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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
MARION |
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ENVIRONMENTAL
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2019-26427-H |
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Dermatology of Indiana, |
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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 Dermatology of Indiana
(“Respondent”), which owns/operates the facility located at 824 Edwards Drive
Suite 100, in Plainfield, Hendricks 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”) to:
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Dermatology
of Indiana |
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Attn:
Diana Harrington |
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824
Edwards Drive Suite 100 |
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Plainfield,
IN 46168 |
5.
Respondent has not notified EPA of Small
Quantity Generator activities.
6.
Respondent’s business is a private practice
which offers a variety of medical, surgical, and cosmetic services.
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 30, 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 hazardous waste generator
activities. Specifically, Respondent
generated small quantities of hazardous waste during the months of February,
March, April, and July of 2019.
b.
Pursuant
to 40 CFR 262.23(a)(3) referencing 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. Specifically, Respondent did not have copies
of two uniform hazardous waste manifest on site during the inspection. Manifest tracking numbers 010532650 FLE and
010528844 FLE were not available for review during the inspection. The manifests were provided by the designated
facility after the inspection.
c.
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 hazardous waste containers with accumulation start dates. Specifically,
Respondent had five (5) 5-gallon containers of spent ethanol/isopropanol (D001)
and two (2) 5-gallon containers of spent Formaldehyde (U122) hazardous waste
with no start of accumulation dates.
This violation was corrected during the inspection.
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, Respondent failed to have at least one employee on the
premises or on call with the responsibility for coordinating all emergency
response measures.
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 failed to post the required information.
9.
Respondent
submitted a response via email on January 13, 2020 addressing the above
violations. An inspection shall be conducted
to verify compliance.
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 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 (30) the Effective Date,
Respondent shall comply with 329 IAC 3.1-1-10.
Specifically, Respondent shall notify the commissioner of its hazardous
waste activities on the approved forms.
4.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.23(a)(3) referencing 40 CFR
262.40(a). Specifically, Respondent shall ensure copies of all hazardous waste
manifest are retained onsite for a period of three (3) years from the date of
receipt of the hazardous waste manifest from the designated facility.
5.
Upon the Effective Date, the Respondent shall
comply with 40 CFR 262.34(d)(4) referencing 40 CFR
262.34(a)(2). Specifically, Respondent
shall ensure less than 180 day accumulation containers are marked clearly with
the start of accumulation date and the date is visible for inspections.
6.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(d)(5)(i).
Specifically, Respondent shall have at least one employee on the premises or on
call with the responsibility for coordinating all emergency response measures.
7.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.34(d))(5)(ii). Specifically, Respondent shall submit to IDEM
a photograph of the emergency information posted next to the telephone.
8.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise
in writing, shall be sent to:
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Christina
Halloran, 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 |
9.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Ten
Thousand Two Hundred Dollars ($10,200). 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.”
10.
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:
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Paragraph |
Stipulated
Penalty |
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Order
paragraph # 3 |
$100
per / week |
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Order
paragraph # |
$100
per / week |
11.
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.
12.
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:
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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 |
13.
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 12, above.
14.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
15.
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.
16.
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.
17.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
18.
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.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
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 violations
specified in the NOV.
22.
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.
23.
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
3/25/20______ |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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