STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

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 Nos. 2011-20522-H & 2012-20622-H

 

 

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OFS BRANDS, 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 OFS Brands, Inc., which owns and/or operates facilities with U.S. EPA I.D. number IND 086756186, which is located at 4611 S. CR 400 W. in Huntingburg, Dubois County, Indiana (“Site 1”), and with U.S. EPA I.D. number IND 980617468, which is located at 602 West 12th Street in Huntingburg, Dubois County, Indiana (“Site 2”).  The facilities are known as Plant #1 and Plant #9 respectively.

 

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:

 

Robert H. Menke, Jr., President

James Huebner, Registered Agent

OFS Brands, Inc.

OFS Brands, Inc.

P.O. Box 100

1204 E. Sixth Street

Huntingburg, IN  47542

Huntingburg, IN  47542

 

5.         Respondent manufactures furniture.

 

6.         In or around 2006, Respondent determined that its waste paint materials generated from line flushing and gun cleaning using methyl ethyl ketone (“MEK”) and acetone at coating booths for stains, paints, and sealers 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 inspections, Respondent could not demonstrate that these waste paint 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 waste paint materials had been determined to be and managed as hazardous waste (F003, F005, D001).

 

7.         Although Respondent last notified of Small Quantity Generator hazardous waste activities at Site 1 on June 24, 2010, the amount of hazardous waste generated, including wastes designated as “continued use solvent” but for which documentation proving such was unable to be provided, subjected the Site 1 facility to the Large Quantity Generator standards.  Although IDEM believes the Site 2 facility would remain a Small Quantity Generator of hazardous waste (as last notified on June 5, 2009) with inclusion of “continued use solvent” in the generation rate, Respondent must determine its proper generator status based on inclusion in its generation rate of the “continued use” solvent for which documentation proving such was unable to be provided.

 

8.         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.

 

9.         During an investigation including an inspection at Plant 1 on August 25, 2011 and an inspection at Plant 9 on November 21, 2011, conducted by representatives 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 inspections at Site 1 and Site 2, Respondent was not able to demonstrate by providing appropriate documentation that its waste paint related materials generated from line flushing and gun cleaning using methyl ethyl ketone (“MEK”) and acetone at coating booths for stains, paints, and sealers and designated as “continued use solvent” 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 inspections at Site 1 and Site 2, Respondent did not make a proper hazardous waste determination on the waste paint related materials generated from coating 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).

 

c.         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 inspections at Site 1 and Site 2, Respondent allowed the transportation of hazardous waste, incorrectly identified as “continued use solvent” without a manifest from both Sites to United Solutions in Franklin, Ohio on multiple occasions.  This is 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 inspections at Site 1 and Site 2, Respondent caused or allowed the transportation of a hazardous waste without a manifest as required by law.

 

e.         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 at Site 1, Respondent accumulated hazardous waste on-site in the storage shed, without a permit, and did not mark approximately twelve (12) containers used to contain solvent incorrectly identified as “continued use solvent” and one (1) container  used to contain sludge from the used solvents collected from the various coating booths with accumulation start dates.

 

f.          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 at Site 1, Respondent accumulated hazardous waste on-site in the storage shed, without a permit, and did not label or clearly mark approximately twelve (12) containers used to contain solvent incorrectly identified as “continued use solvent” and one (1) container used to contain sludge from the used solvents collected from the various coating booths, with the words "Hazardous Waste."

 

g.         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 at Site 1, Respondent did not mark three (3) plastic bags containing D007 hazardous waste located at the NGR booth near the finish area with the words “Hazardous Waste” or with other words identifying their contents.

 

Respondent moved these three bags to the container storage area in the storage shed and properly marked them during the inspection.

 

h.         Pursuant to 40 CFR 262.23(a)(3) and 40 CFR 262.40(a),  the generator must retain copies of hazardous waste manifests for a period of three (3) years from the date of receipt of the hazardous waste by the designated facility.

 

As noted during the inspection at Site 2, Respondent did not have annual manifest reports and/or manifests available for review.

 

Respondent provided the 2010 and 2009 annual manifest reports, as well as the 2010 manifests, to IDEM in an email dated December 6, 2011.

 

i.          Pursuant to 40 CFR 262.40(c), a generator must keep copies of test results, waste analyses, and other determinations for at least three years from the date that the waste was sent off-site for treatment, storage, or disposal.

 

As noted during the inspection at Site 2, Respondent did not have the analytical data for the waste chromium filters available for review.

 

j           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 at Site 2, Respondent accumulated hazardous waste on-site, without a permit, and failed to clearly mark hazardous waste containers including, but not limited to, one 55-gallon container used to contain hazardous waste processed through the 5-gallon distillation unit and one 55-gallon container  incorrectly identified as “continued use solvent” with accumulation start dates.

 

k.         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 at Site 2, Respondent accumulated hazardous waste on-site, without a permit, and failed to mark hazardous waste containers including, but not limited to, one 55-gallon container used to contain hazardous waste processed through the 5-gallon distillation unit and one 55-gallon container incorrectly identified as “continued use solvent” with the words "Hazardous Waste."

 

10.       The parties met on April 5, 2012 to discuss this matter.  At that time, Respondent indicated that all materials that had been incorrectly identified as “continued use solvent” have been determined to be hazardous waste(s).  Based on these determinations, Respondent indicated that Site 1 is currently a Large Quantity Generator of hazardous waste.  Site 2 remains a Small Quantity Generator of hazardous waste.

 

Additionally, Respondent sent a response to the Notice of Violation via email on May 23, 2012, indicating the steps taken at the Site to demonstrate compliance.  Respondent indicated that the change in status to Large Quantity Generator for Site 1 was reported to IDEM on an ID form on February 27, 2012.  Respondent also provided information indicating that a Hazardous Waste Training Program has been implemented for Site 1, including training on the proper handling and storage of all universal and hazardous wastes.  Respondent also indicated that a Contingency Plan has also been developed and implemented.

 

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 IDEM and EPA guidance and the Federal Register (50 Fed. Reg. 614, 624 (Jan. 4, 1985)).  Respondent shall also 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 compliance with 40 CFR 262.11.  Specifically, Respondent shall ensure that a proper waste determination is made for all solid wastes generated at the Site.

 

5.         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.

 

6.         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.

 

7.         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.”

 

8.         Upon the Effective Date, Respondent shall ensure compliance with all applicable requirements of 40 CFR 262 for generators of the determined status for each facility.

 

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

10.       Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.23(a)(3) and 40 CFR 262.40(a).  Specifically, Respondent shall ensure it retains copies of hazardous waste manifests for a period of three (3) years from the date of receipt of the hazardous waste by the designated facility.

 

11.       Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.40(c).  Specifically, Respondent shall ensure that it keeps copies of test results, waste analyses, and other determinations for at least three years from the date that the waste was sent off-site for treatment, storage, or disposal.

 

12.       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

 

13.       Respondent is assessed and agrees to pay a civil penalty of Twenty Five Thousand Six Hundred and Eighty Eight Dollars ($25,688).  Said penalty amount shall be due and payable to the Environmental Management Special Fund in four (4) installments of $6,422 each, with the first installment due within thirty (30) days of the Effective Date; the second installment due on or before October 31, 2012; the third installment due on or before January 31, 2013; and the final installment due on or before April 30, 2013.

 

14.       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. 3

$500 per week

 

15.       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.

 

16.       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

 

17.       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 16, above.

 

18.       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.

 

19.       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.

 

20.       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.

 

21.       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.

 

22.       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.

 

23.       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.

 

24.       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.

 

25.       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 RESPONDENT:

 

 

 

 

 

By: ________________________

 

 

 

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_________

DAY OF

________________________,

20__.

 

 

For the Commissioner:

 

 

 

Signed on July 31, 2012

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality