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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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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.
2015-22928-H |
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MASTERBRAND CABINETS, 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 Masterbrand Cabinets, Inc. (“Respondent”),
which owns and/or operates a facility with United States Environmental
Protection Agency (“EPA”) ID No. IND 000810929 located at 1491 South Meridian
Road, in Jasper, Dubois 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 June 9, 2015 via Certified Mail to:
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David
M. Randich, President |
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Masterbrand
Cabinets, Inc. |
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P.O.
Box 420 |
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Jasper,
Indiana 47547 |
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Corporation
Service Company, Registered Agent |
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Masterbrand
Cabinets, Inc. |
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251
East Ohio Street, Suite 500 |
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Indianapolis,
Indiana 46204 |
5. Respondent operates as a Large Quantity
Generator (“LQG”) of hazardous waste at the Site.
6. Respondent manufactures wood kitchen
and bathroom cabinets. Spent waste paint
related materials (D001, F003 and F005) and spent flammable solids (D001) are
the primary waste streams generated at the facility.
7. 329 IAC 3.1 incorporates certain
federal hazardous waste management requirements found in 40 CFR 260 through
270, and Part 273 including those identified below.
8. During an investigation, including an inspection
on February 25, 2015 conducted by a representative 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 hazardous waste determination on approximately
twenty-five (25) 5-gallon closed containers of solvent based coatings and
customized coating colors, D001 ignitable hazardous wastes. Containers contained significant quantities
of residual product and were not RCRA empty.
b. Pursuant to 40 CFR 261.7(b), a
container or an inner liner removed from a container that has held any
hazardous waste, except a waste that is a compressed gas or that is identified
as an acute hazardous waste listed in §§ 261.31, 261.32, or 261.33(e) of this
chapter is empty if: (i) All wastes have been removed that can be removed using
the practices commonly employed to remove materials from that type of
container, e.g., pouring, pumping,
and aspirating, and (ii) No more than 2.5 centimeters (one inch)
of residue remain on the bottom of the container or inner liner, or (iii)(A) No more than 3 percent by
weight of the total capacity of the container remains in the container or inner
liner if the container is less than or equal to 119 gallons in size; or (B) No
more than 0.3 percent by weight of the total capacity of the container remains
in the container or inner liner if the container is greater than 119 gallons in
size.
As noted during the inspection,
Respondent did not empty approximately twenty-five (25) closed 5-gallon
containers of solvent based coatings and custom coating colors, D001 ignitable
hazardous wastes, using conventional means.
Respondent poured out additional residue product material inside
containers through spigots during the inspection. Respondent was managing the containers as if
they were RCRA empty and was planning to dispose of them at a solid waste
landfill.
Subsequent to the inspection,
Respondent provided hazardous waste manifest #014139985 JJK, dated March 13,
2015, documenting the proper disposal of solvent based coatings and custom
coating colors, D001 ignitable hazardous wastes, contained in the twenty-five
(25) closed 5-gallon containers at a permitted RCRA Part B TSD facility.
c.
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 at least five (5) 5-gallon containers of off-specification
and outdated obsolete paint waste related material, a D001 ignitable hazardous
waste, on-site for greater than 90 days without complying with 40 CFR Part 264
and 40 CFR Part 270.
d.
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.
e.
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.
f.
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.
g.
Pursuant to 40 CFR 273.15(a) and 329 IAC
3.1-16-1, a small quantity handler of universal waste may accumulate universal
waste for no longer than one year from the date the universal waste is
generated, or received from another handler, unless the requirements of paragraph
(b) of this section are met. Pursuant to
40 CFR 273.15(b), a small quantity handler of universal waste may accumulate
universal waste for longer than one year from the date the universal waste is
generated, or received from another handler, if such activity is solely for the
purpose of accumulation of such quantities of universal waste as necessary to
facilitate proper recovery, treatment, or disposal. However, the handler bears the burden of
proving that such activity is solely for the purpose of accumulation of such
quantities of universal waste as necessary to facilitate proper recovery,
treatment, or disposal.
As noted during the inspection,
Respondent accumulated two (2) 5-gallon containers of universal waste batteries
in the Chemical Storage Room for greater than one year and failed to prove that
this activity was solely for the purpose of accumulation of such quantities of
universal waste as necessary to facilitate proper recover, treatment, or
disposal.
Subsequent to the inspection, Respondent
provided hazardous waste manifest #014139985 JJK, dated March 13, 2015,
documenting the proper disposal of universal waste batteries at a permitted
RCRA Part B TSD facility.
h.
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 ten (10) 5-gallon containers of hazardous waste located in the Chemical
Storage Area Room with accumulation start dates. Additionally, two 5-gallon containers of
hazardous waste located in the Chemical Storage Room were marked with the words
“No Good”, but were not marked with accumulation start dates.
i.
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 fifteen (15) 5-gallon containers of hazardous waste located
in the Chemical Storage Room with the words, “Hazardous Waste.”
j.
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,
Respondent accumulated hazardous waste in containers at or near the point of
generation without a permit and did not properly mark satellite accumulation
containers with either the words “Hazardous Waste” or with other words
describing the contents. This violation was corrected during the inspection.
k. Pursuant to 40 CFR 273.15(c) and 329
IAC 3.1-16-1, a small quantity handler of universal waste who accumulates
universal waste must be able to demonstrate the length of time that the
universal waste has been accumulated from the date it becomes a waste or is received.
As noted during the inspection,
Respondent accumulated boxes of universal waste fluorescent bulbs in the
Chemical Storage Room without demonstrating the length of time the universal
waste had been accumulated.
l. Pursuant to 40 CFR 262.34(a)(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 the following containers closed: three (3) 5-gallon
satellite containers of hazardous waste located at the Intellitrack
Line Sealer #1 Back Boot; two (2) 5-gallon satellite containers of hazardous
waste at the Intellitrack Line Sealer #2 Back Booth;
one (1) 5-gallon satellite container at the Pac-Line Sealer #1 Booth; and one
(1) 5-gallon satellite container at the Intellitrack
Parts Booth.
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 the statutes and
rules listed in the findings above.
3.
Upon the Effective Date, Respondent shall comply
with 40 CFR 262.11 and 40 CFR 261.7(b).
Specifically, Respondent shall ensure all containers that held any hazardous
waste are empty by using commonly employed practices before disposal in a solid
waste permitted land disposal facility or sent off-site for metal recycling.
4.
Upon the Effective Date, Respondent shall not
store hazardous waste on-site for greater than 90 days without complying with
all applicable rules including, but not limited to, 40 CFR Part 264 and 40 CFR
part 270.
5.
Upon the Effective Date, Respondent shall
comply with 40 CFR 273.15(a) and 329 IAC 3.1-16-1. Specifically, Respondent shall not accumulate
universal waste on-site for longer than one year from the date the universal
waste is generated.
6.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(a)(2). Specifically, Respondent shall mark each
container holding hazardous waste with the accumulation start date.
7.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(a)(3). Specifically, Respondent shall label or
clearly mark each container holding hazardous waste with the words “Hazardous
Waste.”
8.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(c)(1)(ii). Specifically, Respondent shall mark
containers of hazardous waste in containers at or near the point of generation
with either the words “Hazardous Waste” or with other words describing the
contents.
9.
Upon the Effective Date, Respondent shall
comply with 40 CFR 273.15(c) and 329 IAC 3.1-16-1. Specifically, Respondent shall demonstrate
the length of time that universal waste has been accumulated
from the date it becomes a waste.
10.
Upon the Effective Date, Respondent shall
comply with 40 CFR 265.173(a).
Specifically, Respondent shall keep satellite accumulation containers
holding hazardous waste closed during storage, except when it is necessary to
add or remove waste.
11. Respondent is assessed
and agrees to pay a civil penalty of nine thousand nine hundred thirty-seven dollars
and fifty cents ($9,937.50). 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”.
12. The civil penalty is 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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Office of Legal Counsel |
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IGCN, Room N1307 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
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 12, above.
14. This Agreed Order shall apply to and be
binding upon Respondent and its successors and assigns. Respondent’s signatory to
this Agreed Order certifies that they are 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 its 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
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By: _________________________ |
By:
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Nancy
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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
9/10/15______ |
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Bruce H Palin |
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Assistant
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Office of
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