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. 2017-24700-H

 

 

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LAL Acquisition, 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 LAL Acquisition, Inc. (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (“EPA”) ID No. IND 006 419 022 located at 9501 South Center Road, in Muncie, Delaware 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”) to:

 

Mr. Todd E. Hunt, President and Registered Agent

LAL Acquisition, Inc.

9501 South Center Road

Muncie, IN 47302-9443

 

5.               Respondent notified EPA of Small Quantity Hazardous Waste Generator (SQG) activities.

 

6.               Respondent specializes in designing, engineering, and customizing aerial lifts.

 

7.               329 Indiana Administrative Code (“IAC”) 3.1 incorporates certain federal hazardous waste management requirements found in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273, including those identified below.

 

8.               During an investigation including an inspection conducted on April 28, 2017 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 hazardous waste determinations on the wash water generated from cleaning metal parts prior to painting and the solvent contaminated wipes, which both are solid wastes generated by Respondent.

 

Since a waste determination had not been previously conducted on the wash water, IDEM requested a waste determination in a letter dated May 15, 2017.  Based on Respondent’s submittal dated June 14, 2017, the wash water was found to be non-hazardous.

 

Respondent did not make a proper waste determination for the solvent-contaminated wipes (F003, F005, D001).  The solvent-contaminated wipes were being air dried and disposed of as a solid waste.  Drying solvent-contaminated wipes is considered treatment of hazardous waste.  These solvent- contaminated wipes may be managed accordance with the exclusion found at 40 CFR 261.4(b)(18), provided the required conditions are met; or, the wipes must be managed as a hazardous waste.

 

b.               Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31, facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment.

 

As noted during the inspection, Respondent failed to properly manage the solvent-contaminated wipes (F003, F005, D001) to minimize a release to the environment.  The solvent-containing wipes were allowed to be air dried prior to disposal.

 

c.               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 (F003, F005, D001) in containers at or near the point of generation, outside the paint room without a permit and did not properly mark satellite accumulation containers with either the words “Hazardous Waste” or with other words describing the contents.

 

d.               Pursuant to 40 CFR 262.34(d)(2) 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 a container of hazardous waste closed.  Specifically, one (1) fifty-five (55) gallon drum of solvent-contaminated wipes (F003, F005, D001) was stored open outside the paint room.  The container was closed during the inspection.

 

e.               Pursuant to 40 CFR 262.34(c)(2), a generator who accumulates either hazardous waste or acutely hazardous waste listed in §261.31 or §261.33(e) in excess amounts listed in paragraph (c)(1) of this section at or near the point of generation must, with respect to that amount of excess waste, comply within three days with paragraph (a) of this section or other applicable provisions of this chapter.  During the three day period the generator must continue to comply with paragraphs (c)(1)(i) and (ii) of this section.  The generator must mark the container holding the excess amount accumulation of hazardous waste with the date the excess amount began accumulating.

 

As noted during the inspection, Respondent accumulated an excess of fifty-five (55) gallons of hazardous waste (F003, F005, D001) at the liquid paint booth satellite location.  The excess accumulated amount was not marked with the date the excess began accumulating or marked or labeled with the words “Hazardous Waste” or with other words that identify the contents of the containers.  The excess amount had been accumulating for approximately 2 days at the time of the inspection.

 

f.                Pursuant to 40 CFR 262.34(d)(5)(ii), the generator must post the following information next to the telephone: (1) the name and phone number of the emergency coordinator; (2) location of fire extinguishers and spill control material and if present, fire alarm; (3) the telephone number of the fire department, unless the facility has a direct alarm.

 

As noted during the inspection, Respondent failed to post the required information.

 

g.               Pursuant to 262.34(d)(5)(iii), the generator must ensure all the employees are thoroughly familiar with proper waste handling and emergency procedures, relevant to their responsibilities during normal facility operations and emergencies.

 

Respondent’s employees have had some training; however, based on the violations found at the time of the inspection, the training provided was inadequate.

 

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

 

As noted during the inspection, Respondent did not label one (1) fifty-five (55) gallon container with the words “Used Oil.”

 

i.                 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 discharged, emitted, caused, allowed, or threatened to discharge, emit, cause or allow the following contaminants or waste into the environment:

 

a.               Solvent-contaminated wipes (F003, F005, D001) were being air dried and disposed of as solid waste.  Air drying solvent-contaminated wipes allows hazardous constituents to be emitted into the air.  Drying solvent-contaminated wipes is considered treatment; treatment cannot be conducted without a permit.

 

b.               Blue powder coat paint was observed on the vents, exterior walls of the building, surrounding equipment, and the ground.  It was allowed to drain to a storm water drain just to the east of the paint booth. The storm drain discharges to No Name Creek.

 

c.               Wash water was observed draining from the paint prep room to the outside storm drain to the north of the building. The storm drain discharges to No Name Creek.

 

d.               Overspray was also observed coming from vents in the liquid paint booth and was observed on the vent on the south side of the compressor room.

 

j.                 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 inspection, Respondent caused and/or allowed solid waste to be stored, contained, processed or disposed at the Site in a manner which creates a threat to human health or the environment in the following areas;

 

a.               Solvent-contaminated wipes (F003, F005, D001) were being air dried and disposed of as solid waste.  Air drying solvent-contaminated wipes allows hazardous constituents to be emitted into the air.  Drying solvent contaminated wipes is considered treatment; treatment cannot be conducted without a permit;

 

b.               Blue powder coat paint was observed on the vents, exterior walls of the building, surrounding equipment, and the ground.  It was allowed to drain to a storm water drain just to the east of the paint booth. The storm drain discharges to No Name Creek;

 

c.               Wash water was observed draining from the paint prep room to the outside storm drain to the north of the building. The storm drain discharges to No Name Creek;

 

d.               Overspray was also observed coming from vents in the liquid paint booth and was observed on the vent on the south side of the compressor room.

