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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No.
2013-22026-H |
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CHEMQUE,
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 Chemque,
Inc. “Respondent”, which owns and/or operates a facility with United States
Environmental Protection Agency (EPA) ID No. IN0 000367326 located at 6107 Guion Road, in Indianapolis, 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) on January 28, 2014 via Certified Mail to:
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Michael
J. Schneider, Registered Agent |
Alexander
Botrie, CEO |
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Bose
McKinney & Evans LLP |
Chemque, Inc. |
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111
Monument Circle, Suite 2700 |
266
Humberline Drive |
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Indianapolis,
Indiana 46204 |
Rexdale, Ontario,
Canada M9W 5X1 |
5. On June 13, 1994, Respondent originally
notified as a Conditionally Exempt Small Quantity Generator (“CESQG”) of
hazardous waste at the Site, but the facility was actually a Large Quantity
Generator (“LQG”) at the time of the October 9, 2013 IDEM inspection. Greater than 2200 pounds of hazardous waste had
been generated at the Site, thereby subjecting it to the LQG standards.
6. Respondent manufactures floor adhesives.
7. 329 IAC 3.1 incorporates certain
federal hazardous waste management requirements found in 40 CFR 260 through
270, and Part 273 including these identified below.
8. During an investigation, including an inspection
on October 9, 2013, conducted by representatives of IDEM, the following
violations were found:
a. 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 waste determination on spent wood flooring
adhesive stored in five (5) 275-gallon tote containers. Flash point testing results of the spent
flooring adhesive, dated April 17, 2013, indicate the spent adhesive is an
ignitable (D001) hazardous waste.
Respondent did not correctly interpret the flash point testing results. Respondent mistakenly determined the spent
flooring adhesive was not a hazardous waste.
Subsequent to the inspection,
Respondent determined the spent wood flooring adhesive waste stream currently
generated does not exhibit the ignitability (D001) characteristic. The waste stream will be managed in the
future as a non-hazardous waste stream.
b. Pursuant to 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 Parts 264 and 265 and the
permit requirements of 40 CFR Part 270 unless he has been granted an extension
to the 90-day period.
Pursuant to 40 CFR 270.1(c), a permit
is required for the treatment, storage and disposal of any hazardous waste
without a manifest as required by law.
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 stored hazardous waste without complying with 40 CFR Parts 264, 265
and 270. Four (4) full and one ¼ full
275-gallon tote containers of spent adhesive, a D001 hazardous waste, were
stored inside Respondent’s building without first obtaining a permit from the
department.
c. 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 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 five (5)
275-gallon totes of D001 spent adhesive with accumulation start dates.
d. Pursuant to 40 CFR 262.34(a)(3), a
generator may accumulate hazardous waste on-site for 90 days or less with
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 five (5) 275-gallon totes of D001 spent adhesive with the
words “Hazardous Waste.
e. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.52, the content of the
contingency plan must include the following: a description of appropriate
actions, arrangements with local emergency response teams, contact information
for the emergency coordinators, emergency equipment, and an evacuation plan.
As noted during the inspection,
Respondent’s contingency plan did not include arrangements with local response
teams and the home addresses and office telephone numbers for the emergency
coordinators.
f. Pursuant to 40 CFR 26.34(a)(4)
referencing 40 CFR 265.16(a), (b), & (c), facility personnel must complete
a program of classroom instruction or on-the-job training that teaches them to perform
their duties in compliance with the hazardous waste rules. Employees must be trained within six months
after their date of hire and must take part in an annual review of the initial
training.
As noted during the inspection,
Respondent had not developed a personnel training program which meets the RCRA
requirements for LQGs.
g. Pursuant to IC 13-30-2-1(1), no person
shall discharge, emit, cause, allow, or threaten to discharge, emit, cause, or
allow any contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources, into the environment in any
form that causes or would cause pollution that violates or would violate 329
IAC 10-4-2, a rule adopted by the board under the environmental management laws.
As noted during the inspection,
Respondent allowed cleanout waste from silicone and floor adhesive mixers to be
released and/or spilled onto asphalt under and around a dumpster located
outside south of the Respondent’s building.
h. Pursuant to 329 IAC 10-4-2, no person
shall cause or allow the storage, containment, processing, or disposal of solid
waste in a manner which creates a threat to human health or the environment,
including the creating of a fire hazard, vector attraction, air or water pollution,
or other contamination.
As noted during the record review and
inspection, Respondent caused and/or allowed cleanout waste from silicone and
floor adhesive mixers to be disposed at the Site in a manner which created a
threat to human health or the environment.
Visual evidence of releases of cleanout waste from silicone and floor
adhesive mixers were observed on asphalt under and around a dumpster located
outside south of Respondent’s building.
Subsequent to the inspection,
Respondent contends cleanout waste from silicone and floor adhesive mixers was
cleaned up. The cleanup is subject to
field verification by an IDEM inspector.
9. 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 statutes and
rules listed in the findings here at issue.
3. Upon the Effective Date, Respondent
shall cease operating as a treatment, storage, and/or disposal facility without
first obtaining a RCRA permit and notifying the Commissioner of such activities
pursuant to 40 CFR 270.1(c), IC 13-30-2-1(10), and 329 IAC 3.1-1-10.
4. Within fifteen (15) days of the
Effective Date, Respondent shall submit documentation, including a manifest,
demonstrating that the hazardous waste which was accumulated on-site for
greater than 90 days has been transported off-site for proper disposal.
5. Upon the Effective Date, if in the
future Respondent generates greater than 100 kilograms but less than 1,000
kilograms of hazardous waste in a calendar month and never accumulates more
than 6,000 kilograms of hazardous waste on-site, Respondent shall ensure
compliance with 40 CFR 262.34(d) by not accumulating hazardous waste for more
than 180 days. If Respondent generates
greater than 1,000 kilograms or greater than 1 kilogram of acutely hazardous
waste in a calendar month, Respondent shall ensure compliance with 40 CFR 262.34(b)
by not accumulating hazardous waste for more than 90 days.
6. Upon the Effective Date, Respondent
shall comply with 40 CFR 262.11.
Specifically, Respondent shall conduct proper waste determinations on all
solid wastes generated at the Site.
7. Within ten (10) days of the Effective
Date, Respondent shall notify IDEM’s Regulatory Reporting Section of the proper
generator status for the Site, and shall ensure that the Regulatory Reporting
Section is notified if ever there is a change to the status of the facility.
8. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
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Jennifer Reno, Enforcement Case
Manager |
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Office of Land Quality |
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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 |
9. Respondent is assessed and agrees to
pay a civil penalty of ten thousand four hundred dollars ($10,400). 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”.
10. 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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Paragraph |
Penalty |
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Order
paragraph 4 |
$250
per week |
11. 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.
12. 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 |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
13. 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 9, above.
14. 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 he is fully authorized to execute
this Agreed Order and legally bind the party he represents. No change in ownership, corporate, or
partnership status of Respondent shall in any way alter his status or
responsibilities under this Agreed Order.
15. 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.
16. 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.
17. 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 his applicable permits or any
applicable Federal or State law or regulation.
18. 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.
19. 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.
20. 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.
21. 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
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Printed: ______________________ |
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Office of
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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
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For the
Commissioner: |
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Signed on
4/24/14_________ |
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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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