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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. 2018-25183-H |
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JAYCO, 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 Indiana Code (“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 IC 13-13-1-1.
2.
Respondent is Jayco,
Inc. (“Respondent”), which owns/operates the facility with U.S. EPA I.D. Number
IND 000130195 located at 536 Michigan Street, in Topeka, LaGrange 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 August 27, 2018 via Certified Mail to:
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Derald Bontrager, President |
Wilbur Bontrager, Registered Agent |
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Jayco, Inc. |
Jayco, Inc. |
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13615 County Road 12 |
903 South Main Street |
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Middlebury, IN 46540 |
Middlebury, IN 46540 |
5.
Respondent produces Recreational Vehicles for
camping and travel. Respondent notified for small quantity hazardous waste
activities.
6.
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.
7.
During an investigation, including an
inspection on June 23, 2017, 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 conduct hazardous waste determinations on solid wastes generated by
Respondent stored in nine (9) 55-gallon drums located outdoors on the north
side of the property near Building 75 and one 55-gallon drum located outdoors
on the south side of the property near the Maintenance Building, Building 76.
Respondent made an improper waste determination on waste generated from
puncturing aerosol cans. The waste generated from the puncturing of aerosol
cans is a D001 ignitable hazardous waste. Additionally, Respondent made an
improper waste determination on waste generated from emptying the contents of
ABS cement containers. The waste from ABS cement containers is emptied into the
same open 55-gallon drums or in boxes within 55-gallon drums as the waste from
puncturing aerosol cans. The waste generated from emptying ABS cement
containers is a D001 ignitable hazardous waste. The two wastestreams
are allowed to dry and solidify prior to disposal as solid waste.
Subsequent to the inspection, Respondent
conducted hazardous waste determinations on solid wastes located outdoors. The
wastes were consolidated into five (5) 55-gallon containers. Four (4) of the
55-gallon containers were shipped off-site for disposal as D001 ignitable
hazardous waste and one 55-gallon container was shipped off-site for disposal
as solid waste.
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 261.
As noted during the inspection,
Respondent treated hazardous waste identified or listed in 40 CFR Part 261
without a permit. Respondent collected D001 ignitable hazardous generated from
the puncturing of aerosol cans and emptying ABS cement containers in 55-gallon
drums or in boxes within 55-gallon drums.
Respondent air dried/solidified D001 hazardous waste in open containers
before sending off-site for disposal as solid waste.
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.
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 treatment
activities.
e. Pursuant to 40 CFR 262.34(c)(1), a
generator may accumulate as much as 55 gallons of hazardous waste or one quart
of acutely hazardous waste in containers at or near any point of generation (in
a satellite container), and under the control of the operator of the process
generating the waste.
As noted during the inspection,
Respondent accumulated hazardous waste in a satellite accumulation container
that was not at or near the point of generation or under the control of the
operator of the process generating the waste. The satellite accumulation
container from the floors area of Building 75 was stored in the shipping area
of Building 75.
f. Pursuant to 40 CFR 262.34(c)(1)(i) and
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 fourteen (14) satellite accumulation containers of
hazardous waste throughout the facility closed.
Additionally, Respondent did not store less than 180-day accumulation
containers closed located outdoors near Building 75. The less than 180-day
accumulation containers located outdoors were either completely open or without
bungs.
g. Pursuant to 40 CFR 262.34(c)(2), a
generator who accumulates hazardous waste in excess of the amounts listed in 40
CFR 262.34(c)(1) at or near any point of generation must, with respect to that
amount of excess waste, comply within three days with 40 CFR 262.34(a). 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
accumulation of hazardous waste with the date the excess amount began
accumulating.
As noted during the inspection,
Respondent accumulated D001 ignitable hazardous waste from the puncturing of
aerosol cans in the floors area of Building 75 without meeting applicable
requirements.
h. 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 the satellite accumulation
container of hazardous waste with the words “Hazardous Waste” or other words
identifying the contents.
i.
Pursuant to 40 CFR 262.34(d)(4) referencing 40
CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for 180
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 failed to
clearly mark hazardous waste containers with accumulation start dates. Several
55-gallon drums of D001 ignitable hazardous waste stored outdoors north of
Building 75 were not marked with accumulation start dates.
j. Pursuant to 40 CFR 262.34(d)(4) referencing
40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 180
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.” Several 55-gallon drums of D001 ignitable hazardous waste stored outdoors
north of Building 75 were not marked with the words “Hazardous Waste”.
k. Pursuant to 40 CFR 262.34(d)(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 a 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 aerosol cans and containers stored
outdoors of D001 ignitable hazardous waste to minimize a release to the
environment. Aerosol cans containing adhesive foam are punctured without
minimizing the possibility of a release. The cans are punctured in open
55-gallon drums or in boxes in open drums allowing the contents to evaporate
and/or solidify before being disposed of as a solid waste. Ignitable (D001)
hazardous waste and non-hazardous waste were stored in open containers outdoors
north of Building 75. The drums were without
tops and/or bungs and contained mixtures of various adhesives and rainwater.
l. Pursuant to 40 CFR 262.34(d)(2)
referencing 40 CFR 265.174, a generator must inspect areas where containers are
stored, at least weekly, looking for leaks and deterioration caused by
corrosion or other factors.
As noted during the inspection,
Respondent failed to conduct weekly inspections of less than 180-day
accumulation areas located outdoors.
m. Pursuant to 40 CFR 262.34(d)(5)(ii), the
generator must post the following information next to the telephone: (A) The
name and phone number of the emergency coordinator; (B) Location of fire
extinguishers and spill control material, and if present, fire alarm; and (C)
The telephone number of the fire department, unless the facility has a direct
alarm.
As noted during the inspection,
Respondent did not post the name and phone of the emergency coordinator,
location of fire extinguishers and spill control material, and telephone number
of the fire department next to the telephone.
On June 4, 2018, IDEM received photo
documentation showing the name and phone of the emergency coordinator, location
of fire extinguishers and spill control material, and telephone number of the
fire department next to the telephone.
n. Pursuant to 40 CFR 262.34(d)(5)(iii), the generator must ensure that all employees are
thoroughly familiar with proper waste handling and emergency procedures,
relevant to their responsibilities during normal facility operations and
emergencies.
As noted during the inspection,
Respondent provided on-the-job training; however, employees had not been
trained to be thoroughly familiar with proper hazardous waste handling and
emergency procedures.
o. Pursuant to 329 IAC 13-4-3(d),
generators must label all used oil containers and above ground tanks with the
words “Used Oil”.
As noted during the inspection, the used
oil tank on the south side of the maintenance building was not properly
labeled.
8.
Subsequent to the inspection, Respondent
contends areas of dried waste on walls and floor were removed and properly
disposed of at a permitted disposal facility. The cleanup is subject to field
verification by an IDEM inspector.
9.
Subsequent to the issuance of the Notice of
Violation, Respondent ceased operations at the Site.
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.
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
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Office of Land Quality |
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Indiana Department of Environmental
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
4.
Respondent is assessed and agrees to pay a
civil penalty of Thirty Thousand and Four Hundred Dollars ($30,400.00). 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”.
5.
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
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Accounts Receivable |
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IGCN, Room N1340 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
6.
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 5, above.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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
communication with the EPA or any other agency or entity.
14.
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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Linda L. McClure, Chief |
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Land Enforcement Section |
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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By:
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For the
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Signed on 8/26/19 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
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