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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. 2019-26351-H |
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AMERICAN
LICORICE CO., |
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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 American Licorice Co.
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. IND005440383, located at 1900
Whirlpool Drive, in La Porte, La Porte 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”) via Certified Mail to:
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American
Licorice Co. |
Tim
Walsh, Registered Agent for |
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Attn:
John R. Kretchmer, CEO |
American
Licorice Co. |
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1914
Happiness Way |
1914
Happiness Way |
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La
Porte, IN 46350 |
La
Porte, IN 46350 |
5.
Respondent notified EPA of Conditionally Exempt
Small Quantity Generator activities.
6.
American Licorice Co. manufactures Sour Punch®
candies.
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 July 15, 2019, conducted by a
representative of IDEM, the following violations were found:
a. 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 a status change to hazardous
waste generator activities. Respondent
changed generator status from a conditionally exempt small quantity generator
of hazardous waste to a small quantity generator of hazardous waste during the
years 2017, 2018, and 2019.
On October 22, 2019, Respondent
submitted the notifications of a change to hazardous waste generator
activities.
b.
Pursuant
to IC 13-22-4-3.1(b), a hazardous waste small quantity generator (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
changed generator status from a conditionally exempt small quantity generator
of hazardous waste to a small quantity generator of hazardous waste during the
years 2017, 2018, and 2019. Respondent failed to submit a 2017 and 2018 annual
manifest report.
On October 22, 2019, Respondent
submitted the 2017 and 2018 annual manifest reports.
c.
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 satellite accumulation containers
that were not under the control of the operator of the process generating the
waste when it stored one (1) 55-gallon container of D001 in an unlocked, open
cage next to the Innovations Lab.
On October 22, 2019, Respondent
submitted documentation that the satellite accumulation container is no longer
utilized and has been removed from this area.
d.
Pursuant
to 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 one (1) 55-gallon container of D001 in a cage next to
the Innovations Lab closed.
On October 22, 2019, Respondent
submitted documentation that the satellite accumulation container is no longer
utilized and has been removed from this area.
e.
Pursuant
to 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 one (1) 55-gallon container of D001 ignitable
flavorings closed.
On October 22, 2019, Respondent
submitted photo documentation of hazardous waste containers stored closed.
f.
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 two (2) five-gallon containers of D001 located in the warehouse
and two (2) 55-gallon container of D001 located in the hazardous waste storage
area with accumulation start dates.
On October 22, 2019, Respondent
submitted photo documentation of hazardous waste containers marked with the
accumulation start date.
g.
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 two (2) five-gallon containers of D001
located in the warehouse and two (2) 55-gallon container of D001 located in the
hazardous waste storage area with the words "Hazardous Waste."
On October 22, 2019, Respondent
submitted photo documentation of hazardous waste containers labeled as
“Hazardous Waste.”
h.
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. (C) The telephone number of the
fire department, unless the facility has a direct alarm.
As noted during the inspection,
Respondent failed to post the location of the fire extinguishers and spill
control equipment next to the telephone.
On October 29, 2019, Respondent provided
photo documentation of the locations of the fire extinguishers and spill
control equipment posted next to the telephone.
i. 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 failed to ensure that all employees are
thoroughly familiar with proper waste handling and emergency procedures,
relevant to their responsibilities during normal facility operations.
On October
22, 2019, Respondent provided documentation of employee training.
j.
Pursuant
to 329 IAC 13-4-3(d), generators must label all used oil containers and
aboveground tanks with the words “Used Oil.”
As noted during the inspection,
Respondent did not label four (4) five-gallon containers of used oil with the
words “Used Oil.”
On October 22, 2019, Respondent
submitted photo documentation of used oil containers labeled as “Used Oil.”
k. Pursuant to 40 CFR 273.13, a universal
waste handler must contain wastes in containers that are in good condition,
compatible with the waste, closed, and lack evidence of leakage.
As noted during the inspection,
Respondent did not containerize universal waste batteries. Additionally,
Respondent did not store two (2) boxes of universal waste lamps closed.
On October 22, 2019, Respondent submitted
photo documentation of universal waste containerized and labeled as “Universal
Waste.”
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 of the Agreed Order,
Respondent shall comply with 40 CFR 262.34(c)(1). Specifically, Respondent shall ensure that satellite
accumulation containers are at or near the point of generation and under the
control of the operator of the process generating the waste.
4.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a). Specifically, Respondent shall ensure that
satellite accumulation containers holding hazardous waste are closed during
storage, except when it is necessary to add or remove waste.
5.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.34(d)(2)
referencing 40 CFR 265.173(a).
Specifically, Respondent shall ensure that containers holding hazardous
waste are closed during storage, except when it is necessary to add or remove
waste.
6.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.34(d)(4)
referencing 40 CFR 262.34(a)(2).
Specifically, Respondent shall ensure that containers holding hazardous
waste are clearly marked with accumulation start dates.
7.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.34(d)(4)
referencing 40 CFR 262.34(a)(3).
Specifically, Respondent shall ensure that containers holding hazardous
waste are clearly labeled or marked with the words “Hazardous Waste.”
8.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.34(d)(5)(ii). Specifically, Respondent shall ensure the
required emergency information is posted next to the telephone.
9.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 329 IAC 13-4-3(d).
Specifically, Respondent shall ensure that all used oil containers and
aboveground tanks are labeled with the words “Used Oil.”
10.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 273.13.
Specifically, Respondent shall ensure that all universal waste is
properly containerized and stored closed.
11.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise
in writing, shall be sent to:
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Debbie
Chesterson, Enforcement Case Manager |
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Office
of Land Quality |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
12.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Four
Thousand Four Hundred Dollars ($4,400). 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.”
13.
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:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
14.
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 13, above.
15.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
16.
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.
17.
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.
18.
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.
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.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
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 violations
specified in the NOV.
23.
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.
24.
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
McClure, Section Chief |
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Enforcement
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Printed: ______________________ |
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Office of
Land Quality |
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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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APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS |
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________________________, 20_____. |
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For the Commissioner: |
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Signed 11/19/19 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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