STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case Nos. 2012-20888-H
					)
HONEYWELL INTERNATIONAL, INC.,					)
					)
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 Honeywell International, Inc., which owns and/or operates a facility with U.S. EPA I.D. number IND 088736103, which is located at 3520 Westmoor Street in South Bend, St. Joseph County, Indiana (the “Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

3. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (”NOV”) via Certified Mail to:

Roger Fradin, President	Corporation Service Company
Honeywell International, Inc.	Registered Agent for
1600 Utica Avenue, Suite 300	Honeywell International, Inc.
St. Louis Park, MN 55416	251 East Ohio Street, Suite 500
	Indianapolis, IN 46204

5. Respondent manufactures carbon and steel brakes for the military and commercial aircraft industry, and also conducts various Research and Development activities on aircraft fueling systems and hydraulic systems for aircraft brakes. Additionally, Respondent has a chrome anodizing line in which wheel housings are plated with a chrome surface.

6. As part of its operations, Respondent uses Isopropanol (“IPA”) to test its hydraulic line brake systems for integrity. IPA is placed into these lines and they are then pressurized to see if there are any leaks or defects. Prior to the IDEM inspection, the IPA could only be used once per the customer’s requirements. After these lines were drained, the used IPA was containerized and managed as hazardous waste while on Respondent’s property. Respondent had determined that this used IPA could be reused as part of its Re-Use program and that it was therefore excluded from regulation as a solid and hazardous waste. Respondent sold the used IPA to INSERV, Inc. which ultimately sold the material to Gladieux Trading and Marketing to be blended as a fuel for energy recovery.

7. Respondent last notified of Large Quantity Generator hazardous waste activities on May 14, 2008.

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 on May 14 and 15, 2012, 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 once through IPA was not a waste, or that it was exempt from regulation. The reuse of the once through IPA in the manner described in Finding No. 6 above does not meet the intent set forth in the rules including, but not limited to, 40 CFR 261.1(c)(5) and 40 CFR 261.2(e), and through IDEM and EPA guidance and the Federal Register (50 Fed. Reg. 614, 624 (Jan. 4, 1985)). The once through IPA is blended as a fuel for energy recovery and thereby cannot be considered a substitute for a commercial product. Furthermore, the material is not reused for its original purpose and thereby cannot be considered a material for “continued use.”

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 once through IPA generated from testing hydraulic lines for aircraft braking systems, which was a solid waste generated by Respondent. Respondent had determined that the material could be reused and that it was not a solid or hazardous waste, but the material was actually a hazardous waste.

Additionally, Respondent did not make a waste determination on the contents of four (4) drums located in Plant #11. Two (2) of the drums were located just west of the Wheelerbrater Unit and the other two (2) drums were located just south of the Wheelerbrater Unit.

Furthermore, Respondent did not make waste determination on the contents of approximately ten to fifteen (10-15) one-gallon containers of miscellaneous chemicals located in a storage cabinet in Plant #11/North Room.

Since the date of the inspection, Respondent has made a proper waste determination for the once through IPA by determining that it is a hazardous waste. Respondent has also provided IDEM with documentation demonstrating that the four (4) drums as noted above have been determined to be non-hazardous wastes. Additionally, Respondent has made waste determinations on the miscellaneous chemicals, some which were determined to be hazardous wastes and some were determined to be non-hazardous wastes. These materials were shipped off-site on June 21, 2012 using manifest number 009357140 JJK.

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 inspection, Respondent allowed the transportation of hazardous waste, incorrectly identified for reuse, without a manifest.

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.

e. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.173(a), a container holding hazardous waste must always be kept closed during storage, except when it is necessary to add or remove waste.

As noted during the inspection, Respondent stored one (1) 2-cubic yard steel container of hazardous waste, located in Plant #11, open.

Since the date of the inspection, Respondent provided IDEM with information indicating that the container has been covered and moved to the 90-day storage area.

f. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and above ground tanks with the words “Used Oil.”

As noted during the inspection, Respondent did not label one (1) 5-gallon container of Used Oil located behind CVD Unit #5 and one (1) 5-gallon container of Used Oil located behind Unit #7 with the words “Used Oil.”

Respondent corrected this violation at the time of the inspection.

g. Pursuant to 40 CFR 268.7(a), a generator must determine if a hazardous waste is restricted from land disposal and if the waste has to be treated before being land disposed. With the initial shipment of waste to each treatment, storage, or disposal facility, a generator must send a one-time written notice to each facility receiving the waste and place a copy in the file.

As noted during the inspection, Respondent disposed of rags and debris, generated at the Assembly and Touch Up Area, using a Land Ban Notification that did not list all appropriate waste codes. Additionally, Respondent did not provide a one-time notice to the facility receiving the once through IPA.

Since the date of the inspection, Respondent provided IDEM with information indicating that a new profile has been provided for the rags and debris, and that the F003 and F005 codes have been added to the profile.

10. The parties met on September 14, 2012 to discuss this matter. At that time, Respondent indicated that it had discontinued reuse of the used IPA in the manner indicated above, that being to be blended as a fuel for energy recovery. Respondent also indicated that since the date of the IDEM inspection, its client determined that the used IPA can be used more than one time to test its hydraulic line brake systems for integrity. Reuse of the used IPA for testing hydraulic line meets the intent of the rules for continued use. If at some point, the used IPA can no longer be used for its original purpose, Respondent will make a hazardous waste determination on the material.

Respondent also indicated that the used IPA was not being managed as a hazardous waste at the time of the IDEM inspection but as a hazardous secondary material. Respondent also indicated that after the IDEM inspection, it had made the determination that the used IPA was a hazardous waste, but since has determined that it can be reused for testing its hydraulic line brake systems for integrity.

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 continue cessation of use of the used IPA for blending as a fuel for energy recovery. Respondent must be able to document that any reuse and/or “continued use,” of the used IPA meets the intent set forth in the rules including, but not limited to, 40 CFR 261.1(c)(5) and 40 CFR 261.2(e), and through EPA and IDEM guidance and the Federal Register (50 Fed. Reg. 614, 624 (Jan. 4, 1985)).

4. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.11. Specifically, Respondent shall ensure that a proper waste determination is provided for each solid waste 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 265.173(a). Specifically, Respondent shall ensure that containers holding hazardous waste are kept closed during storage, except when it is necessary to add or remove waste.

7. Upon the Effective Date, Respondent shall ensure compliance with 329 IAC 13-4-3(d). Specifically, Respondent shall ensure that all used oil containers and above ground tanks are labeled with the words “Used Oil.”

8. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 268.7(a). Specifically, Respondent shall ensure that all proper waste codes are provided on land ban notifications. Respondent shall also ensure that with the initial shipment of waste to each treatment, storage, or disposal facility, a one-time written notice is sent to each facility receiving the waste and a copy placed in the file.

9. 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

10. Respondent is assessed and agrees to pay a civil penalty of Twenty Six Thousand Two Hundred Dollars ($26,200). Within thirty (30) days of the Effective Date, Respondent shall pay a portion of this penalty in the amount of Five Thousand Two Hundred and Forty Dollars ($5,240) to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondent shall make a cash payment to the Indiana Finance Authority (“IFA”) to fund a Supplemental Environmental Project (“SEP”) of activities related to brownfield development at a brownfield site (“Brownfield Site”) in South Bend, Indiana. Respondent will make a payment in the amount of Twenty Thousand Nine Hundred and Sixty Dollars ($20,960) to fund SEP activities at the Brownfield Site. Respondent shall make such payment to the IFA within thirty (30) days of the Effective Date. Payment to the IFA satisfies Respondent’s obligation to undertake a SEP to offset a portion of the civil penalty assessed in this matter. Implementation of this SEP will benefit the community by rejuvenating neighborhoods, increasing the tax base, mitigating threats to human health and the environment, and/or reducing blight.

The Brownfield Site at which some or all of the SEP proceeds will be spent is the Accucast site located at 220 West Eckman Street in South Bend, Indiana. The designation of this Brownfield Site to receive the SEP proceeds is agreed upon by the Complainant, Respondent, and IFA and is contingent on the City of South Bend being able to gain access to the Brownfield Site. If access is unable to be obtained, another site in South Bend agreed upon by the Complainant, Respondent, and IFA will be chosen for use of the SEP proceeds. The IFA will account for the SEP payment and the Brownfields Program will oversee the work undertaken at the Brownfield Site funded by the SEP proceeds. If SEP proceeds remain following a determination by the Brownfields program that no additional SEP proceeds are needed at the Brownfield Site, the Brownfields Program will select another site or sites in South Bend at which work will be funded with the balance of the SEP proceeds. The IFA will notify IDEM’s Enforcement Case Manager when SEP-funded activities at the Brownfield Site (and any other site at which activities may be funded with SEP proceeds) are complete.

In the event that Respondent does not make its SEP payment within thirty (30) days of the Effective Date, the full amount of the civil penalty as stated in this paragraph, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent’s receipt of IDEM’s notice to pay. Interest at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

Payment of the SEP is payable by check to the “Indiana Finance Authority.” The text “SEP-South Bend” and the Case Number of this action shall be included in the memo line of the check. The check shall be mailed to:

Andrea Robertson

Indiana Brownfields Program – SEP

100 N. Senate Avenue, Room 1275

Indianapolis, Indiana 46204

11. 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

12. 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.

13. 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

14. 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 13, above.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 INDIANA FINANCE AUTHORITY				COUNSEL FOR RESPONDENT:
For the Indiana Brownfields Program
By: ________________________________				By: _______________________
Assistant Director & General Counsel
Date: _______________________________				Date: _____________________
COUNSEL AND/OR AUTHORIZED
REPRESENTATIVE:
For the City of South Bend:
By:_________________________________
Date:_______________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		____________	DAY OF	______________,	20__.
				Signed on December 11, 2012
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality