 days have been properly transported off-site to a
permitted disposal facility.
4. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
decontaminate the hazardous waste container storage area noted in Finding 8a.
above, hereinafter referred to as “the pad”, as follows:
a. remove
all wastes from the pad and appropriately dispose;
b. mechanically
clean the pad by scraping, sweeping, or other method, to remove all physical
contamination;
c. inspect
the pad for cracks. If cracks are
detected, perform Item j. at this point;
d. wash
the pad with a high pressure steam cleaner with detergent or appropriate
solvent to remove the previously stored waste materials;
e. rinse
the pad three (3) times with water;
f. collect
the third (final) rinsate separately and analyze two (2) samples to show that
the pad’s surface meets the cleanup levels.
For inorganic and certain organic parameters, the cleanup levels of the
rinsate will be based on the Maximum Contaminant Levels (MCLs) of the National
Primary Drinking Water Regulations (40 CFR 141). For the organic parameters without MCLs,
the cleanup levels of the rinsate will be based on the analytical methods’
Estimated Quantitation Limits (EQLs), as defined in SW-846. The analytical parameters will be based on
wastes previously stored on the pad;
g. the
decontamination procedure shall be repeated until the cleanup levels are met;
h. ensure
that care is taken to prevent migration of cleaning liquids from the pad area;
i. collect
and dispose of all residues and rinsates as hazardous waste unless the residues
and rinsates are analyzed and determined to be non-hazardous;
j. sample
the soil underlying any cracks found in the inspection to check for
contamination. If no contamination is
found, seal the cracks and proceed with Items d. through i. above;
k. if
contamination is found, submit a hazardous waste closure plan within sixty (60)
days to IDEM for approval for the container storage area in accordance with the
provisions of 40 CFR 264 Subpart G, as incorporated by 329 IAC 3.1-9-1;
l. upon
notice of approval of the closure plan by IDEM, implement the approved plan in
accordance with the time frames contained therein.
5. Within
fifteen (15) days of completing the decontamination required in Order 4,
Respondent shall submit documentation, including sample results, that the
decontamination has been completed to IDEM for review. Analytical results submitted to IDEM for
review shall include signed chain-of-custody sheets, sampling dates, analysis
dates, analytical methods used, MCLs, EQLs and quality control results. The quality assurance/quality control (QA/QC)
results shall include initial and continuing calibration results, blank
results, matrix duplicates, and matrix spike/matrix spike duplicate results.
6. In
the event IDEM determines that any plan submitted by Respondent is deficient or
otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM
in accordance with IDEM's notice. After
three (3) submissions of such plan by Respondent, IDEM may modify and approve
any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into
this Agreed Order and shall be deemed an enforceable part thereof.
7. Within
thirty (30) days of the Effective Date, Respondent shall submit documentation
to IDEM detailing the steps taken at the Site to minimize the possibility of a recurrence
of hazardous waste being accumulated at the Site for greater than the
timeframes allowed in 40 CFR 262.34, i.e., 90 days for a large quantity
generator and 180 days for a small quantity generator.
8. Upon
the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that hazardous
waste containers are clearly marked with accumulation start dates.
9. Upon
the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that hazardous
waste containers are clearly marked with the words "Hazardous Waste."
10. Within
thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR 262.34(d)(5). Specifically, Respondent shall submit
documentation to IDEM detailing the measures taken to address an emergency
situation.
11. Upon
the Effective Date, Respondent shall comply with all applicable requirements of
40 CFR 262.34 (a) whenever Respondent acts as a large quantity generator during
a calendar month.
12. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Brenda Lepter, Enforcement Case
Manager |
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Office of Land Quality – Mail Code
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Indiana Department of
Environmental Management |
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13. Respondent
is assessed a civil penalty of Eight Thousand Two Hundred Dollars ($8,200). 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 24-4.6-1-101. The interest shall continue to accrue until
the civil penalty is paid in full.
14. 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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Failure to comply with Order
Requirement No. 3 |
$500 per week |
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Failure to comply with Order
Requirement No. 4 |
$500 per week |
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Failure to comply with Order
Requirement No. 5 |
$500 per week |
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Failure to comply with Order
Requirement No. 6 |
$500 per week |
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Failure to comply with Order
Requirement No. 7 |
$500 per week |
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Failure to comply with Order
Requirement No. 10 |
$250 per week |
15. 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.
16. 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 – Mail Code 50-10C |
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17. 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.
18. 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.
19. 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.
20. 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 permit[s] or any applicable Federal or State
law or regulation.
21. 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.
22. 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.
23. 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.
24. This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy L. Johnston, Chief |
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Enforcement Section |
Printed: ______________________ |
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Office of Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental
Management |
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By: ________________________ |
By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
Date: ______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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For the
Commissioner: |
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Signed on
April 15, 2009_____ |
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Bruce H Palin |
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Assistant
Commissioner |
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Office of
Land Quality |
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