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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE
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OF ENVIRONMENTAL
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Complainant, |
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Case No. 2009-18366-H |
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PRODUCTION PLATING CO.,
INC., |
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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 Production Plating Co., Inc. (“Respondent”), which
owns and/or operates a facility with U.S. EPA I.D. number IND 985049717,
located at 2221 Yandes Street in Indianapolis, Marion County, Indiana (the
"Site").
3. Respondent originally notified as a large quantity generator
of hazardous waste in 1992, but notified IDEM on March 12, 2008, that
operations at the Site had ceased in 2007.
Respondent was still in the process of removing old equipment,
materials, and wastes at the time of the IDEM inspection.
4. Before ceasing operations, Respondent's processes included
chrome, nickel, copper, and zinc electroplating, and black oxide plating. Hazardous wastes generated included, but were
not limited to, F006 plating wastewater treatment sludges, various D007
chrome-contaminated wastes, D002 corrosive wastes, and F007 cyanide solution
wastes.
5. IDEM has jurisdiction over the parties
and the subject matter of this action.
6. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation ("NOV")
via Certified Mail to:
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Allen L. Williamson,
President |
John Carr III, Registered
Agent for |
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Production Plating Co.,
Inc. |
Production Plating Co.,
Inc. |
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7. During an investigation, including an inspection conducted on
September 11, 2008, by a representative of IDEM, the following violations were
found:
a. Pursuant to 40 CFR 262.11, a person who generates a solid
waste must determine if that waste is hazardous.
As noted during the investigation, Respondent did not
make hazardous waste determinations on significant amounts of liquid and solid
containerized and uncontainerized wastes throughout the facility, all which
were solid waste(s) generated by Respondent.
The wastes included, but are not limited to, a solid waste pile and
pooled water on the floor of the Automatic Line Area; three (3) drums in the
Hoist Line Area; nine (9) poly drums across from the Waste Water Treatment
Plant; one (1) bag of solid waste in the Hazardous Waste storage area (NE
corner of the building); three (3) bath tanks, seven (7) drums, and one (1)
blue poly drum at the Black Oxide Area (north wall); one (1) bath tank, two (2)
drums, and solid waste on the floor at the Black Oxide Area (west center); one
(1) bath tank, five (5) poly drums, one (1) miscellaneous drum (west side), and
pooled water on the floor of the Chrome Area.
In response to the IDEM inspection, Respondent
submitted information regarding waste determinations to IDEM on January 13,
2009. However, IDEM has determined that
a more specific accounting of the regulatory status and disposition of the
wastes noted above is needed. The
information provided to IDEM does indicate that some of the wastes present
on-site at the time of the inspection are hazardous.
Respondent provided supplemental information
regarding waste determinations to IDEM on September 9, 2009.
b. Pursuant to 40 CFR 262.34(b), a generator who accumulates
hazardous waste for more than 90 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 noted during the investigation, Respondent stored
hazardous waste on-site for greater than 90 days without complying with 40 CFR
Part 264 and 40 CFR Part 270. Manifests
show that the last shipments of hazardous wastes from the Site previous to
IDEM's investigation had been on November 13, 2006.
c. 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.
d. 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.
e. 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.
f. 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.
As noted during the investigation, Respondent
accumulated hazardous waste on-site, without a permit, and did not mark
hazardous waste containers with accumulation start dates.
g. 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 the
containers are labeled or marked clearly with the words "Hazardous
Waste."
As noted during the investigation, Respondent
accumulated hazardous waste on-site, without a permit, and did not label or
clearly mark hazardous waste containers with the words "Hazardous
Waste."
h. Pursuant to 40 CFR 262.34(a)(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.
As noted during the investigation, Respondent did not
keep containers of hazardous waste closed.
i. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31,
facilities must be maintained and operated to minimize the possibility of a
fire, explosion, or any unplanned sudden or non-sudden release of hazardous
waste or hazardous waste constituents to the air, soil, or surface water, which
could threaten human health or the environment.
As noted during the investigation, Respondent failed
to properly manage containers and piles of wastes to minimize a release to the
environment. Containers were kept open
and piles of uncovered wastes were placed on the floor, thereby failing to
minimize the possibility of a release of hazardous waste or hazardous waste
constituents to the air, soil, or surface water, which could threaten human
health or the environment.
j. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.32,
all facilities must be equipped with an internal communications or alarm
system; a device such as a telephone or hand-held two-way radio; and fire
control, spill control, and decontamination equipment.
As noted during the investigation, Respondent did not
equip its facility with an internal
communications or alarm system; a device such as a telephone or hand-held
two-way radio; and fire control, spill control, and decontamination equipment.
k. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.34,
whenever hazardous waste is being handled, all personnel involved with the
operation must have access to an internal alarm or emergency communication
device, either directly or through visual or voice contact with another
employee.
As noted during the investigation, Respondent did not
make an internal alarm or emergency communication device available to
employees.
l. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.51,
a generator must have a contingency plan.
As noted during the investigation, Respondent did not
have a contingency plan.
m. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a),
(b), & (c), facility personnel must complete a program of classroom
instruction or on-the-job training that teaches them to perform their duties in
compliance with the hazardous waste management rules. Employees must be trained within six months
after their date of hire and must take part in an annual review of the initial
training.
As noted during the investigation, Respondent did not
provide employees with initial and/or annual hazardous waste training.
8. 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 statutes and rules listed in
the findings here and/or above at issue.
3. Within thirty (30) days of the Effective Date of this Agreed
Order, Respondent shall submit four (4) copies of a hazardous waste closure
plan for all areas of the Site where hazardous wastes were stored for greater
than 90 days to IDEM for approval. This
closure plan shall be completed in accordance with the provisions of 40 CFR 264
Subpart G, as incorporated by 329 IAC 3.1-9-1.
The areas to be addressed should include, but not be limited to, the
hazardous waste storage area, the black oxide area, the chrome area, and the
automatic line area where the waste pile and pooled water were located.
4. Within ten (10) days of notice of IDEM’s approval of the
closure plan, Respondent shall implement the plan as approved and in accordance
with the time frames contained therein.
5. 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.
6. Upon the Effective Date, if Respondent generates hazardous
waste, Respondent shall comply with all applicable requirements of 40 CFR
262.34.
7. Within thirty (30) days of the Effective Date, Respondent
shall submit a Biennial Report and/or the IDEM annual manifest report to IDEM,
pursuant to IC 13-22-4-3.1(c) and 329 IAC 3.1-7-14.
8. 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 60-02L |
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Indiana Department of Environmental Management |
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9. Respondent is assessed a civil penalty of Fifteen Thousand Six
Hundred and Twenty Five Dollars ($15,625).
Said penalty amount shall be due and payable to the Environmental Management
Special Fund in twelve monthly installments
of $1,302.08 each, beginning with the first due within thirty (30) days of the
Effective Date and the final due within three hundred and sixty five days (365)
of the Effective Date. In the event that
the civil penalty is not paid according to the timeframes set forth in this
Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established
by IC 24-4.6-1-101. The interest shall
continue to accrue until the civil penalty is paid in full.
10. 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 Paragraph# 3 |
$1000 per week |
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Failure to comply with
Order Paragraph# 4 |
$500 per week |
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Failure to comply with
Order Paragraph# 5 |
$500 per week |
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Failure to comply with
Order Paragraph# 7 |
$500 per week |
11. 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.
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:
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Indiana Department of Environmental Management |
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Cashier – Mail Code 50-10C |
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13. 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.
14. 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.
15. 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.
16. 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 or any
applicable Federal or State law or regulation.
17. 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.
18. 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.
19. 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.
20. 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
Johnston, Chief |
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Enforcement
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Printed: ______________________ |
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Office of
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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
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For the Commissioner: |
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Signed on May 26, 2010 |
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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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