 

k.               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 treated hazardous waste identified or listed in 40 CFR Part 261 without a permit.  Specifically, solvent-contaminated wipes (F003, F005, D001) were being air dried and disposed of as solid waste.  Drying solvent contaminated wipes is considered treatment; treatment cannot be conducted without a permit.

 

l.        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, solvent-contaminated wipes (F003, F005, D001) were being air dried and disposed of as solid waste.  Drying solvent contaminated wipes is considered treatment; treatment cannot be conducted without a permit.

 

m.      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 treatment activities.  Specifically, solvent-contaminated wipes (F003, F005, D001) were being air dried and disposed of as solid waste.  Drying solvent contaminated wipes is considered treatment; treatment cannot be conducted without a permit.

 

9.               Respondent submitted a preliminary response dated February 15, 2018 to the Notice of Violation and Proposed Agreed Order dated January 5, 2018.  These actions will be field verified.

 

10.       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.               Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(4) referencing 40 CFR 265.31.  Specifically, Respondent shall cease air drying the solvent-contaminated wipes (F003, F005, D001) prior to disposal.

 

4.               Upon the Effective Date, Respondent shall comply with 40 CFR 262.11.  Specifically, within thirty (30) days of the Effective Date, Respondent shall submit to IDEM how the solvent-contaminated wipes (F003, F005, D001) will be managed in the future.  Respondent may manage the solvent-contaminated wipes (F003, F005, D001) as a hazardous waste in accordance to the applicable regulations.  They also may be managed in accordance with the exclusion found at 40 CFR 261.4(b)(18) unless they exhibit a characteristic of toxicity, corrosivity, or reactivity due to contaminants other than solvents.

 

5.               Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(c)(1) and (2).  Specifically, Respondent shall ensure satellite hazardous waste containers are marked with either the words “Hazardous Waste” or with other words describing the contents.  Respondent shall also ensure the container holding the excess of hazardous waste is marked with the date the excess started to accumulate.

 

6.               Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(d)(2) referencing 40 CFR 265.173(a).  Specifically, Respondent shall ensure containers of hazardous waste are stored closed during storage, except when it is necessary to add or remove waste.

 

7.               Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM employee training documentation.  This shall include a description of the training and the employees who received the training to ensure they are thoroughly familiar with the proper waste handling and emergency procedures, relevant to their responsibilities during normal facility operations and emergencies.

 

8.               Upon the Effective Date, Respondent shall ensure all used oil containers and aboveground tanks are labeled with the words ‘Used Oil”.

 

9.               Within thirty (30) days of the Effective Date, Respondent shall submit conduct the following:

 

a.               Submit to IDEM the steps that will be implemented to prevent powder coat paint from exiting the building from the vents onto the exterior walls of the building, surrounding equipment and onto the ground.  The blue powder coat paint outside on the ground shall be cleaned up six (6) inches beyond visible contamination.  The concrete area with blue powder coat paint shall be mechanically cleaned by scraping, sweeping, or other method, to remove all physical contamination.  The generated waste shall be characterized and disposed of properly.  Submit to IDEM the disposal documentation.

 

b.               Cease discharging wash waters from the paint prep room to the outside storm drain to the north of the building without first obtaining the applicable industrial wastewater permit from IDEM.  Submit to IDEM how the wash waters will be managed and disposed in the future.

 

c.               Submit to IDEM the steps that will be implemented to prevent paint overspray in the vents in the paint liquid room and from the vents in the compressor room.

 

10.           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

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.           Respondent is assessed and agrees to pay a civil penalty of Twenty Three Thousand and Four Hundred Dollars ($23,400).  Within sixty (60) days of the Effective Date, Respondent shall pay a portion of this penalty in the amount of Four Thousand Six Hundred and Eighty Dollars ($4,680) 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 Muncie, Indiana.  Respondent will make a payment in the amount of Eighteen Thousand Seven Hundred and Twenty Dollars ($18,720) to fund SEP activities at the Brownfield Site.  Respondent shall make such payment to the IFA within ninety (90) 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.  In the event that the civil penalty is not paid within sixty (60) days of the Effective Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101.  The interest shall continue to accrue until the civil penalty is paid in full.

 

The Brownfield Site at which some or all of the SEP proceeds will be spent will be determined by the Brownfields Program for a site located in Muncie, Indiana.  The designation of this Brownfield Site to receive the SEP proceeds is agreed upon by the Complainant, Respondent, and the IFA.  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 Muncie 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 ninety (90) 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 sixty (60) 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- Muncie" and the Case Numbers of this action shall be included in the memo line of the check.  The check shall be mailed to:

 

Meredith Gramelspacher

Indiana Brownfields Program - SEP

100 N. Senate Avenue

Room 1275

Indianapolis, Indiana  46204

 

12.           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:

 

Paragraph

Penalty

4

100/week

7

100/week

9

500/week

 

13.           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.

 

14.           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

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

15.           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 14, above.

 

16.           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.

 

17.           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.

 

18.           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.

 

19.           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.

 

20.           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.

 

21.           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.

 

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

COUNSEL FOR RESPONDENT:

AUTHORITY:

 

 

 

By:__________________________

By: ________________________

 

Director & General Counsel

 

 

 

Date:_________________________

Date: ______________________

 

 

 

 

COUNSEL &/ORAUTHORIZED

 

REPRESENTATIVE:

 

For the City of Muncie

 

 

 

 

 

By:_________________________

 

 

 

Date:________________________

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_________

DAY OF

________________________,

20__.

 

 

For the Commissioner:

 

 

 

_Signed 02/07/2019 By:

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality