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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v. |
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Case No. 2011-20008-H |
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michael’s
quality wood refinishing |
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AND STRIPPING, 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 Michael’s Quality Wood Refinishing and Stripping, Inc. (“Respondent”), which
owns and operated a facility with United States Environmental Protection Agency
(“EPA”) ID No. INR000124354, located at 1445 South
Street, in New Albany, Floyd County, Indiana (“Site”).
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, on August 8, 2011, IDEM issued a Notice of Violation (“NOV”)
via Certified Mail to:
Mr. Michael S. White, President
and Registered Agent |
Michael’s Quality Wood Refinishing
and Stripping, Inc. |
1920 Division Street |
New Albany, Indiana 47150 |
5. Respondent notified the EPA and IDEM of
Conditionally Exempt Small Quantity Generator (“CESQG”) activities on June 5,
2010.
6.
Respondent
repairs, refinishes and restores furniture.
7.
Respondent
informed IDEM on July 8, 2011, that the business has moved from 1445 South
Street, New Albany, Indiana to 1920 Division Street, New Albany, Indiana.
8.
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.
9.
During
an investigation on March 17, 2011, conducted by a representative of IDEM, the
following violations were found:
a. Pursuant to 40 CFR 262.34(d)(1), a
generator who generates greater than 100 kilograms but less than 1000 kilograms
of hazardous waste in a calendar month may accumulate hazardous waste on-site
for 180 days or less without a permit provided that the quantity of waste
accumulated on-site never exceeds 6000 kilograms. Respondent generated greater than 100
kilograms but less than 1000 kilograms of hazardous waste in a calendar month
and accumulated in excess of 6000 kilograms of hazardous waste without
obtaining a permit.
b. 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. Respondent failed to obtain a permit from the
department prior to commencing or engaging in the operation of a hazardous
waste facility.
c. 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. Respondent stored hazardous waste on-site in
the waste storage area for greater than 180 days without complying with 40 CFR
Part 264 and 40 CFR Part 270.
Specifically, Respondent stored eight (8) 55-gallon containers of
stripping waste for greater than 180 days at the Site.
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.
Respondent stored hazardous waste identified or listed in 40 CFR Part
261 without a permit.
e. Pursuant to 40 CFR 262.11, a person who
generates a solid waste must determine if that waste is hazardous. Respondent did not make hazardous waste
determinations on twenty (20) one gallon containers of paint like material, a
solid waste, generated by Respondent.
f. Pursuant to 40 CFR 262.34(d)(2) referencing 40 CFR 265.173(a), a container holding
hazardous waste must always be closed during storage, unless necessary to add
or remove waste. Respondent did not
store two (2) 55-gallon containers of hazardous waste, located in the stripper
room, closed.
g. 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. Respondent accumulated
hazardous waste on-site, without a permit, and failed to clearly mark eight (8)
hazardous waste containers with accumulation start dates.
h. 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 the containers are
marked with the words "Hazardous Waste." Respondent accumulated hazardous waste
on-site, without a permit, and failed to mark eight (8) hazardous waste
containers with the words "Hazardous Waste."
i. 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. Respondent
accumulated hazardous waste in one (1) 55-gallon container and two (2) five
gallon containers at or near the point of generation without a permit and did
not properly mark satellite accumulation containers with either the words
“Hazardous Waste” or with other words describing the contents.
j. Pursuant to 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a), a container holding
hazardous waste must always be closed during storage, except when it is
necessary to add or remove waste.
Respondent did not store one (1) 55-gallon container and two (2) five
gallon containers of hazardous waste closed.
k. 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. Respondent failed to post the
required information.
l. Pursuant to 40 CFR 262.34(d)(5)(iii), the generator must ensure that all employees are
thoroughly familiar with proper waste handling and emergency procedures,
relevant to their responsibilities during normal facility operations and
emergencies. Respondent failed to ensure
employees were thoroughly familiar with proper waste handling and emergency
procedures.
m. Pursuant to 40 CFR 262.34(d)(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 a hazardous waste or hazardous waste constituents to air, soil, or
surface water, which could threaten human health or the environment. Respondent failed to properly manage the wood
stripping and waste storage areas to minimize a release to the environment.
10. On August 18, 2011, Respondent provided
documentation of compliance with 40 CFR 262.11, 40 CFR 262.34(d)(5)(ii), 40 CFR 262.34(d)(5)(iii) and submitted an updated
Hazardous Waste Handler ID Form.
11. 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 in the findings here and/or above at issue.
3. Within thirty (30) days of the
Effective Date of this Agreed Order, Respondent shall decontaminate the
hazardous waste container storage area noted in Finding
8c, hereinafter referred to as “the pad”.
Respondent conducted a wash of the pad and collected one sample of rinsate for analysis on May 5, 2011; however, the following
steps are still required:
a. inspect the pad for cracks. If cracks
are detected, perform Item h. at this point;
b. wash the pad with a high pressure steam
cleaner with detergent or appropriate solvent to remove the previously stored
waste materials;
c. rinse
the pad three (3) times with water;
d. collect the third (final) rinsate separately and analyze two (2) samples to show that
the pad’s surface meets the cleanup levels.
For inorganic and certain organic parameters, the cleanup levels of the rinsate will be based on the Maximum Contaminant Levels
(MCLs) of the National Primary Drinking Water Regulations (40 CFR 141). For the organic parameters without MCLs,
the cleanup levels of the rinsate will be based on
the analytical methods’ Estimated Quantitation Limits
(EQLs), as defined in SW-846. The
analytical parameters will be based on wastes previously stored on the pad;
e. the decontamination procedure shall be
repeated until the cleanup levels are met;
f. ensure that care is taken to prevent
migration of cleaning liquids from the pad area;
g. collect and dispose of all residues and
rinsates as hazardous waste unless the residues and rinsates are analyzed and determined to be non-hazardous;
h. sample the soil underlying any cracks
found in the inspection to check for contamination. If no contamination is found, seal the cracks
and proceed with Items d. through i. above;
i. if contamination is found, submit a
hazardous waste closure plan within sixty (60) days to IDEM for approval for
the container storage area in accordance with the provisions of 40 CFR 264
Subpart G, as incorporated by 329 IAC 3.1-9-1;
j. upon notice of approval of the closure
plan by IDEM, implement the approved plan in accordance with the time frames
contained therein.
4. Within fifteen (15) days of completing
the decontamination required in Order 3, Respondent shall submit documentation,
including sample results, that the decontamination has been completed to IDEM
for review. Analytical results submitted
to IDEM for review shall include signed chain-of-custody sheets, sampling
dates, analysis dates, analytical methods used, MCLs, EQLs and quality control
results. The quality assurance/quality control
(QA/QC) results shall include initial and continuing calibration results, blank
results, matrix duplicates, and matrix spike/matrix spike duplicate results.
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. Respondent shall comply with 40 CFR
270.1(c), IC 13-30-2-1(10) and 40 CFR 262.34(d)(1). Specifically, Respondent shall not store
hazardous waste without a Permit.
7. Respondent shall comply with 40 CFR
262.34(f). Specifically, Respondent
shall not store hazardous waste on-site for greater than 180 days without complying
with 40 CFR 264 and 40 CFR 270.
8. Respondent shall ensure compliance with
40 CFR 262.34(a)(3) and 40 CFR 262.34(c)(1)(ii). Specifically, that each
hazardous waste container is labeled or marked clearly with the words
"Hazardous Waste."
9. Respondent shall ensure compliance with
40 CFR 265.173(a). Specifically,
Respondent shall ensure that each container holding hazardous waste is kept
closed during storage, unless necessary to add or remove waste.
10. Respondent shall ensure compliance with
40 CFR 262.34(a)(2).
Specifically, that the date when the accumulation
begins is clearly marked and visible for inspection on each hazardous waste
container.
11. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
Linda McClure, Enforcement Case
Manager |
Office of Enforcement – Mail Code
60-02 |
Indiana Department of
Environmental Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
12. Respondent is assessed and agrees to pay a
civil penalty of Six Thousand Eight Hundred and Eighty Dollars ($6,880). This penalty will be combined with the civil
penalty amount remaining from Case No. 2008-17860-H, which is Three Thousand
One Hundred Twenty Dollars ($3,120).
Therefore, the total civil penalty amount due and payable to the
Environmental Management Special Fund is Ten Thousand Dollars ($10,000). Said penalty amount shall be paid in
thirty-six (36) consecutive months.
Three Hundred and Five Dollars ($305) is due upon the Effective
Date. The remaining amount of Nine
Thousand Six Hundred Ninety-Five Dollars ($9,695) shall be due in thirty-five
(35) consecutive monthly payments of Two Hundred Seventy-Seven Dollars ($277);
the 30th day being the “Due Date”.
13. 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:
Paragraph |
Penalty |
3 - Failure to perform Pad Decon. |
$500 per week or part thereof |
4 -
Failure to submit Pad Decon Report. |
$250 per week or part thereof |
14. Stipulated penalties shall be due and
payable no later than the 30th day after Respondent receives written
notice that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
15. 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 |
16. In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1. The interest shall be
computed as having accrued from the Due Date until the date that Respondent
pays any unpaid balance. Such interest
shall be payable to the Environmental Management Special Fund, and shall be
payable to IDEM in the manner specified in Paragraph 12, above.
17. 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.
18.
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.
19.
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.
20.
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 permits or any applicable Federal or State law
or regulation.
21.
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
Respondents may incur as a result of Respondent’s efforts to comply with this
Agreed Order.
22.
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.
23.
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.
24.
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:
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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 Land Quality |
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Title:
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Date: __________________ |
Date:
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COUNSEL FOR RESPONDENT: |
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By:
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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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DAY OF |
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For
the Commissioner: |
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Signed
June 28, 2012 |
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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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