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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. 2011-20478-H |
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JASPER SEATING COMPANY, 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
owns and/or operates a facility with U.S. EPA I.D. number INR 000110213, which
is located at 1352 West Hospital Road in Paoli, Orange County, Indiana (the
“Site”). This facility is known as Plant
#4.
3. Respondent manufactures and upholsters
case goods such as office and hotel furniture.
4. In May 2010, Respondent determined that
its waste paint related materials generated from paint booth maintenance
activities could be used as “continued use” solvent, claiming the materials
could be excluded from regulation as solid and hazardous waste if they were
reused for the purpose of cleaning.
Respondent determined that the materials could be sent to Buzzi Unicem
USA/Greencastle as part of that facility’s “continued use” program, which has
specifications that all materials it accepts must meet. However, at the time of the IDEM inspection,
Respondent could not demonstrate that these paint related materials were exempt
from regulation and that they qualified and explicitly met the required
specifications set by Buzzi Unicem USA/Greencastle (“Buzzi”) for “continued
use.” Prior to the “continued use”
designation, the paint related materials had been determined to be and managed
as hazardous waste (F003, F005, D001, & D035).
5. Although Respondent last notified of
Small Quantity Generator hazardous waste activities on March 1, 2011, the
amount of hazardous waste on-site at the time of the inspection by IDEM,
including wastes designated as “candidate
continued use solvent materials” but for which documentation proving such
was unable to be provided, subjected the facility to the Large Quantity
Generator standards.
6. IDEM has jurisdiction over the parties
and the subject matter of this action.
7. Pursuant to IC 13-30-3-3, IDEM issued a
Notice of Violation ("NOV") via Certified Mail to:
Michael, Elliott, President Michael
Elliott, Registered Agent
Jasper Seating Company,
Inc. Jasper
Seating Company, Inc.
884
Giesler Rd. 225
Clay St.
Jasper, IN 47546 Jasper,
IN 47546
8. 329 Indiana Administrative Code (“IAC”)
3.1 incorporates certain federal hazardous waste management requirements found
in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273,
including those identified below.
9 During an investigation including an
inspection on August 25, 2011, conducted by a representative of IDEM, the
following violations were found:
a.
Pursuant
to 40 CFR 261.2(f), a person who claims that a material is not a solid waste
must demonstrate that there is a known market or disposition for the material,
and that the material meets the terms of the exclusion or exemption. In doing so, he must provide appropriate
documentation to demonstrate that the material is not a waste, or that it is
exempt from regulation.
As noted during the
inspection, Respondent was not able to demonstrate by providing appropriate
documentation that its waste paint related materials
generated from paint booth maintenance activities and designated as “candidate continued use solvent materials”
were not wastes, or that they were exempt from regulation.
b. 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 a proper hazardous waste determination on
the waste paint related materials generated from paint booth maintenance
activities, which were solid wastes generated by Respondent. Respondent had determined that the materials
were solvents suitable for “continued use,” but the materials were actually
hazardous waste (F003, F005, D001, & D035).
Approximately eleven
(11) drums of hazardous waste improperly designated for continued use had
already been removed from the Site. There
were twelve (12) 55-gallon drums of hazardous wastes, as well as approximately
ten (10) various sized containers including boxes holding spent aerosol
containers, located in the hazardous waste accumulation area, which were
improperly designated for continued use.
Additionally, eleven (11) 55-gallon containers, twelve (12) 5-gallon
containers, and approximately four (4) 1-gallon containers of unusable,
obsolete chemicals lacked hazardous waste determinations. These were also located in the hazardous waste
accumulation area.
b.
Pursuant
to 40 CFR 262.20, a generator who transports, or offers for transportation,
hazardous waste for off-site treatment, storage, or disposal, must prepare a
manifest. A generator must designate on
the manifest one facility which is permitted to handle the waste described on
the manifest. A generator may designate
an alternate facility to handle his waste in the event that an emergency
prevents delivery of the waste to the primary designated facility.
As noted during the
inspection, Respondent allowed the transportation of hazardous waste,
incorrectly identified as “candidate
continued use solvent materials” to a sister facility, Jasper Seating Plant
#2, located in French Lick without a manifest on two occasions, on or around
May 26, and November 4, 2010. This is
documented by handwritten notes on Straight Bills of Lading. Additionally, Respondent allowed the
transportation of this hazardous waste (after separating the solvent from solid
wastes at the bottom of drums) without a manifest from Plant #2 to United
Solutions in Franklin, Ohio on three occasions, May 26 and November 4, 2010 and
February 3, 2011. This is also
documented on Straight Bills of Lading.
d. Pursuant to IC 13-30-2-1(12), a person
may not cause or allow the transportation of a hazardous waste without a
manifest if a manifest is required by law.
As noted during the
inspection, Respondent caused or allowed the transportation of a hazardous
waste without a manifest as required by law.
d.
Pursuant
to 40 CFR 262.34(b), a generator who accumulates hazardous waste for more than
90 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 90 day period.
As noted during the
inspection, Respondent stored hazardous waste, including but not limited to
twelve (12) 55-gallon drums and approximately ten (10) various sized containers
including boxes containing spent aerosol containers, incorrectly identified as
“candidate continued use solvent
materials,” and one (1) 55-gallon
drum of spent chromium contaminated paint booth filters, on-site at the
hazardous waste accumulation area for greater than 90 days without complying
with 40 CFR Part 264 and 40 CFR Part 270.
As of the inspection date, Respondent’s records indicate that the last
drums of the waste paint related materials, incorrectly determined to be
“continued use” solvent but actually hazardous waste, left the Site on or
around November 4, 2010. This is
documented by a handwritten note on a Straight Bill of Lading.
f. 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 for greater than 90 days without
a permit.
g. 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.
h. 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.
i. Pursuant to 40 CFR 262.34(a)(2), a
generator may accumulate hazardous waste on-site for 90 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 did not mark containers including but not limited to twelve (12) 55-gallon
drums and approximately ten (10) various sized boxes containing spent aerosol
containers, all incorrectly identified as “candidate
continued use solvent materials,” as well as one (1) 55-gallon drum of
spent chromium contaminated paint booth filters, with accumulation start dates.
j. 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 containers, including but not limited to
twelve (12) 55-gallon drums and approximately ten various sized boxes
containing spent aerosol containers, incorrectly identified as “candidate continued use solvent materials,”
as well as one (1) 55-gallon drum of spent chromium contaminated paint booth
filters, with the words "Hazardous Waste."
k. 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 stored hazardous waste in containers that were not in
good condition. The containers were
located in the hazardous waste accumulation area. Two (2) 55-gallon drums holding hazardous
waste, incorrectly identified as “candidate
continued use solvent materials,” were deteriorated and corroded and one
(1) 55-gallon drum of obsolete material had a bulging bottom. The hazardous waste had not been transferred
to containers in good condition.
l. 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.
As noted during the
inspection, Respondent failed to provide the required aisle space between rows
of hazardous waste incorrectly identified as “candidate continued use solvent materials,” located in the
hazardous waste accumulation area.
10. The parties met on February 20, 2012 to
discuss this matter. At that time,
Respondent notified IDEM that it had ceased its “continued use” program and
that materials which had been identified as “candidate continued use solvent materials” have now been determined
to be hazardous wastes. Respondent
submitted information to IDEM on February 20 & 22, 2012, indicating that
its hazardous waste generation rate is currently that of a Small Quantity
Generator. Respondent has provided IDEM
with a proper waste determination for each solid waste generated at the Site,
including the paint related materials generated from paint booth maintenance
activities. Respondent has also
submitted documentation to IDEM demonstrating that all hazardous wastes stored
for greater than ninety (90) days at the Site have been properly transported
off-site for proper disposal.
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 the statutes and/or rules listed in the findings here and/or
above at issue.
3. Upon the Effective Date, Respondent
shall ensure that it does not resume its “continued use” program, unless it can
be documented that the materials designated for such explicitly meet the intent
set forth in the rules through EPA guidance and the Federal Register (50 Fed.
Reg. 614, 624 (Jan. 4, 1985)). Respondent
shall also be able to provide documentation that the materials meet all
specifications set forth by the receiving facility for reuse at that facility.
4. Upon the Effective Date, Respondent
shall ensure that a proper waste determination is made for all solid wastes
generated at the Site.
5. Within forty-five (45) days of the
Effective Date of this Agreed Order, Respondent shall decontaminate the area(s)
at the Site where the hazardous wastes were illegally stored including, but not
limited to, the hazardous waste accumulation area, as noted in Finding 9 e.
above, hereinafter referred to as “the pad”, as follows:
a. remove
all wastes from the pad and appropriately dispose;
b. mechanically clean the pad by scraping,
sweeping, or other method, to remove all physical contamination;
c. inspect the pad for cracks. If cracks are detected, perform Item j. at
this point;
d. wash the pad with a high pressure steam
cleaner with detergent or appropriate solvent to remove the previously stored
waste materials;
e. rinse
the pad three (3) times with water;
f. 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;
g. the decontamination procedure shall be
repeated until the cleanup levels are met;
h. ensure that care is taken to prevent
migration of cleaning liquids from the pad area;
i. collect and dispose of all residues
and rinsates as hazardous waste unless the residues and rinsates are analyzed
and determined to be non-hazardous;
j. 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;
k. 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;
l. upon notice of approval of the closure
plan by IDEM, implement the approved plan in accordance with the time frames
contained therein.
6. Within fifteen (15) days of completing
the decontamination required in Order 5, 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.
7. Upon the Effective Date, Respondent
shall ensure compliance with 40 CFR 262.20 and IC 13-30-2-1(12). Specifically, Respondent shall not allow the
transport of hazardous waste without a manifest.
8. Upon the Effective Date, as long as
Respondent remains a Small Quantity Generator of hazardous waste, Respondent
shall ensure that hazardous waste is not accumulated on-site for greater than 180
days without complying with the requirements of 40 CFR Part 264 and the permit
requirements of 40 CFR Part 270.
9. Upon the Effective Date, 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 container accumulating hazardous waste.
10. Upon the Effective Date, Respondent shall
ensure compliance with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that
each container accumulating hazardous waste is clearly marked with the words
“Hazardous Waste.”
11. Upon the Effective Date, Respondent shall
ensure compliance with 40 CFR 265.171.
Specifically, Respondent shall ensure that containers holding hazardous
waste are maintained in good condition and that if they begin to leak, the
contents are transferred to a container that is in good condition.
12. Upon the Effective Date, Respondent shall
ensure compliance with 40 CFR 265.35.
Specifically, Respondent shall ensure that aisle space is maintained 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.
13. 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 |
14. Respondent is assessed and agrees to pay
a civil penalty of Twenty Three Thousand Four Hundred and Thirty Eight Dollars
($23,438). Said penalty amount shall be
due and payable to the Environmental Management Special Fund within thirty (30)
days of the Effective Date; the 30th day being the “Due Date”.
15. 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 paragraph no. 5 |
$1,000 per
week |
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Failure to
comply with Order paragraph no. 6 |
$1,000 per
week |
16. 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.
17. 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 |
18. 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 17, above.
19. This Agreed Order shall apply to and be
binding upon Respondent and his 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 his status or responsibilities under this Agreed Order.
20. 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.
21. 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.
22. 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 his
obligation to comply with the requirements of his applicable permits or any
applicable Federal or State law or regulation.
23. 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.
24. 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.
25. 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.
26. 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: _________________________ |
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 COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental
Management |
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By: ________________________ |
By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
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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20__. |
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For
the Commissioner: |
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Signed
on April 17, 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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