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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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COUNTY OF MARION |
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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. 2010-19343-H |
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CARLISLE
INDUSTRIAL BRAKE & FRICTION, 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 Indiana created by Indiana
Code (“IC”) 13-13-1-1.
2.
Respondent
is Carlisle Industrial Brake & Friction, Inc., which owns and/or operates a
facility with U.S. EPA I.D. number IND 115305781, located at 1441 Holland
Street in Logansport, Cass County, Indiana (the “Site”).
3. Respondent last notified the U.S. EPA
and IDEM of small quantity generator hazardous waste activities on October 31,
1996.
4. Respondent manufactured friction
materials for a variety of appliances and machinery. Since the date of the inspection, Respondent
has informed IDEM that it has ceased operations at the Site.
5. Pursuant to IC 13-30-3-3, IDEM issued a
Notice of Violation ("NOV") Certified Mail to:
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Joseph
J. Lavarra, President |
The
Prentice-Hall Corporation System, Inc. |
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Carlisle
Industrial Brake & Friction, Inc. |
Registered
Agent for |
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4040
Lewis & Clark Drive |
Carlisle
Industrial Brake & Friction, Inc. |
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Charlottesville,
VA 22911 |
251
East Ohio Street, Suite 500 |
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Indianapolis,
IN 46204 |
6. 329
IAC 3.1 incorporates certain federal hazardous waste management requirements
found in 40 CFR Parts 260 through 270, and Part 273 including these identified
below.
7. During an investigation including an
inspection on June 2, 2010, conducted by representatives 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
inspection, Respondent did not make hazardous waste determinations on the contents
of four (4) 55-gallon containers of "sander waste", two (2) 55-gallon
containers of "Union Pump Oil", one (1) 55-gallon container of
"Roof Coating", and one (1) 5-gallon bucket of unknown materials, all
which were solid waste(s) generated by Respondent.
Since the date of the
inspection, Respondent has provided documentation, including manifests, to IDEM
indicating that proper waste determinations have been made on the above
mentioned wastes and that they have been transported off-site for proper disposal.
b.
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 unless he has been granted an extension to the
180 day period.
As noted during the
inspection, Respondent stored over three hundred (300) gallons of waste toluene
in the T1 tank, located in the back yard area, for greater than 180 days
without complying with 40 CFR Part 264 and 40 CFR Part 270. The operation using toluene (U220) had ceased
over year one prior to the inspection date and the toluene remained in the tank
during that period. Additionally,
according to information presented by Respondent at the time of the inspection
(including a hazardous waste manifest dated April 28, 2009, believed to be the
last shipment of hazardous waste from the Site), the ten (10) 55-gallon drums
holding F003/F005/D001 hazardous wastes and possibly the eight (8) containers
which may contain hazardous wastes and are pending waste determinations per
Violation No. 7. a. above, have been stored at the
facility for over one (1) year. These
drums were also located in the back yard area.
Respondent provided
information at a settlement conference between the two parties on October 7,
2010, indicating that, although Respondent had ceased the process using
toluene, the toluene in the T1 tank was still considered usable product and
that a waste determination had not been made on the contents of the T1 tank at
the time of the IDEM inspection.
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
inspection, 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
inspection, 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 shall notify the commissioner of its hazardous waste activity on
the approved forms.
As noted during the
inspection, Respondent failed to notify the Commissioner of hazardous waste
storage activities.
f. Pursuant to 40 CFR 262.34(c)(1)(ii), a
generator may accumulate as much as 55 gallons of hazardous waste in containers
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.
As noted during the
inspection, Respondent accumulated hazardous waste in a container at or near
the point of generation without a permit and did not properly mark the
satellite accumulation container with either the words “Hazardous Waste” or
with other words describing the contents.
Since the date of the
inspection, Respondent labeled the satellite accumulation container and
provided documentation of such to IDEM.
g. Pursuant to 40 CFR 262.34(d)(2)
referencing 40 CFR 265.171, if a container holding hazardous waste is not in
good condition, or if it begins to leak, the generator must transfer the
hazardous waste from this container to a container that is in good condition.
As noted during the
inspection, Respondent did not store hazardous waste in containers that were in
good condition. Several of the
containers were bulging and/or seeping volatile organic compounds
("VOCs").
Since the date of the
inspection, Respondent transferred the hazardous wastes into containers in good
condition and provided documentation of such to IDEM.
h. Pursuant to 40 CFR 262.34(d)(2)
referencing 40 CFR 265.174, a generator must inspect areas where containers are
stored, at least weekly, looking for leaks and deterioration caused by
corrosion or other factors.
As noted during the
inspection, Respondent failed to conduct weekly inspections of the container
storage area(s), as noted by the bulging and seeping containers.
Since the date of the
inspection, Respondent assigned an employee to conduct weekly inspections.
i. 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
inspection, Respondent accumulated hazardous waste on-site, without a permit,
and failed to clearly mark hazardous waste containers with accumulation start
dates. None of the containers were
marked with start of accumulation dates.
Since the date of the
inspection, Respondent provided containers of hazardous waste with accumulation
start dates and provided documentation of such to IDEM.
j. 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, while being
accumulated on-site, each container and tank is labeled or marked clearly with
the words "Hazardous Waste."
As noted during the
inspection, Respondent accumulated hazardous waste on-site, without a permit,
and failed to mark hazardous waste containers and a tank with the words
"Hazardous Waste." None of the
containers or the T1 tank were marked with the words
"Hazardous Waste."
Since the date of the
inspection, Respondent provided containers and tanks holding hazardous wastes
with the words “Hazardous Waste” and provided documentation of such to IDEM.
k. Pursuant
to 40 CFR 262.34(d)(4) referencing 40 CFR 265.32, all facilities must be equipped
with with the following, unless none of the hazards posed by waste handled at the
facility could require a particular kind of equipment specified below; (a) An
internal communications or alarm system capable of providing immediate
emergency instruction (voice or signal) to facility personnel; (b) A device
such as a telephone (immediately available at the scene of operations) or a handheld
two-way radio, capable of summoning emergency assistance from local police departments,
fire departments, or State or local emergency response teams: (c) portable fire
extinguishers, fire control equipment (including special extinguishing
equipment, such as that using foam, inert gas, or dry chemicals), spill control
equipment, and decontamination equipment and (d) Water at an adequate volume
and pressure to supply water hose streams, or foam equipment, or automatic
sprinklers, or water spray systems. All
communications or alarm systems, fire protection equipment, spill control equipment,
and decontamination equipment, where required, must be tested and maintained as
necessary to assure its proper operation in time of emergency.
As noted during the
inspection, Respondent had not equipped the facility with spill control
equipment.
Since the date of the
inspection, Respondent provided documentation to IDEM indicating that the spill
control equipment was present at the time of the IDEM inspection.
l. Pursuant to 40 CFR 262.34(d)(5)(i), at all times there must
be at least one employee on the premises or on call (i.e. available to respond
to an emergency by reaching the facility within a short period of time) with
the responsibility for coordinating all emergency response measures
specified. This employee is the
emergency coordinator.
As noted during the
inspection, Respondent had not named an emergency coordinator in the emergency
plan.
Since the date of the
inspection, Respondent provided documentation to IDEM indicating that the
emergency coordinators, Noel Nixon and Dan Snyder, had been in place for years.
m. Pursuant to 40 CFR 262.34(d)(5)(ii), the
generator must post the following information next to the telephone: (1) the
name and phone number of the emergency coordinator; (2) location of fire
extinguishers and spill control material and, if present, fire alarm; (3) the
telephone number of the fire department, unless the facility has a direct
alarm.
As noted during the
inspection, Respondent failed to post the required information. The location of the spill control material
was not posted.
Since the date of the
inspection, Respondent provided documentation to IDEM indicating that the
required information regarding the location of the spill control material had
been posted at the time of the IDEM inspection.
n. Pursuant to 40 CFR 273.13(d)(1), a
small quantity handler of universal waste must contain any lamp in containers
or packages that are structurally sound, adequate to prevent breakage, and
compatible with the contents of the lamps.
Such containers and packages must remain closed and must lack evidence of
leakage, spillage or damage that could cause leakage under reasonably
foreseeable conditions.
As noted during the
inspection, Respondent failed to keep containers holding universal waste lamps
closed.
Since the date of the
inspection, Respondent closed the containers holding universal waste lamps and
provided documentation of such to IDEM.
o. Pursuant to 40 CFR 273.14(e) and 329
IAC 3.1-16-2(4), each lamp or container or package in which universal waste
lamps are contained must be labeled or marked clearly with the phrase
"Universal Waste-Lamp(s)," or "Waste Lamp(s)," or
"Used Lamp(s)," or with other words that accurately identify the
universal waste lamps.
As noted during the
inspection, Respondent did not label spent fluorescent light bulbs.
Since the date of the
inspection, Respondent labeled the containers holding spent fluorescent light
bulbs and provided documentation of such to IDEM.
p. Pursuant to 329 IAC 13-4-3(d),
generators must label all used oil containers and aboveground tanks with the
words “Used Oil.”
As noted during the
inspection, Respondent did not label one (1) used oil tote with the words “Used
Oil.”
Since the date of the
inspection, Respondent labeled the totes holding used oil and provided
documentation of such to IDEM.
q. Pursuant to 329 IAC 13-4-3(e), upon
detection of a release of used oil to the environment, a generator must do the
following: stop the release; contain the release; clean up the release; and
report the spill if necessary.
As noted during the
inspection, Respondent had not cleaned up a release(s) of used oil. Visual evidence of spilled oil was observed
in the used oil collection area.
Since the date of the
inspection, Respondent provided documentation, including photographs, to IDEM
showing that the release(s) of used oil in the used oil collection area has
been cleaned up.
r. Pursuant to 329 IAC 10-4-2, no person
shall cause or allow the storage, containment, processing, or disposal of solid
waste in a manner which creates a threat to human health or the environment,
including the creating of a fire hazard, vector attraction, air or water
pollution, or other contamination.
As noted during the
inspection, Respondent caused and/or allowed solid waste, including, but not
limited to, a sandy/dusty material resulting from industrial operations, to be
disposed at the Site in a manner which created a threat to human health or the environment. Visual evidence of these releases of
industrial process wastes was observed around seven (7) baghouse
collectors as well as in the container room for the 40-cubic yard roll-off.
Since the date of the
inspection, Respondent submitted documentation to IDEM demonstrating that the areas where
releases of industrial wastes occurred were all on concrete and were
subsequently cleaned up. Respondent also
submitted documentation that the wastes which were cleaned up were properly
transported and disposed of at a permitted facility.
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. In the future, if Respondent ever
resumes operations at the Site and becomes a generator of hazardous waste,
Respondent shall comply with all applicable requirements of 40 CFR 262.
3. Within forty five (45) days of the
Effective Date, Respondent shall submit three (3) hard copies and one complete
copy of the entire document on CD, in PDF format no greater than 100 megabytes
per file, of a hazardous waste closure plan for the back yard area where drums
holding hazardous waste for greater than one hundred eighty (180) days, and
which, in part, are the subject of Finding 7 b. above, were stored 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.
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:
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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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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
7. Respondent is assessed a civil penalty
of Twenty Five Thousand One Hundred and Eighteen Dollars ($25,118). 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:
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Failure to comply
with Order Requirement No. 3 |
$1,000 per week |
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Failure to comply
with Order Requirement No. 4 |
$500 per week |
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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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
11. 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.
12. Respondent understands and agrees that no
change in ownership, corporate or partnership status of Respondent shall in any
way alter its status or responsibilities specifically under this Order. However, as Respondent has represented to IDEM,
Respondent has entered into a contract for the purchase and sale of the Site
with a third party. After Respondent
completes all of the requirements of this Agreed Order, Respondent shall not be
responsible for any and all actions of the successor in interest to the title
of the land which is comprised by the Site, and Respondent shall have no
further 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(s) 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.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
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By:
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By: _________________________ |
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
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:
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By:
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Deputy Attorney General |
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Date:
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Date:
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APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS |
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201_. |
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For the Commissioner: |
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Signed on May 20, 2011 |
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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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