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. 2011-20442-H
					)
koontz-wagner custom controls					)
HOLDINGS, LLC,					)
					)
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 Koontz-Wagner Custom Controls Holdings, LLC (“Respondent”), which owns/operates a manufacturing facility with United States Environmental Protection Agency (“EPA”) ID No. INR000106138, located at 4755 Ameritech Drive, in South Bend, St. Joseph 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:

National Registered Agents, Inc., Registered Agent for

Koontz-Wagner Custom Controls Holding, LLC

320 Meridian Street

Indianapolis, Indiana 46204

5. Respondent notified the EPA and IDEM of Conditionally Exempt Small Quantity Generator (“CESQG”) activities on March 7, 2002.

6. Respondent manufactures packaged control rooms for integrated electrical systems.

7. 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.

8. During an investigation on August 31, 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 for greater than 180 days without complying with 40 CFR Part 264 and 40 CFR Part 270. Specifically, Respondent stored twenty-nine (29) 55-gallon containers of waste paint related material along the west side of the main building, southwest corner, for greater than 180 days.

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 262.34(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 twenty-two (22) hazardous waste containers with accumulation start dates.

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. Respondent accumulated hazardous waste in two (2) 55-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.

g. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, a generator must maintain aisle space to allow the unobstructed movement of personnel, fire protection, equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency. Respondent failed to provide the required aisle space at the outside container storage area located on the west side of the main building at the Site.

9. Respondent properly transported and disposed of the thirty (30) 55-gallon containers of waste paint related material on September 2, 2011.

10. 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 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 area described in Finding of Facts Paragraph 8.c. 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. 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(c)(1)(ii). Specifically, Respondent shall ensure that each hazardous waste container is labeled or marked clearly with the words "Hazardous Waste."

9. Respondent shall ensure compliance with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that the date when the accumulation begins is clearly marked and visible for inspection on each hazardous waste container.

10. Respondent shall ensure compliance with 40 CFR 262.34(a)(4) referencing 40 CFR 265.35. Specifically, Respondent shall maintain aisle space to allow the unobstructed movement of personnel, fire protection, equipment, spill control equipment, and decontamination equipment at the Site.

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 Ten Thousand Six Hundred Forty Dollars ($10,640). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th 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 submit Closure Plan.	$250 per week or part thereof
4 - Failure to implement Closure Plan.	$500 per week or part thereof
5 - Failure to submit a revised plan, if required,
within the given time period	$250 per week or part thereof

14. 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.

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:
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 4/13/2012
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality