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. 2019-26291-H
					)
BWI Indiana, Inc.,					)
					)
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. Respondents’ 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 BWI Indiana Inc. (“Respondent”), which owns and operates the facility with EPA ID No. INR000146530 located at 989 Opportunity Way in Greenfield, Hancock County, Indiana 46140 (“Site”).

3. Respondent notified the U.S. Environmental Protection Agency (U.S. EPA) of Large Quantity Generator activities.

4. IDEM has jurisdiction over the parties and the subject matter of this action.

5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via UPS to:

Thomas P. Gold, President

BWI Indiana Inc.

3100 Research Drive

Dayton, Ohio 45420

C T Corporation System

Registered Agent

150 West Market Street, Suite 800

Indianapolis, Indiana 46204

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 and a record review on May 28, 2019 conducted by a representative of IDEM, the following violations were found:

a. 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 May 28, 2019 inspection, Respondent did not close one (1) 2-cubic yard hopper of F006 filter cake hazardous waste in the Waste Water Treatment area.

Respondent corrected this violation on 5/31/2019.

b. 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 May 28, 2019 inspection and record review, Respondent failed to conduct weekly inspections of hazardous waste container storage areas.

c. Pursuant to 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 May 28, 2019 inspection, Respondent accumulated hazardous waste on-site, without a permit, and did not mark (1) 2-cubic yard hopper of F006 filter cake in the Waste Water Treatment area with an accumulation start date.

d. Pursuant to 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 May 28, 2019 inspection, Respondent accumulated hazardous waste on-site, without a permit, and did not label or clearly mark (1) 2-cubic yard hopper of F006 filter cake in the Waste Water Treatment area with the words “Hazardous Waste.”

e. Pursuant to 40 CFR 262.34(a)(4) and/or 40 CFR 265.51: A generator operator must have a contingency plan for the facility.

As noted during the May 28, 2019 inspection, Respondent did not have a contingency plan developed.

On September 24, 2019, Respondent submitted a written contingency plan to IDEM.

f. 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 May 28, 2019 inspection, Respondent did not provide employees with initial hazardous waste training.

On September 24, 2019, Responndent submitted to IDEM documents indicating the required training has been provided to employees.

g. 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 May 28, 2019 inspection, Respondent accumulated hazardous waste in containers at or near the point of generation without a permit and did not properly mark satellite accumulation containers with either the words “Hazardous Waste” or with other words describing the contents.

This violation was corrected during the inspection.

h. 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 May 28, 2019 inspection, Respondent had one (1) 5-gallon plastic container of hazardous waste stored without a lid in the Chemical Laboratory.

This violation was corrected during the inspection.

i. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265 Subpart J: Tank General Requirements; Except as provided in paragraphs (d), (e) and (f) of this section, a generator may accumulate hazardous waste on site for 90 days or less without a permit or without having interim status provided that the waste is placed in tanks and the generator complies with the applicable requirements of subparts J, AA, BB, and CC of 40 CFR part 265 except §§265.197(c) and 265;

As noted during the May 28, 2019 inspection, the Respondent’s Waste Water Treatment system malfunctioned during the initial start of operating. This malfunction resulted in three shipments of F006 Hazardous Waste Sludge, equaling 8,500 gallons, to be pumped from the T1 and Clarifying Tanks in February – March 2019 to an outside waste treatment facility. This activity made these tanks subject to Subpart J.

8. Effective December 26, 2019, IDEM’s Hazardous Waste Updates final rule (LSA Document #18-481) amended 329 IAC 3.1, 329 IAC 10, 329 IAC 11, and 329 IAC 13 in response to the United States Environmental Protection Agency’s Hazardous Waste Generator Improvements Rule, 81 Fed. Reg. 85732 (Nov. 28, 2016).  As a result, the requirements that apply to Respondent(s) from the date forward might differ from the requirements that applied at the time of the alleged violations cited above.

9. 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 and rules listed in the findings of fact above.

3. Upon the Effective Date, Respondent shall cease to utilize the wastewater treatment containers T1 and Clarifying tanks as hazardous waste storage.

4. Upon the Effective Date, Respondent shall develop a training program for applicable employees as required by Respondent’s generator status and 40 CFR 262.

5. Within thirty (30) days of the Effective Date, Respondent shall ensure hazardous waste containers are covered/closed and that weekly inspections of hazardous waste area are performed and documented.

6. Within thirty (30) days of the Effective Date, Respondent shall ensure containers are labeled or marked as required by 40 CFR 262.17(a)(5).

7. All submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent to:

Linda McClure, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

8. Pursuant to IC 13-30-4-1, 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 thirtieth day being the “Due Date.”

9. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay stipulated penalties in the following amounts:

Paragraph	Stipulated Penalty
5 and 6	$100.00 per week

10. Stipulated penalties shall be due and payable no later than the thirtieth day after Respondent receive written notice that Complainant has determined a stipulated penalty is due; the thirtieth 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 a 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.

11. 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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

12. 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 11 above.

13. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

14. This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

15. No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

16. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of 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. 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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

19. 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.

20. 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 violations specified in the NOV.

21. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 the U.S. EPA or any other agency or entity.

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: _________________________
	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 April 9, 2020
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality