STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2018-25750-H
					)
m-container solutions, llc,					)
					)
Respondent.					)

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 M-Container Solutions, LLC (“Respondent”), which owns/operates the facility with U.S. EPA I.D. Number IND 043777549, located at 1405 West Missouri Street, in Evansville, Vanderburgh 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 March 21, 2019 via Certified Mail to:

Matthew S. Conti, Registered Agent	Matthew S. Conti
M-Container Solutions, LLC	M-Container Solutions, LLC
1405 West Missouri Street	3909 West Eaglecrest
Evansville, Indiana 47711	Brookline Station, Missouri 65619

5. Respondent cleans paint pots picked up from Red Spot Paint & Varnish Co., Inc. located in Evansville, Indiana. Methyl ethyl ketone (“MEK”) and toluene solvents are used to clean paint pots. Respondent notified for large quantity hazardous waste activities on March 1, 2018.

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 20, 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 conduct hazardous waste determinations on the following solid wastes: RS-100/Water/Paint Sludge waste underneath the tote cleaning line, waste generated by the tote cleaning line (near solvent recycling tote), waste labeled “Waste Water” at the end of the tote cleaning line, spent filters from the north side of the tote cleaning line, and solvent-contaminated wipes inside a solid waste dumpster. The RS-100/Water/Paint Sludge waste was stored in one 55-gallon drum, one 200-gallon container, one 500-gallon tank, and one shop vac. The waste generated by the tote cleaning line was stored in four (4) 300-gallon plastic totes, one of which contained label remover. The waste labeled “Waste Water” was stored in six (6) 300-gallon plastic totes. The spent filters were stored in one 55-gallon drum.

Additionally, Respondent made an improper determination on solvent-contaminated wipes (rags) located in an eight (8) cubic-yard solid waste dumpster.

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 Part 261.

As noted during the inspection, Respondent stored three (3) 55-gallon containers of D001, D035, and F005 hazardous waste identified or listed in 40 CFR Part 261 without a permit.

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 storage 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 storage activities.

e. 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 three (3) 55-gallon containers of D001, D035, and F005 hazardous waste in the primary less than 90-day container storage area located near the paint pot machines for greater than 90 days without complying with 40 CFR Part 264 and 40 CFR Part 270. Two containers were marked with December 20, 2017 accumulation start dates and one container was marked with a January 15, 2018 accumulation start date.

On October 22, 2018, Respondent submitted a written response stating the three (3) containers of D001, D035, and F005 hazardous waste stored without a permit were sent for disposal. This violation is subject to field verification.

f. Pursuant to 40 CFR 262.20(a), a generator who sends hazardous waste off-site must ensure that manifests are fully filled out and contain accurate information.

As noted during the inspection, Respondent did not include all of the required information on hazardous waste manifests. Respondent did not include its U.S. EPA ID number IND043777549 in Box 1, Generator ID Number. Respondent incorrectly listed IN-CESQG (“Conditionally Exempt Small Quantity Generator”) in Box 1.

g. Pursuant to 40 CFR 262.23(a)(3) and 40 CFR 262.40(a), the generator must retain copies of hazardous waste manifests for a period of three (3) years from the date of receipt of the hazardous waste by the designated facility.

As noted during the inspection, Respondent failed to retain copies of all hazardous waste manifests within the past (3) years.

h. 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 more than 55 gallons of D001, D035, and F005 hazardous waste liquids and D001, D035, and F005 hazardous waste solids (solvent-contaminated rags) in the Blade Cleaning/Valve Cleaning/Tote Cleaning area of the facility without meeting the applicable requirements.

On October 22, 2018, Respondent submitted a written response stating this violation has been corrected. The correction of this violation is subject to field verification.

i. 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 following satellite accumulation containers of hazardous waste with the words “Hazardous Waste” or other words identifying the contents: ten (10) 55-gallon drums, two (2) cardboard boxes, one 5-gallon fire can, and ten (10) 2-gallon containers.

On October 22, 2018, Respondent submitted a written response stating this violation has been corrected. The correction of this violation is subject to field verification.

j. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 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 failed to mark three (3) 55-gallon drums of hazardous waste located in the secondary (smaller) 90-day hazardous waste storage area, approximately seventeen (17) 55-gallon drums of hazardous waste in the primary 90-day hazardous waste storage area, and one 8-cubic yard solid waste dumpster containing hazardous waste (solvent-contaminated rags) located outdoors near the concrete storage pad with accumulation start dates.

On October 22, 2018, Respondent submitted a written response stating this violation has been corrected. The correction of this violation is subject to field verification.

k. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 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 three (3) 55-gallon drums of hazardous waste located in the secondary (smaller) 90-day hazardous waste accumulation area, approximately seventeen (17) 55-gallon drums of hazardous waste in the primary 90-day hazardous waste accumulation area, one 85-gallon specialty drum of hazardous waste located outdoors near the concrete storage pad, and one 8-cubic yard solid waste dumpster containing hazardous waste (solvent-contaminated rags) located outdoors near the concrete storage pad with the words “Hazardous Waste.”

On October 22, 2018, Respondent submitted a written response stating this violation has been corrected. The correction of this violation is subject to field verification.

l. 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 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 one 85-gallon specialty drum of D001, D035, and F005 liquid hazardous waste stored outdoors on gravel next to the concrete storage pad. The drum was open and not maintained properly to prevent a release to the environment. Additionally, Respondent had never cleaned out the secondary containment around the tote cleaning machine area. This area contains D001, D035, and F005 hazardous waste liquids and D035 and F005 hazardous waste solids. By allowing the secondary containment to accumulate hazardous waste without proper maintenance, Respondent is not operating in a way that would minimize the possibility of a release.

On January 9, 2020, Respondent submitted photos showing the removal of D001, D035, and F005 hazardous waste liquids and D035 and F005 hazardous waste solids from the secondary containment around the tote cleaning machine area. Additionally, on October 22, 2018, Respondent notified IDEM the 85-gallon specialty drum stored outdoors was decommissioned and dismantled. On May 23, 2019, IDEM was notified the liquid inside the drum was disposed of as D001, D035, and F005 hazardous waste. The correction of this violation is subject to field verification.

m. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, a generator must maintain aisle space to allow the unobstructed movement of personnel, fire protection, equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency.

As noted during the inspection, Respondent failed to provide the required aisle space in the less than 90-day primary hazardous waste storage area.

On October 22, 2018, Respondent submitted a written response stating this violation has been corrected. The correction of this violation is subject to field verification.

n. Pursuant to 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.171, if a container holding hazardous waste is not in good condition, or if it begins to leak, the generator must transfer the hazardous waste from this container to a container that is in good condition.

As noted during the inspection, Respondent stored approximately ten (10) small containers of hazardous waste (less than 2-gallons) located in the Blade Cleaning/Valve Cleaning/Tote Cleaning Area that were not in good condition.

On October 22, 2018, Respondent submitted a written response stating this violation has been corrected. The correction of this violation is subject to field verification.

o. Pursuant to 40 CFR 262.34(a)(1)(i) and 40 CFR 262.34(c)(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 satellite containers of hazardous waste closed: eight (8) 55-gallon drums, ten (10) small (less than 2 gallons) containers, one 5-gallon fire can, two (2) 20-gallon cardboard boxes. Additionally, Respondent did not store the following less than 90-day containers of hazardous waste closed: one 85-gallon specialty drum located outdoors on gravel and one 8-cubic yard dumpster containing hazardous waste rags (solvent-contaminated rags) located outdoors.

On October 22, 2018, Respondent submitted a written response stating this violation has been corrected. The correction of this violation is subject to field verification.

p. Pursuant to 40 CFR 262.34(a)(1)(i) 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 the primary, secondary, and outdoor less than 90-day hazardous waste storage areas.

On October 22, 2018, Respondent submitted a written response stating this violation has been corrected. The correction of this violation is subject to field verification.

q. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.51, a generator must have a contingency plan for the facility.

As noted during the inspection/record review, Respondent did not have a contingency plan which meets the RCRA requirements for LQGs.

On November 20, 2019, Respondent submitted a revised contingency plan which meets the RCRA requirements for LQGs.

r. Pursuant to 40 CFR 262.34(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 management 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 did not provide employees with initial and annual training which meets the RCRA requirements for LQGs.

On October 22, 2018, Respondent submitted a written response stating employees have been properly trained. The written response does not meet training requirements for LQGs.

On September 17, 2019, Respondent submitted adequate written documentation that shows personnel who handle hazardous waste were provided training that meets LQG requirements.

8. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 262.11. Specifically, Respondent shall ensure proper hazardous waste determinations are conducted on all wastestreams in the future.

4. Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(b), 40 CFR 270.1(c), IC 13-30-2-1(10), and 329 IAC 3.1-1-10. Specifically, Respondent shall ensure that it does not accumulate hazardous waste for more than 90 days without a permit or without complying with 40 CFR 264.

5. Upon the Effective Date, Respondent shall comply with 40 CFR 262.20(a). Specifically, Respondent shall ensure that manifests contain accurate information.

6. Upon the Effective Date, Respondent shall comply with 40 CFR 262.23(a)(3) and 40 CFR 262.40(a). Specifically, Respondent shall retain copies of fully signed waste manifests on-site for 3 years.

7. Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(c)(1) and (2). Specifically, Respondent shall not accumulate more than 55-gallons of hazardous waste from the same point of generation at or near the point of generation and under control of the operator without complying with the requirements of 40 CFR 262.34(c)(2).

8. Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(c)(1)(ii). Specifically, Respondent shall mark containers of hazardous waste 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 262.34(a)(1)(i) and 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.171. Specifically, Respondent shall transfer hazardous waste in a container that is not in good condition, or that begins to leak, to a container that is in good condition.

10. Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(1)(i) and 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a). Specifically, Respondent shall keep satellite accumulation and less than 90-day containers holding hazardous waste closed during storage, except when it is necessary to add or remove waste.

11. Upon the Effective Date, Respondent shall comply with 40 CFR 265.174. Specifically, Respondent shall inspect areas where containers are stored, at least weekly, looking for leaks and deterioration caused by corrosion or other factors. Respondent shall maintain copies of weekly inspection records on-site for period of one (1) year from the Effective Date.

12. Upon the Effective Date, Respondent shall comply with 40 CFR 265.35. Specifically, Respondent shall provide adequate aisle space to allow for the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to all areas of facility operation including, but not limited to, hazardous waste storage areas.

13. Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(2). Specifically, Respondent shall clearly mark the date when the accumulation begins on each container accumulating hazardous waste.

14. Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(3). Specifically, Respondent shall, while being accumulated on-site, mark each container and tank holding hazardous waste with the words “Hazardous Waste.”

15. Upon the Effective Date, Respondent shall comply with 40 CFR 265.31. Specifically, Respondent shall ensure hazardous waste is not spilled on the floor and containers of hazardous waste are not stored open and on gravel.

16. Respondent is assessed and agrees to pay a civil penalty of Zero Dollars ($0). This penalty reflects a significant reduction from the original proposed penalty based upon evidence submitted to IDEM by Respondent which adequately demonstrated Respondent’s inability to pay the original proposed civil penalty.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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 L. McClure, Chief
	Land 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 on 2/18/2020
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality