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. 2018-25548-H

 

 

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zentis north america holding, llc,

 

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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 Zentis North America Holding, LLC (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (“EPA”) ID No. IND 051 947 430, located at 2050 N Oak Road, in Plymouth, Marshall 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:

 

Thomas Ginschel, CEO

CT Corporation System, Registered Agent

Zentis North America Holding, LLC

Zentis North America Holding, LLC

2050 N Oak Road

150 West Market Street, Suite 800

Plymouth, IN 46563

Indianapolis, IN 46204

 

5.               Respondent notified EPA of Small Quantity Generator activities.

 

6.               Respondent manufactures food preparations for yogurt manufactures.

 

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 on August 1, 2018 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 hazardous waste determinations on two (2) pallets of aerosol paint cans, paint containers, and aerosol cans which were solid wastes generated by Respondent.  Subsequent to the inspection, Respondent determined that the aerosol cans were empty and the paint cans and containers were either empty or contained latex paint which was non-hazardous.

 

Respondent did not properly determine whether the spent isopropyl alcohol and spent alcohol based flavorings shipped off-site in 2016 and up to and including May 2017 to Disposal and Recycling Technologies (“DART”) located in Detroit, Michigan was a hazardous waste.

 

Based on available information received during the inspection, the spent isopropyl alcohol and spent alcohol based flavorings were processed through DART’s Distilled Spirits Plant and was sold as a fuel.  According to 40 CFR 261.2(e)(2), solid wastes that are recycled and that are burned for energy recovery, used to produce a fuel, or contained in fuels remain a solid waste.

 

On August 21, 2018, Respondent provided additional information regarding the exclusion of the spent isopropyl alcohol and spent alcohol based flavorings.  Based on this information industrial ethyl alcohol is exempt per 40 CFR 261.6(a)(3).  IDEM concurs that the spent alcohol based flavorings meets this exemption but not the spent isopropyl alcohol.

 

Since the spent isopropyl alcohol was sold as a fuel, the 40 CFR 261.2(e)(2) exclusion also does not apply and the spent isopropyl alcohol waste stream should have been managed as a D001 hazardous waste.  As of July 2017, Respondent has been manifesting each of these waste streams to permitted, treatment, storage and disposal facilities as a D001 hazardous waste.

 

b.       Pursuant to 40 CFR 262.20, a generator who transports, or offers for transportation, hazardous waste for offsite treatment, storage, or disposal, must prepare a manifest. A generator must designate on the manifest one facility which is permitted to handle the waste described on the manifest. A generator may designate an alternate facility to handle his waste in the event that an emergency prevents delivery of the waste to the primary designated facility.

 

As noted during the inspection, Respondent offered hazardous waste for transportation for offsite treatment, storage, or disposal without preparing a manifest.  Specifically, Respondent was offering for transport spent isopropyl alcohol (D001) to an unpermitted facility on a bill of lading.  As of July 2017, Respondent has been manifesting this waste stream to a permitted, treatment, storage and disposal facility as a D001 hazardous waste.

 

c.       Pursuant to IC 13-30-2-1(12), a person may not cause or allow the transportation of a hazardous waste without a manifest if a manifest is required by law.

 

As noted during the inspection, Respondent offered hazardous waste for transportation for offsite treatment, storage, or disposal without preparing a manifest.  Specifically, Respondent was offering for transport spent isopropyl alcohol to an unpermitted facility on a bill of lading.  As of July 2017, Respondent has been manifesting this waste stream to a permitted, treatment, storage and disposal facility as a D001 hazardous waste.

 

d.       Pursuant to IC 13-30-2-1-(11), a person may not deliver hazardous waste to a hazardous waste facility that;

(A)      is not approved; or

(B)      does not hold a permit from the department.

 

As noted during the inspection, Respondent was sending spent isopropyl alcohol (D001) to an unpermitted facility on a bill of lading.  As of July 2017, Respondent has been manifesting this waste stream to a permitted, treatment, storage and disposal facilities as a D001 hazardous waste.

 

e.       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.  Specifically, Respondent had six (6), two (2) gallon plastic containers of spent isopropyl alcohol stored in the hazardous waste cage that were not marked with the accumulation start date.

 

Subsequent to the inspection, Respondent re-containerized the plastic containers of the spent isopropyl alcohol into a larger container and marked the container with the start of accumulation date.

 

f.        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 failed to mark hazardous waste containers with the words "Hazardous Waste."  Specifically, Respondent had six (6), two (2) gallon plastic containers of spent isopropyl alcohol stored in the hazardous waste cage that were not marked with the words “Hazardous Waste.”

 

Subsequent to the inspection, Respondent re-containerized the plastic containers of the spent isopropyl alcohol into a larger container and placed the words ‘Hazardous Waste” on the container.

 

g.       Pursuant to 40 CFR 273.14(d)(1) and 329 IAC 3.1-16-2(4), universal waste mercury-containing equipment (i.e. each device), or a container in which the equipment is contained, must be labeled or marked clearly with any of the following phrases: "Universal Waste", "Mercury Containing Equipment", "Waste Mercury-Containing Equipment", or "Used Mercury-Containing Equipment" or other words that accurately identify universal waste lamps.

 

As noted during the inspection, Respondent had one (1) box of universal waste lamps located near the maintenance shop that were not labeled with any of the required phrases noted above or other words accurately identifying the universal waste lamps.

 

Subsequent to the inspection, the boxes of universal waste lamps were properly labeled.

 

h.       Pursuant to 40 CFR 273.13(c)(1), a small quantity handler of universal waste must place universal waste in containers that are structurally sound, compatible with the contents of the device, must lack evidence of leakage, spillage, or damage that could cause leakage and stored closed while accumulating.

 

As noted during the inspection, Respondent had two (2) boxes of universal waste lamps located near the maintenance shop that were not stored closed while accumulating.

 

          Subsequent to the inspection, the universal waste lamp boxes were closed.

 

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

 

3.               Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.11.  Specifically, Respondent shall make a waste determination on any solid waste generated in the future to determine if that waste is hazardous.  If the waste is hazardous it shall be managed according to the applicable regulations.

 

4.               Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.20 and IC 13-30-2-1(12).  Specifically, Respondent shall ensure any regulated hazardous waste offered for transportation is accompanied by a uniform hazardous waste manifest designated to a permitted treatment, storage, or disposal facility.

 

5.               Upon the Effective Date of this Agreed Order, 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.

 

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

 

7.               Upon the Effective Date of this Agreed Order, Respondent shall ensure universal waste containers are properly labeled identifying the contents and stored closed while accumulating.

 

8.               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

 

9.               Respondent is assessed and agrees to pay a civil penalty of Three Thousand Six Hundred Dollars ($3,600).  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.           Civil 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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

 

11.           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 10, above.

 

12.           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.

 

13.           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.

 

14.           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.

 

15.           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.

 

16.           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.

 

17.           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.

 

18.           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 EPA or any other agency or entity.

 

19.           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:  _________________________

 

Linda McClure, 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 07/17/2019 By:

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality