STATE OF |
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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. 2009-18433-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
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
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 |
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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 |
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Failure to comply with Order
Paragraph No. 4 |
$500 per week |
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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 |
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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: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section 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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DAY
OF |
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For the
Commissioner: |
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Signed on
10/05/09 |
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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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