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 No. 2013-21387-H

 

 

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TALBERT MANUFACTURING INCORPORATED,

 

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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 Talbert Manufacturing incorporated (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (EPA) ID No. IND 005 080 122, located at 1628 W State Road 114, in Rensselaer, Jasper 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:

 

Mr. Andrew Tanner, President

Ms. Roberta Kaufman, Registered Agent for

Talbert Manufacturing Incorporated

Talbert Manufacturing Incorporated

1628 W State Road 114

1628 W State Road 114

Rensselaer, IN 47978

Rensselaer, IN 47978

 

5.            Respondent last notified EPA of Large Quantity Generator (LQG) hazardous waste activities on June 17, 2010.

 

6.            Respondent manufactures trailers for heavy equipment hauling.  Processes include cutting, welding, assembly and finishing. Hazardous waste is generated primarily from the painting/priming operation.

 

7.            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.

 

8.            During an investigation including an inspection on December 12, 2013 conducted by a representative of IDEM, the following violations were found:

 

a.         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 on-site for greater than 90 days without complying with 40 CFR Part 264 and 40 CFR Part 270.  Specifically, Respondent stored two (2) fifty-five (55) gallon containers of hazardous waste (D001, D035) in the outdoor container storage area for greater than ninety (90) days.  The start of accumulation date for both containers was June 27, 2012.

 

Respondent manifested the above hazardous waste off site on January 11, 2013 to a permitted hazardous waste facility.  Manifest Tracking Number 010837218 JJK.

 

b.         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 identified or listed in 40 CFR Part 261 without a permit.  Specifically, Respondent stored two (2) fifty-five (55) gallon containers of hazardous waste (D001, D035) for greater than ninety (90) days in the outdoor container storage area. The start of accumulation date for both containers was June 27, 2012.

 

Respondent manifested the above hazardous waste off site on January 11, 2013 to a permitted hazardous waste facility.  Manifest Tracking Number 010837218 JJK.

 

c.         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.  Specifically, Respondent stored two (2) fifty-five (55) gallon containers of hazardous waste (D001, D035) for greater than ninety (90) days in the outdoor container storage area. The start of accumulation date for both containers was June 27, 2012.

 

Respondent manifested the above hazardous waste off site on January 11, 2013 to a permitted hazardous waste facility.  Manifest Tracking Number 010837218 JJK.

 

d.            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.  Specifically, Respondent stored two (2) fifty-five (55) gallon containers of hazardous waste (D001, D035) for greater than ninety (90) days in the outdoor container storage area. The start of accumulation date for both containers was June 27, 2012.

 

Respondent manifested the above hazardous waste off site on January 11, 2013 to a permitted hazardous waste facility.  Manifest Tracking Number 010837218 JJK.

 

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, Respondent accumulated hazardous waste on-site, without a permit, and did not mark hazardous waste containers with accumulation start dates.  Specifically, the following hazardous waste containers:

 

a)            Nine (9) fifty-five (55) gallon hazardous waste containers located in the outdoor container storage area.

b)            Two (2) fifty-five (55) gallon hazardous waste containers located in the Quonset Building.

c)            Four (4) fifty-five (55) gallon hazardous waste containers located outside the Paint Mix Building.

 

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, Respondent accumulated hazardous waste on-site, without a permit, and did not label or clearly mark hazardous waste containers with the words "Hazardous Waste."  Specifically, the following hazardous waste containers:

 

a)            Five (5) fifty-five (55) gallon hazardous waste containers located in the outdoor container storage area.

b)            Two (2) fifty-five (55) gallon hazardous waste containers located in the Quonset Building.

c)            Four (4) fifty-five (55) gallon hazardous waste containers located outside the Paint Mix Building.

 

g.            Pursuant to 40 CFR 262.34(c)(1)(ii), a generator may accumulate as much as fifty-five (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, Respondent accumulated hazardous waste in a container at or near the point of generation without a permit and did not properly mark the satellite accumulation container with either the words “Hazardous Waste” or with other words describing the contents.  Specifically, one (1) fifty-five (55) gallon satellite hazardous waste container in the small paint booth was not properly marked.

 

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

 

As noted during the inspection, Respondent did not store four (4) containers of hazardous waste closed.  Specifically, one (1) fifty-five (55) gallon less than 90 day hazardous waste container located in the outdoor container storage area; two (2) fifty-five (55) gallon satellite hazardous waste containers in the small paint booth; and one (1) fifty-five (55) gallon satellite hazardous waste container outside the paint mix building.

 

i.              Pursuant to IC 13-30-2-1(4), no person shall 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 inspection, Respondent deposited or caused and/or allowed the deposit of a contaminant and/or solid waste, including, but not limited to Valspar Valthane 430 Gray, industrial coating, in a method which has not been determined by the solid waste management board to be acceptable.  Specifically, an orange/brown liquid was observed on the ground in the outside product storage area. The four by two foot release was from a deteriorated five (5) gallon bucket of Valspar Valthane 430 Gray an industrial coating product.

 

9.            Respondent emailed a submittal on March 22, 2013.  The submittal included documentation that the hazardous waste stored for greater than 90 days has been properly disposed of at a permitted hazardous waste facility (Manifest Tracking Number 010837218 JJK).  Disposal information was also submitted for used oil and non regulated waste (sandblast dust).

 

10.         Respondent retrained all Painters, Material Coordinators, Maintenance, Supervisors, and Sandblasters on the proper procedures for handling hazardous waste.  Training records and training content documentation was submitted via email on March 22, 2013.

 

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, rules, and/or permit conditions listed in the findings above.

 

3.            Within thirty (30) days of the Effective Date, Respondent shall submit documentation to IDEM detailing the steps taken at the Site to minimize the possibility of a recurrence of hazardous waste being accumulated at the Site for greater than the timeframes allowed in 40 CFR 262.34, i.e., 90 days for a large quantity generator and 180 days for a small quantity generator.   The steps shall include that hazardous waste drums are labeled and dated prior to placing in the less than 90 day accumulation area.

 

4.            Upon the Effective Date, Respondent shall ensure all accumulated hazardous waste on site is clearly marked with the start of accumulation date.  The start of accumulation date shall be visible for inspection on each container.

 

5.            Upon the Effective Date, Respondent shall ensure while hazardous waste is being accumulated on site each container is clearly marked with the words “Hazardous Waste”.

 

6.            Upon the Effective Date, Respondent shall ensure hazardous waste satellite accumulation containers are clearly marked with the words “Hazardous Waste” or with other words describing the contents.

 

7.            Upon the Effective Date, Respondent shall ensure each accumulated and satellite hazardous waste container is kept closed during storage except when it is necessary to add or remove waste.

 

8.            Within thirty (30) days of the Effective Date, Respondent shall remove any contaminated soil six (6) inches beyond visible contamination.  Prior to removing the contaminated soil, Respondent shall take photographs of the visible contaminated soil area prior to removing the soil and after the soil is removed to verify that all visible soil contamination has been removed.

 

9.            Within sixty (60) days of the Effective Date, Respondent shall submit the photographs and proper disposal documentation including the volume of soil removed and the disposal facility.

 

10.         Within forty five (45) days of the Effective Date, Respondent shall submit a plan on how future releases will be addressed.  The plan shall include that releases/spills will be responded to within 24 hours.  The plan shall also include preventive measures that will be taken to prevent future releases/spills within the product storage area outside the Quonset Building.

 

11.         All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Christina Halloran, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

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 Fifteen Thousand Dollars ($15,000).  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”.

 

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:

 

Order Paragraph No.

Penalty

3

$500 per week

8

$500 per week

9

$500 per week

10

$500 per week

 

14.         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.

 

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 15, 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 Respondent 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 RESPONDENT:

 

 

 

 

 

By: ________________________

 

 

 

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_________

DAY OF

________________________,

 20__.

 

 

For the Commissioner:

 

 

 

Signed 04/29/2013 by Peggy Dorsey for:

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality