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. 2019-26424-H
					)
John Neace d.b.a. Blue Cabinetry,					)
					)
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 John Neace d.b.a. Blue Cabinetry (“Respondent”), who owns and operates the facility with United States Environmental Protection Agency (“EPA”) ID No. INR000141978, located at 2235 Corydon Pike in New Albany, Floyd 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 UPS to:

John Neace	John Neace
Blue River Cabinetry	Blue River Cabinetry
1419 East Market Street	2235 Corydon Pike
New Albany, Indiana 47562	New Albany, Indiana 47150

5. 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.

6. Respondent notified EPA of Small Quantity Generator activities on February 4, 2016.

7. During an investigation including an inspection on July 30, 2019 conducted by an IDEM representative, 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 activities subject to this article on forms provided by the commissioner unless the activity is exempt from the notification requirements for hazardous waste generated by conditionally exempt small quantity generators under 329 IAC 3.1-6.

As noted during the July 30, 2019 inspection, Respondent failed to notify as a Small Quantity Generator (SQG) in 2017 and 2018.

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.

As noted during the July 30, 2019 inspection, Respondent was operating as a SQG of hazardous waste for at least one (1) calendar month from 2017-2019 and failed to submit an Annual Manifest report summarizing the hazardous waste shipments for those years.

c. 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 Treatment, Storage, and Disposal (TSD) facility.

As noted during the July 30, 2019 inspection, no manifests were available at Respondent’s site.

d. Pursuant to 40 CFR 262.34(d)(4), a generator may accumulate hazardous waste onsite for 180 days or less without a permit provided that, while being accumulated on site, each container and tank is labeled and marked clearly with the words “Hazardous Waste” and the date when the accumulation begins.

As noted during the July 30, 2019 inspection, Respondent had five (5) 55-gallon containers of Waste Paint Related Material (D001 and D035) on the site (three (3) containers in the Paint Area and two (2) containers in the Outside Area). Four (4) of the containers were not properly labeled and one (1) container had an incorrect accumulation date of 3/9/10).

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 July 30, 2019 inspection, Respondent did not have the emergency information posted in the site.

8. On January 2, 2020, Respondent confirmed business is closed and all waste has been removed and properly disposed. IDEM is in receipt of the proper disposal documentation.

9. 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 now apply to Respondent(s) might differ from the requirements that applied at the time of the alleged violations cited above.

10. 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 waive 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 or within Forty-Five (45) Days, IDEM will conduct an Enforcement Follow-up Inspection (“EFI”) to confirm that Waste Paint Related Material been removed from the Site.

4. If required, within thirty (30) days of the EFI, Respondent shall submit to IDEM a remaining inventory of the Waste Paint Related Material (D001 and D035) with the proper waste determinations and waste codes.

5. If required, within fifteen (15) days of the hazardous waste shipment date, Respondent shall submit to IDEM hazardous waste manifests for any remaining Waste Paint Related Material (D001, D035) containers that were shipped offsite for proper disposal.

6. All submittals required by this Agreed Order, unless IDEM notifies 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

7. 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.”

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:

Paragraphs	Stipulated Penalty
3	$100.00 per year
4	$100.00 per year
5	$100.00 per year

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 11 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 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 3/2/20______
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality