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. 2011-20423-H
					)
PADGETT INCORPORATED,					)
					)
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 Padgett Incorporated (“Respondent”), which owns and/or operates the facility with United States Environmental Protection Agency (EPA) ID No. IND 016 552 267, located at 901 E. 4^th 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, IDEM issued a Notice of Violation (NOV) via Certified Mail to:

James R. Padgett, President and Registered Agent

Padgett Incorporated

901 E. 4^th Street

New Albany, IN 47150

5. Respondent most recently notified EPA of Small Quantity Generator activities on February 10, 2010.

6. Respondent fabricates structural steel parts for cranes. Processes include punching, cutting, plasma cutting, shaving, sandblasting, and spray painting. Other services provided include but limited to crane fleet rental, industrial repair services, and heavy rigging and hauling.

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 on August 5, 2011, conducted by a representative 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 made an improper hazardous waste determination on the waste solvent/paint mixture generated in the paint booth operations. Respondent characterized the waste as D001/D035 hazardous waste however based on the usage of the solvents, to clean spray paint guns, this waste is an F-listed hazardous waste.

b. Pursuant to 40 CFR 262.34(f), if 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 seven (7) fifty-five (55) gallon containers of paint waste related materials for greater than 180 days. The last shipment of hazardous waste was July 9, 2010. Respondent indicated that the painting operations have continued since the last shipment. Respondent also stated that they may generate one (1) fifty-five (55) gallon container of paint waste related material within a month. Subsequent to the inspection, Respondent manifested six (6) fifty-five (55) gallon drums of Waste Paint (D001/D035) to a permitted hazardous waste facility on August 9, 2011.

Subsequent to the issuance of the Notice of Violation, Respondent submitted a response dated February 29, 2012, addressing the measures taken to minimize the possibility of a recurrence of hazardous waste being accumulated onsite greater than the timeframes allowed. Respondent trained approximately ten (10) employees in hazardous waste requirements. The training addressed proper handling, tracking, labeling and shipping of hazardous waste. Respondent also implemented a “Barrel Tracking Log” and “Weekly Inspection Checklist-Hazardous Waste Central Storage Area”.

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 in Finding (b) above, Respondent stored hazardous waste identified or listed in 40 CFR Part 261 without a permit.

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, must 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. Subsequent to the inspection Respondent manifested the stored hazardous waste to a permitted treatment, storage, disposal facility on August 9, 2011.

f. 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 and record review, Respondent accumulated hazardous waste on-site, without a permit, and did not mark hazardous waste containers with accumulation start dates. Specifically, Respondent had seven (7) fifty-five (55) gallon containers of hazardous waste paint related material in the accumulation area that were not marked with the start of accumulation date. The last shipment of hazardous waste was in July of 2010. Subsequent, to the inspection this hazardous waste was manifested off site on August 9, 2011 to a permitted hazardous waste facility.

Subsequent to the issuance of the Notice of Violation, Respondent submitted a response dated February 29, 2012 with a photo of the hazardous waste container central storage area illustrating the current management of hazardous waste while accumulating prior to shipment. The accumulation dates will need to be field verified.

g. 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 did not label or clearly mark hazardous waste containers with the words "Hazardous Waste." Specifically, Respondent had seven (7) fifty-five (55) gallon containers of hazardous waste paint related material in the accumulation area that were not labeled or clearly marked with the words “Hazardous Waste.” Subsequent, to the inspection this hazardous waste was manifested off site on August 9, 2011 to a permitted hazardous waste facility.

Subsequent to the issuance of the Notice of Violation, Respondent submitted a response dated February 29, 2012 with a photo of the hazardous waste containers in the central storage area. The containers were clearly labeled “Hazardous Waste”.

h. Pursuant to 40 CFR 262.34(a)(1)(i) 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. Specifically, Respondent had one (1) fifty-five (55) gallon container of waste paint related material located in the container accumulation area that was rusty and bulging at the top with evidence of waste spillage on the outside. Respondent attempted to prevent further spillage by wrapping the container with duct tape.

i. 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 above in Finding (h), Respondent failed to properly manage one (1) fifty-five (55) gallon container of waste paint related material to minimize a release to the environment.

j. 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 did not equip its facility with the required emergency equipment. Specifically, Respondent did not have spill control and decontamination equipment available in the less than 180 day accumulation area.

Subsequent to the issuance of the Notice of Violation, Respondent submitted a photo of the spill kit and empty drums located in the central storage area to be used to responds in case of a spill or a release of hazardous waste. The contents of the spill kit will be field verified.

k. Pursuant to 40 CFR 262.34(c)(1), a generator may accumulate as much as 55 gallons of hazardous waste or one quart of acutely hazardous waste in containers at or near any point of generation (in a satellite container), and under the control of the operator of the process generating the waste.

As noted during the inspection, Respondent accumulated hazardous waste in a satellite accumulation container that was not under the control of the operator of the process generating the waste. Specifically, Respondent had one (1) fifty-five (55) gallon satellite container of hazardous waste paint related material located in the <180 day accumulation area however this hazardous waste stream was being generated from paint booth operations located in a different building.

Subsequent to the issuance of the Notice of Violation, Respondent submitted a photo of the satellite accumulation container. The location of the satellite accumulation area will be field verified.

l. 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 and described in Finding (k) above, Respondent accumulated hazardous waste in a container that was not near the point of generation and did not properly mark the satellite accumulation container with either the words “Hazardous Waste” or with other words describing the contents.

Subsequent to the issuance of the Notice of Violation, Respondent submitted a response dated February 29, 2012 with a photo of the satellite accumulation container. The satellite container is properly labeled with the words “Hazardous Waste”.

m. Pursuant to 40 CFR 262.34(d)(2) and 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.

As noted during the inspection, Respondent did not store four (4) fifty-five (55) gallon containers of hazardous waste paint related material closed. One (1) of these containers was a satellite accumulation container. This was corrected during the inspection.

Subsequent to the issuance of the Notice of Violation, Respondent submitted a response dated February 29, 2012 with a photo of the satellite accumulation container. The satellite accumulation container is equipped with a drum funnel with a lid that can be closed when not adding or removing waste.

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

3. Upon the Effective Date of this Agreed Order, Respondent shall ensure the steps taken at the Site to minimize the possibility of a recurrence of hazardous waste being accumulated at the Site for greater than the timeframes allowed in 40 CFR 262.34, i.e., 90 days for a large quantity generator and 180 days for a small quantity generator are being followed. Specifically, Respondent shall document the status of the hazardous waste containers on the “Barrel Tracking Log” to ensure the hazardous waste is being properly transported to a permitted facility within the allowed timeframes.

4. Upon the Effective Date of this Agreed Order, Respondent shall comply with all applicable requirements of 40 CFR 262 for generators, as well as the applicable requirements of 40 CFR Parts 263 through 266, 268 and 270.

5. Within thirty (30) days of the Effective Date, Respondent shall conduct a proper waste determination on the waste solvent/paint mixture generated in the paint booth operations.

6. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(2). Specifically, Respondent shall clearly mark the date when the accumulation begins on each container accumulating hazardous waste.

7. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(3). Specifically, Respondent while being accumulated on-site, mark each container holding hazardous waste with the words “Hazardous Waste.”

8. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(d)(2) referencing 40 CFR 265.171. Specifically, Respondent shall ensure a container that is holding hazardous waste is in good condition and not leaking. If the container is not in good condition or is leaking, Respondent must immediately transfer the hazardous waste from this container to a container that is in good condition.

9. Upon the Effective Date of this Agreed Order, Respondent shall submit the “Weekly Inspection Checklist-Hazardous Waste Central Storage Area” documentation to IDEM on a monthly basis for a six (6) month period from the Effective Date.

10. Upon the Effective Date of this Agreed Order, Respondent shall ensure the facility’s hazardous waste container storage area is equipped with the required emergency equipment.

11. Within thirty (30) days of the Effective Date, Respondent shall submit documentation to IDEM the procedure for accumulating the hazardous waste paint related material generated in the paint booth operations. If Respondent chooses to manage this waste according to the satellite requirements, 40 CFR 262.34(c)(1), it must be accumulated under the control of the operator of the process generating the waste.

12. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 262.34(c)(1)(ii). Specifically, Respondent shall ensure satellite accumulation containers are either marked with the words “Hazardous Waste” or with other words describing the contents.

13. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 262.34(d)(2) and 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a). Specifically, Respondent shall ensure containers holding hazardous waste are stored closed during storage except when it is necessary to add or remove waste.

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

Christina Halloran, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

15. Respondent is assessed and agrees to pay a civil penalty of Nineteen Thousand Eight Hundred Ten Dollars ($19,810). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of Effective Date; the 30^th day being the “Due Date”.

16. 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
5	$500 per week
11	$500 per week

17. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th 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.

18. 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

19. 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 18, above.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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	_______________,	20__.

				For the Commissioner:

				Signed 05/16/2012 by__
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality