|
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. 2018-25890-H |
|||
|
|
|
) |
|
||||
|
HOIST LIFTRUCK MFG., 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 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 Hoist Liftruck
Mfg., LLC (“Respondent”), which owns/operates the facility with U.S. EPA I.D.
Number INR 000145409 located at 4407 Railroad Avenue, in East Chicago, Lake County,
Indiana (“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Respondent waives issuance of a Notice of
Violation and the settlement period of sixty (60) days as provided for by IC
13-30-3-3.
5.
Respondent manufactures and assembles lift
trucks based on customer specifications.
Respondent notified for small quantity hazardous waste activities on
April 18, 2018.
6.
Respondent was actually a Large Quantity
Generator (“LQG”) at the time of the November 28, 2018 inspection. The Site generated greater than 2,200 pounds
(1,000 kg) per month of hazardous waste, thereby subjecting it to LQG
standards.
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 November 28, 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 an adequate hazardous waste determination on spent
paint solvent that was placed in paint waste drums. This spent paint solvent was generated from
cleaning spray guns. Respondent failed
to determine the spent paint solvent was F003 and F005 listed hazardous waste
in addition to D001 characteristic hazardous waste.
On January 29, 2019, Respondent
submitted a Waste Management Plan to IDEM.
On February 19, 2019, Respondent submitted a revised Waste Management
Plan to IDEM.
b.
Pursuant to 40 CFR 268.7(a)(2), a generator
must send a one-time written notice to each treatment or storage facility
receiving the waste that includes the information indicated in the Generator
Paperwork Requirements Table in 40 CFR 268.7(a)(4). This Table requires EPA Hazardous Waste
Numbers and Manifest Number of the first shipment.
As noted during the inspection,
Respondent failed to include listed EPA Hazardous Waste Numbers, F003 and F005,
on the one-time written notice for spent paint solvent.
c. 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
based on volumes of hazardous waste generated.
Respondent operated at a minimum as a Small Quantity Generator (“SQG”) of
hazardous waste since 2016. Not until
April 18, 2018 did Respondent notify the Commissioner of its hazardous waste
generator activities and obtain and use an EPA Identification Number issued by
IDEM.
d.
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 Generator ID number in Box 1, and F003 and F005 waste codes
in addition to the D001 waste code for waste paint related material on
hazardous waste manifests #000955520WAS, #000904491WAS, #000912099WAS, #000894768WAS,
#000894103WAS, #000864581WAS, and #000863732WAS. Respondent did not include its Generator ID
number in Box 1 for hazardous waste manifest #000912374WAS.
e. 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 hazardous waste manifests as required. Respondent did not have the signed Designated
Facility to Generator copy for manifest #000760592WAS shipped on July 23, 2016
and manifest #000863732WAS shipped on March 12, 2018.
On January 23,
2019, IDEM received copies of the signed Designated Facility to Generator copy
for manifest #000760592WAS and manifest #000863732WAS.
f.
Pursuant to IC 13-22-4-3.1(b), a hazardous
waste SQG, i.e., a person that generates, in any one or more calendar months of
a calendar year:
a) more than one
hundred (100) kilograms but less than one thousand (1,000) kilograms of
hazardous waste;
b) less than one
(1) kilogram of acute hazardous waste; or
c) less than one
hundred (100) kilograms of material from the cleanup spillage of acute
hazardous waste; or
accumulates at least one thousand
(1,000) kilograms of hazardous waste or less than one (1) kilogram of acute
hazardous waste shall, before March 1 of each year, submit to the department on
forms provided by the department, a report that summarizes the person's
hazardous waste shipments during the previous calendar year.
Respondent notified IDEM of SQG
activities at the Site on April 18, 2018.
Respondent operated at a minimum as an SQG of hazardous waste since
2016. Based on a record review during
the inspection, Respondent had not submitted a 2016 Annual Manifest Report before
March 1, 2017 and a 2017 Annual Manifest Report before March 1, 2018.
On January 16, 2019, Respondent
submitted to IDEM a Hazardous Waste Handler Identification Form notifying of
LQG activities at the Site for 2018 and 2019.
On January 29, 2019, Respondent submitted to IDEM the 2016 and 2017
Annual Manifest Reports.
g.
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 hazardous waste
training which meets the RCRA requirements for LQGs.
h.
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,
Respondent did not have a contingency plan for this Site which meets the RCRA
requirements for LQGs.
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, Respondent shall
comply with 40 CFR 262.11. Specifically,
Respondent shall conduct proper waste determinations on all wastestreams
generated at the facility.
4.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.20(a) and 40 CFR 268.7(a)(2). Respondent shall not transport hazardous waste
for off-site treatment, storage, or disposal without preparing a manifest and a
one-time Land Disposal Notification Form and ensuring manifests and one-time
Land Disposal Notification Forms are fully filled out and contain accurate
information. Specifically, Respondent shall
include F003 and F005 listed Hazardous Waste numbers in addition to the D001
characteristic Hazardous Waste Number on all hazardous waste manifests and
one-time Land Disposal Notification Forms for waste paint related materials
that contain spent paint solvent.
5.
Within ninety (90) days of the Effective Date,
Respondent shall submit corrected copies of hazardous waste manifests #000955520WAS,
#000904491WAS, #000912099WAS, #000894768WAS, #000894103WAS, #000864581WAS, and
#000863732WAS to IDEM. The corrected
manifests shall show Respondent’s Generator ID Number in Box 1, and waste codes
F003 and F005 in addition to D001 for waste paint related materials that
contain spent paint solvent.
Additionally, Respondent shall submit a corrected copy of hazardous
waste manifest #00912374WAS that shows Respondent’s Generator ID Number in Box
1.
6.
If Respondent cannot submit corrected copies of
hazardous waste manifests within ninety (90) days of the Effective Date, Respondent
shall submit in writing a request for an extension at least fourteen (14) days
prior to the deadline date.
7.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.34(a)(4)
referencing 40 CFR 265.51. Specifically,
Respondent shall submit a copy of a contingency plan which meets the
requirements for LQGs to IDEM.
8.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.34(a)(4)
referencing 40 CFR 265.16(a), (b), & (c).
Specifically, Respondent shall submit copies of its hazardous waste
management personnel training records to IDEM.
9.
Respondent shall respond to any Notice of
Deficiency (“NOD”) issued by IDEM within the timeframes in the NOD. If such timeframes are not met, IDEM may
assess stipulated penalties as described in Order Paragraph 12.
10.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
|
Jennifer Reno, 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 Fourteen Thousand Six Hundred Dollars ($14,600). 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”.
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 |
|
|
|
|
Order
Paragraph 5 |
$100 per
week |
|
Order
Paragraph 7 |
$100 per
week |
|
Order
Paragraph 8 |
$100 per
week |
|
Order
Paragraph 9 |
$100 per
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.
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.
23.
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 RESPONDENT: |
||||
|
|
|
||||
|
|
|
||||
|
|
By:
________________________ |
||||
|
|
|
|
|||
|
|
|
||||
|
|
Date:
______________________ |
||||
|
|
|||||
|
APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
|||||
|
MANAGEMENT
THIS |
_______ |
DAY
OF |
________________________, |
20__. |
|
|
|
|||||
|
|
For the
Commissioner: |
||||
|
|
|
||||
|
|
Signed on
4/23/19______ |
||||
|
|
Peggy Dorsey |
||||
|
|
Assistant
Commissioner |
||||
|
|
Office of
Land Quality |
||||