STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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Complainant,

 

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v.

 

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Case No. 2009-18433-H

 

 

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FLEX-N-GATE CORPORATION,

 

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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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is Flex-N-Gate Corporation (“Respondent”), which owns and/or operates the facility with United States Environmental Protection Agency ("EPA") ID No. IND 005446729, located at 11778 S. 600 W. in Covington, Warren County, Indiana (“Site”).

 

3.                  IDEM has jurisdiction over the parties and the subject matter of this action.

 

4.          Respondent waives issuance of a Notice of Violation and to the settlement period of sixty (60) days as provided for by IC 13-30-3-3.

5.          Respondent had notified EPA of Conditionally Exempt Small Quantity Generator activities on February 16, 2007.  However, as reported in an April 1, 2009 self disclosure to IDEM, Respondent had stored hazardous waste at the Site for greater than 90 days, thereby subjecting             the Site to the requirements of 40 CFR 264 for storage facilities.  The hazardous wastes had been      left behind by a previous owner.

 

6.          The Site is a warehouse and distribution facility, which is used primarily for storage of vehicle bumpers manufactured at another facility owned and or operated by Respondent.  Respondent acquired the facility in 1999.  The previous owner manufactured cellophane at the Site until 1997.

 

7.          During the previous owner's operation of the cellophane manufacturing plant, it used two 15,000 gallon tanks located in an outdoor concrete vault to store carbon disulfide (CS2) used in the manufacture of cellophane.  Up until the time of the events reported in the self-disclosure, the two tanks in the vault were submerged in water and the vault was covered with a wood deck.  In addition to the two 15,000 gallon tanks, there are four smaller former process tanks located in the basement of a building at the Site.  At the time of the purchase in 1999, Respondent believed that the previous owner had removed the contents of these tanks, triple rinsed the tanks, and filled the tanks with a nitrogen blanket in 1997.  Respondent assumed that the previous owner had complied with the applicable tank closure requirements.  Respondent has not used any of these tanks during its ownership of the property and has not used CS2 in its operations.

 

8.          On either February 7 or 8, 2009, one of tanks ('the south tank') in the vault broke away from the steel binders which had secured it to the floor of the vault and rose to the surface of the vault.  The tank pushed up the wood deck.  Sampling of the contents of the south tank in the vault, as well as vault water, detected the presence of CS2, indicating that at least one of the tanks in the vault and possibly the four in the basement may have not been properly closed per the hazardous waste requirements by the previous owner.  Respondent subsequently detected the presence of CS2 in each of the four tanks located in the basement of the former production building and is in the process of determining the contents of the north tank in the vault.

 

9.          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.

10.       On April 1, 2009, Respondent voluntarily disclosed violations of 329 IAC 3.1 to IDEM.  The self-disclosure was in accordance with IDEM’s Self-Disclosure and Environmental Audit Policy.  Based on the self-reporting, the following violations were in existence:

a.        Pursuant to IC 13-30-2-1(10) and 40 CFR 270.1(c), no person may commence or engage in the operation of a hazardous waste facility without having first obtained a permit from IDEM.

As reported in the self-disclosure, Respondent stored CS2 in at least one tank, the south tank, and the vault surrounding the south tank without first having obtained a permit from IDEM.  Respondent subsequently detected the presence of CS2 in each of the four tanks located in the basement of the former production building and is in the process of determining the contents of the north tank in the vault

b.        Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste storage facility shall notify the Commissioner of such activities on forms provided by the Commissioner.

 

As reported in the self-disclosure, Respondent failed to notify the Commissioner of storage activities.

 

c.        Pursuant to 40 CFR 264.1(b), owners and operators of all facilities which treat, store, or dispose of hazardous waste must comply with the standards of 40 CFR Part 264.

 

As reported in the self-disclosure, Respondent failed to comply with the standards of 40 CFR Part 264.

 

d.        Pursuant to 40 CFR 268.50(a)(2), the storage of hazardous wastes restricted from land disposal is prohibited unless each container is clearly marked to identify its contents and the date each period of accumulation begins and each tank is marked with the same, unless the information for each tank is recorded and maintained in the operating record at the facility.

 

As reported in the self-disclosure, Respondent stored hazardous waste restricted from land disposal in a tank(s) without clearly marking the contents and the date each period of accumulation began, and did not record the information in an operating record.

11.       Respondent submitted a Waste Analysis Plan to IDEM on May 18, 2009 and a revised Waste Analysis Plan on May 22, 2009.  Due to the highly flammable nature of CS2 and the hazards associated with handling CS2, IDEM concurred that the treatment and containment of the contents of the tanks, piping and tank vault within the tanks and the removal and the transportation for disposal of the treated tank contents and the piping and tanks as described in the Waste Analysis Plan may be conducted as immediate response activities pursuant to 40 CFR 264.1(g)(8).

12.       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, Respondent shall submit to IDEM for approval four (4) copies of a hazardous waste closure plan for the four tanks in the basement of the former production building, the south tank and the surrounding vault and, if determined to contain hazardous waste, the north tank.  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.

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.          All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Brenda Lepter, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.          Respondent is assessed a civil penalty of Five Thousand Six Hundred and Twenty Five Dollars ($5,625).  This penalty amount reflects a significant reduction based on the applicability of IDEM’s Nonrule “Self-Disclosure and Environmental Audit Policy” to Respondent’s self-disclosure of the violations.  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.

8.          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:

 

Failure to comply with Order Paragraph No. 3

$1,000 per week

 

 

Failure to comply with Order Paragraph No. 4

$500 per week

 

 

Failure to comply with Order Paragraph No. 5

$500 per week

 

9.          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.

 

10.       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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.       Force majeure, for purposes of this Agreed Order, is defined as any event arising from causes totally -beyond the control and without fault of Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent’s best efforts to fulfill the obligation.  The requirement that Respondent exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible.  Force majeure does not include (1) changed business or economic conditions; (2) financial inability to complete the work required by this Agreed Order; or (3) increases in costs to perform the work.  Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which Respondent contends is a force majeure.  Such notification shall describe (1) the anticipated length of the delay; (2) the cause or causes of the delay; (3) the measures taken or to be taken by Respondent to minimize the delay; and (4) the timetable by which these measures will be implemented.  Respondent shall include with any notice all available documentation supporting its claim that the delay was attributable to a force majeure.  Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event.  Respondent shall have the burden of demonstrating that the event is a force majeure.  The decision of whether an event is a force majeure shall be made by IDEM.

If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the force majeure.

12.       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.

 

13.       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.

 

14.       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.

 

15.       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.

 

16.       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.

 

17.       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.

 

18.       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.

 

19.             This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

 

By: _________________________

By:  _________________________

 

Nancy Johnston, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: __________________

Date: _______________________

 

 

 

 

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

By: ________________________

By: ________________________

 

Deputy Attorney General

 

 

 

Date: _______________________

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

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DAY OF

___________________

, 200

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For the Commissioner:

 

 

 

Signed on 10/05/09

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality