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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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v. |
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Case No. 2012-21015-S |
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david thompson
d/b/a two little bees, |
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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 David Thompson d/b/a Two Little Bees (“Respondent”), which owns/operates the
auto salvage Site, located at 505 South Tibbs in
Marion 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:
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David Thompson d/b/a Two Little
Bees |
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Two Little Bees |
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505 South Tibbs |
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Indianapolis, IN 46241 |
5.
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.
6.
During
an investigation including an inspection on November 30, 2011, March 13, 2012
and June 27, 2012, conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to IC 13-30-2-1(4), a person
may not deposit or cause or allow the deposit of any contaminants or solid
waste upon the land, except through the use of sanitary landfills,
incineration, composting, garbage grinding, or another method acceptable to the
solid waste management board.
As noted during the
November 30, 2011 inspection, Respondent caused, or allowed releases of fluids
near and around the crusher located west of the office and within the vehicle
storage yard. The releases near the
crusher were located on a concrete pad; however, there was not a lip or curb on
the concrete pad and since it is exposed to the elements, during a rain event
the fluids would run off and onto the earthen ground surrounding the concrete
pad.
b. Pursuant to 329 IAC 13-4-3(e)(5), upon
detection of a release of used oil to the environment not subject to the
requirements of 40 CFR 280 Subpart F, which has occurred after the effective
date of this rule, a generator must perform the following clean-up steps: stop the release; contain the released used
oil; clean up and manage properly the released used oil and other materials; if
necessary to prevent future releases, repair or replace any leaking used oil
storage containers or tanks prior to returning them to service.
As noted during the
March 13, 2012, and June 27, 2012 inspection, releases near the crusher, used
oil storage area, transmission and engine storage area, and entrance of the yard
where the facility loads and unloads vehicles were documented.
c.
Pursuant
to 329 IAC 13-4-3(d)(1), containers and aboveground
tanks used to store used oil at generator facilities must be labeled or marked
clearly with the words “Used Oil.”
As noted during the November
30, 2011, March 13, 2012, and June 27, 2012, inspections, the used oil
containers were not labeled.
d.
Pursuant
to 40 CFR 273.14(d)(1), universal waste mercury-containing equipment, or a
container in which the equipment is contained, must be labeled or marked
clearly with any of the following phrases: “Universal Waste-Mercury Containing
Equipment”, “Waste Mercury-Containing Equipment”, or “Used Mercury-Containing
Equipment”.
As noted during the
March 13, 2012, and June 27, 2012, inspections, the facility was storing the
mercury switches in a closed container, however, the
container was not properly labeled. A
Universal Waste sticker was provided to the owner of the facility during the
inspection.
e.
Pursuant
to IC 13-20-17.7-5(d), a motor vehicle recycler or any other person that
removes mercury switches in accordance with this section shall maintain records
that document the number of: (1) end of life vehicles the person processed for
recycling; (2) end of life vehicles the person processed that contained mercury
switches; and (3) mercury switches the person collected. A person that maintains records under this
section shall retain the records for at least three (3) years.
As noted during the
November 30, 2011, March 13, 2012, and June 27, 2012, inspections, the facility
did not have any mercury switch removal records.
f.
Pursuant
to 40 CFR 273.13(c), a small quantity handler of universal waste must manage
universal waste mercury-containing equipment in a way that prevents releases of
any universal waste or component of a universal waste to the environment.
As noted during the
November 30, 2011 and March 13, 2012, inspections, the facility did not have a
spill kit to address mercury spills.
g.
Pursuant
to 40 CFR 273.16, a small quantity handler of universal waste must inform all
employees who handle or have responsibility for managing universal waste. The information must describe proper handling
and emergency procedures appropriate to the type(s) of universal waste handled
at the facility.
As noted during the
November 30, 2011 and March 13, 2012, inspections, the facility had not
conducted any mercury switch removal training.
7. 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 IC 13-30-2-1(1), 329 IAC 13-4-3(3)(5),
329 IAC 13-4-3(d)(1), IC 13-20-17.7-5(b), IC 13-20-17.75(d), 40 CFR 273.13(c)
and 40 CFR 273.16.
3.
Within
thirty (30) days of the Effective Date, Respondent shall take immediate steps
to capture any potential release of fluids to the environment, and immediately
cease allowing the release of contaminants into the environment.
4.
Within
thirty (30) days of the Effective Date, Respondent shall label all containers
of used oil with the words “Used Oil”.
5.
Within
thirty (30) days of the Effective Date, Respondent shall label all universal
waste mercury-containing equipment with the words “Universal Waste-Mercury
Containing Equipment”, Waste Mercury-Containing Equipment”, or “Used
Mercury-Containing Equipment”.
6.
Within
thirty (30) days of the Effective Date, Respondent shall provide mercury switch
removal records to IDEM.
7.
Within
thirty (30) days of the Effective Date, Respondent shall provide a spill kit to
address mercury spills.
8.
Within
thirty (30) days of the Effective Date, Respondent shall conduct mercury switch
removal training to all employees.
9.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Sherri Bass, 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 |
10.
Respondent
is assessed and agrees to pay a civil penalty of Seven Thousand Four Hundred
Dollars ($7,400). Said penalty amount
shall be due and payable in monthly payments to the Environmental Management
Special Fund in the following manner:
eleven payments of Six Hundred Sixteen Dollars and Sixty Six Cents
($616.66) and one monthly payment of Six Hundred Sixteen Dollars and Seventy
Four Cents ($616.74). The first payment
shall be paid within thirty (30) days of the Effective Date; the 30th
day being the “Due Date”.
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:
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Order Paragraph # |
Penalty |
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Order Paragraph #3 |
$100 per week late |
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Order Paragraph #4 |
$100 per week late |
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Order Paragraph #5 |
$100 per week late |
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Order Paragraph #6 |
$100 per week late |
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Order Paragraph #7 |
$100 per week late |
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Order Paragraph #8 |
$100 per week late |
12.
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.
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:
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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 |
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: |
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Department of
Environmental Management |
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By:
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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 RESPONDENT: |
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By:
________________________ |
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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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For
the Commissioner: |
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Signed
November 27, 2013 |
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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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