STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2011-19999-H
					)
SUBARU OF INDIANA AUTOMOTIVE, INC.,					)
					)
Respondent.					)

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 Subaru of Indiana Automotive, Inc., which owns and/or operates a facility with U.S. EPA I.D. number IND 984866491, located at 5500 State Rd. 38 East in Lafayette, Tippecanoe County, Indiana (the “Site”).

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:

Motokiyo Nomura, President	Thomas V. Easterday, Registered Agent for
Subaru of Indiana Automotive, Inc.	Subaru of Indiana Automotive, Inc.
P.O. Box 5689	5500 State Rd. 38 East
Lafayette, IN 47903	Lafayette, IN 47903

5. Respondent is an automotive assembly plant.

6. Respondent last notified the U.S. EPA of Large Quantity Generator hazardous waste activities on March 1, 2007.

7. 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.

8. During an investigation including an inspection March 30, 2011, conducted by a representative of IDEM, the following violations were found:

a. 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, 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 did not label or clearly mark a Phosphate Oberlin Hopper with the words "Hazardous Waste." The label was torn and illegible.

b. Pursuant to 40 CFR 262.34(a)(1)(i) 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 adequate weekly inspections of the Phosphate Area. Spills at the area were not noted in the weekly inspection reports.

Complainant’s findings notwithstanding, Respondent contends that adequate weekly inspections have been performed of the Phosphate Area, including that inspection performed on the day preceeding IDEM’s March 30, 2011 inspection.

c. Pursuant to 40 CFR 262.34(a)(4), a generator may accumulate hazardous waste on site for 90 days or less without a permit provided that the waste is placed in containers, tanks, drip pads, or containment buildings that comply with the applicable requirements.

As noted during the inspection, Respondent allowed hazardous waste to accumulate in a sluice designed to collect minor leaks from the mixing equipment in the Main Paint Mix Room. Instead of only collecting minor leaks, the sluice contained approximately ¼ inch of hazardous waste. The sluice is not a container, tank, drip pad, or containment building, and therefore must be permitted if used to collect more than a de minimis amount of hazardous waste. The sluice accumulated D001, D035, and F003 hazardous waste, and Respondent did not have a permit for the sluice.

Complainant’s findings notwithstanding, Respondent contends that at the time of IDEM’s March 30, 2011 inspection the sluice contained an accumulation of minor leaks of paint waste from mixing equipment. Respondent presented information at a settlement conference between the two parties on October 7, 2011 and in a letter to IDEM dated November 1, 2011, attesting that it believed that the actual volume of hazardous wastes contained in the relevant 42-feet section of the sluice observed during the IDEM inspection was likely to have been less than 4.36 gallons.

Although Complainant initially was concerned with the potential for cracks in the sluice that may have allowed hazardous waste to have migrated into underlying soils, Respondent represented to Complainant at a subsequent settlement conference between the parties on February 17, 2012, that no cracks or other gaps were present in the sluice. IDEM confirmed the absence of cracks and other gaps in the sluice by a follow-up inspection conducted at Respondent’s facility on February 24, 2012.

d. 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 accumulated hazardous waste in a sluice, which is a unit that does not meet the exemption in 40 CFR 262.34(a) and therefore must be permitted if used to accumulate more than a de minimis amount of hazardous waste.

Complainant’s findings notwithstanding, Respondent contends that at the time of IDEM’s March 30, 2011 inspection the sluice contained an accumulation of minor leaks of paint waste.

e. 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 air, soil, or surface water which could threaten human health or the environment.

As noted during the inspection, Respondent failed to properly manage F019 filter cake at the Phosphate Area and D001, D035, F003 hazardous waste at the Main Paint Mix Room to minimize the possibility of a release to the environment. At the Phosphate Area, up to ½ inch of F019 hazardous waste was observed on the floor around the hoppers for the filter presses, on the presses themselves, and on the hopper ramps. At the Main Paint Mix Room, approximately ¼ inch of hazardous waste had collected in the sluice.

Complainant’s findings notwithstanding, Respondent contends that at the time of IDEM’s March 30, 2011 inspection, Respondent was properly managing wastes at the Phosphate Area and in the Main Paint Mix Room so as to minimize the possibility of a release to the environment. Respondent notified IDEM on March 31, 2011 that both the Phosphate Area and the Main Paint Mix Room were cleaned up after the inspection.

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 rules listed in the findings here and/or above at issue.

3. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that, while being accumulated on-site, each container and tank is labeled or marked clearly with the words "Hazardous Waste."

4. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174. Specifically, Respondent shall ensure that any spills at generator accumulation areas are included in inspections and that they are recorded in weekly inspection reports.

5. Within sixty (60) days of the Effective Date, Respondent shall decontaminate the sluice noted in Findings 8c. & d. above, as follows:

a. To the extent not already done as of the Effective Date, remove all wastes from the sluice and appropriately dispose;

b. To the extent not already done as of the Effective Date, mechanically clean the sluice by scraping, sweeping, or other method, to remove all physical contamination;

c. Wash the sluice with detergent to remove residues of the previously stored waste materials;

d. Rinse the sluice three (3) times with water;

e. Ensure that care is taken to prevent migration of cleaning liquids from the sluice area; and

f. Collect and dispose of all residues and rinsates as hazardous waste unless the residues and rinsates are analyzed and determined to be non-hazardous;

6. Within fifteen (15) days of completing the decontamination required in Order 5 above, Respondent shall provide documentation to IDEM demonstrating that the work has been completed.

7. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(4) referencing 40 CFR 265.31. Specifically, Respondent shall ensure that the facility is 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 air, soil, or surface water which could threaten human health or the environment.

8. Upon the Effective Date, Respondent shall use the sluice to collect only minor leaks and shall immediately clean the sluice in the event of a spill. No later than July 25, 2012, Respondent will fill in the sluice with concrete to a height flush with the surrounding floor of the Main Paint Mix Room.

9. 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

10. Respondent is assessed a civil penalty of Seven Thousand Two Hundred Dollars ($7,200). 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.

11. 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. 5	$500 per week
Failure to comply with Order paragraph No. 6	$500 per week

12. 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.

13. 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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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		_________	DAY OF	___________________,	201_.
				For the Commissioner:
				Signed on May 9, 2012
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality