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. 2019-26395-H
					)
THE BEDDER WAY COMPANY, 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. 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 The Bedder Way Company, Inc. (“Respondent”), which owns/operates the facility located at 3450 Developers Road, in Indianapolis, Marion 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 via Certified Mail to:

The Bedder Way Company, Inc.

Mr. Donald Christopher Kosten, President and Registered Agent

3450 Developers Road

Indianapolis, Indiana 46227

5. Respondent manufactures murphy wall beds from plywood. The plywood is cut by machine, sanded, painted, and assembled in house. Hazardous waste generated includes waste paint thinner and paint residue from flushing the paint lines in the paint finishing process.

6. Respondent has not notified the U.S. EPA of hazardous waste activities.

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 a records review on August 5, 2019 conducted by a representative of IDEM, the following violations were found:

a. 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.

As noted during the inspection, Respondent generated thirty (30) gallons of hazardous waste every month from 2017 to present. Respondent failed to notify the Commissioner of hazardous waste activities, and did not submit an annual report.

Respondent has submitted the annual manifest report for 2017 and 2018.

b. 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 activities and obtain and use identification numbers issued by IDEM.

As noted during the inspection, Respondent failed to notify the Commissioner of hazardous waste activities and to obtain and use identification numbers issued by IDEM. Specifically, Respondent generates thirty (30) gallons of waste paint thinner (Thinner 419 Haps Free) and paint residue (D001, F003, F005, D035) every month.

Respondent has been issued EPA ID #INR000147637 on October 1, 2019.

c. 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, three (3) 5-gallon satellite containers of hazardous waste (D001, F003, F005, D035) in the paint area were not marked with either the words "Hazardous Waste" or with other words describing the contents.

Respondent has added the words “Hazardous Waste” to the labels on the satellite containers in the paint area.

d. Pursuant to 40 CFR 262.34(d)(5)(i), at all times there must be at least one employee on the premises or on call (i.e. available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures specified. This employee is the emergency coordinator.

As noted during the inspection, an emergency coordinator had not been appointed for the facility. An in-house list of employee phone numbers were posted next to the telephone.

Respondent has appointed an emergency coordinator and backup coordinator for the facility.

e. Pursuant to 40 CFR 262.34(d)(5)(ii), the generator must post the following information next to the telephone: (1) The name and phone number of the emergency coordinator. (2) Location of fire extinguishers and spill control material, and, if present, fire alarm. (3) The telephone number of the fire department, unless the facility has a direct alarm.

As noted during the inspection, Respondent did not have the required emergency information posted next to the telephone.

Respondent has posted the required emergency information next to the telephone in the finishing department.

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. Within thirty-five (35) days of the Effective Date, Respondent shall comply with 329 IAC 3.1-1-10. Specifically, Respondent shall complete and submit to IDEM the annual manifest report for 2018.

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

Jodi Pisula, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

5. Respondent is assessed a civil penalty of Nine Thousand Dollars ($9,000.00). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Five Thousand Seven Hundred Seventy-Eight Dollars ($5,778.00). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” in six (6) consecutive monthly payments of Nine Hundred Sixty Three Dollars ($963.00). The first monthly payment is due within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.”

In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (“SEP”). Respondent estimates that this SEP will cost Three Thousand Two Hundred Twenty-One Dollars and Fifty Cents ($3,221.50). Within Fifteen (15) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than Three Thousand Two Hundred Twenty-One Dollars and Fifty Cents ($3,221.50), Respondent shall pay Fifty percent (50%) of the difference between the proposed cost of the SEP and the actual cost of the SEP.

6. As a Supplemental Environmental Project, Respondent shall purchase a Sidewinder Solvent Recovery Model M-2, solvent recovery machine, for waste paint thinner and paint residue. Respondent estimates 80-90% reduction in waste generated, and reusable solvent to be 60-70%. Respondent shall commence operating the solvent recovery no later than December 31, 2019. Implementation of this SEP will reduce the amount of waste paint thinner and pain residue generated by Respondent, and will also decrease the amount of hazardous waste needing disposed.

7. In the event that Respondent does not complete the SEP by October 31, 2020, the full amount of the civil penalty as stated in paragraph #5 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

8. 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
Order paragraph #3	$100.00 per week

9. Stipulated penalties shall be due and payable no later than the thirtieth day after Respondent receives 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.

10. 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

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

13. 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.

14. 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.

15. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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, 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 11/19/19
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality