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. 2019-26500-H
					)
BIG DOG ADHESIVES LLC,					)
					)
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 Big Dog Adhesives LLC (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (“EPA”) ID No. INR000007708, located at 615 South 4^th Street, in Elkhart, Elkhart 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:

Big Dog Adhesives LLC

Attn: Louis Giovannini, Manager and Registered Agent

15230 Longford Drive

Granger, IN 46530

5. Respondent notified EPA of Small Quantity Generator activities on August 2, 2018.

6. Big Dog Adhesives LLC manufactures methacrylate adhesives.

7. 329 Indiana Administrative Code (“IAC”) 3.1 incorporates 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 September 10, 2019 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 40 CFR 262.34(f), a generator who generates greater than 100 kilograms but less than 1000 kilograms of hazardous waste in a calendar month and who accumulates hazardous waste for more than 180 days is an operator of a storage facility and is subject to the requirements of 40 CFR Part 264 and the permit requirements of 40 CFR Part 270 unless he has been granted an extension to the 180 day period.

As noted during the inspection, Respondent stored eight (8) 55-gallon containers of F003/D001 hazardous waste on-site for greater than 180 days without complying with 40 CFR Part 264 and 40 CFR Part 270.

On January 24, 2020, Respondent provided hazardous waste manifest 013462156 FLE to IDEM, documenting the removal of eight (8) drums of F003/D001 from the site.

b. Pursuant to 40 CFR 270.1(c), a permit is required for the treatment, storage and disposal of any hazardous waste as identified or listed in 40 CFR Part 261.

As noted during the inspection, Respondent stored eight (8) 55-gallon containers of F003/D001 hazardous waste identified or listed in 40 CFR Part 261 without a permit.

c. Pursuant to IC 13-30-2-1(10), a person may not commence or engage in the operation of a hazardous waste facility without having first obtained a permit from the department.

As noted during the inspection, Respondent operated a hazardous waste facility without having first obtained a permit from the department when it accumulated and stored eight (8) 55-gallon containers of F003/D001 hazardous waste since August 2018.

d. Pursuant to 40 CFR 268.7(a), with the initial shipment of waste to each treatment, storage, or disposal facility, a generator must send a one-time written notice to each facility receiving the waste and place a copy in the file.

As noted during the inspection, Respondent failed to provide the one-time written notice and place a copy in the file.

Subsequent to the inspection, a copy of the LDR Notification Form was provided by email on September 11, 2019. The form did not contain all the required information as the manifest number was missing from the form.

On January 24, 2020, Respondent provided a completed LDR Notification Form.

e. 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, Respondent accumulated one (1) 55-gallon container of F003/D001 hazardous waste in the 180-day storage area without a permit and did not properly mark satellite accumulation containers with either the words “Hazardous Waste” or with other words describing the contents.

On January 24, 2020, Respondent provided photo documentation of the satellite accumulation container properly marked with either the words “Hazardous Waste.”

f. 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 F003/D001 in the 180-day storage area closed.

Respondent closed the one (1) 55-gallon container of F003/D001 in the 180-day storage area at the time of the inspection.

g. Pursuant to 40 CFR 262.34(d)(2) 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 inspection, Respondent failed to conduct weekly inspections of the 180-day storage area and the staging area.

h. 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 eight (8) 55-gallon containers in the staging area and one (1) 55-gallon container in the 180-day area with accumulation start dates.

On January 24, 2020, Respondent provided photo documentation of hazardous accumulation containers marked with accumulation start dates.

i. 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 eight (8) 55-gallon containers in the staging area and one (1) 55-gallon container in the 180-day area with the words "Hazardous Waste."

On January 24, 2020, Respondent provided photo documentation of hazardous waste containers properly marked with either the words “Hazardous Waste.”

j. Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR 265.35, a generator must maintain adequate aisle space to allow the unobstructed movement of personnel, fire protection, spill control, and decontamination equipment to any area of facility operation in an emergency.

As noted during the inspection, Respondent failed to provide the required aisle space in the staging area, where the back row of a group of eight (8) 55-gallons containers of hazardous waste were inaccessible because of their location and because unused product was stored on top of the hazardous waste.

On January 24, 2020, Respondent provided photo documentation of aisle space being maintained within the storage area.

k. 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 required emergency information next to the telephone.

On January 27, 2020, Respondent provided photo documentation of emergency information posted in areas directly involved in the generation and accumulation of hazardous waste.

l. 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 January 24, 2020, Respondent provided documentation of the employee training program.

m. Pursuant to 329 IAC 3.1-7-2, in addition to the requirements of 40 CFR 262.40, a generator shall keep the reports required by IC 13-22-4-3.1 on file for at least three (3) years after submission to the department.

As noted during the inspection, Respondent failed to maintain copies of the 2018 Annual Manifest Report.

Subsequent to the inspection, a copy of the 2018 Annual Manifest Report was provided by email on September 11, 2019. The form did not contain all the required components as the report lacked a Form OS.

On January 24, 2020, Respondent provided a completed 2018 Annual Manifest Report.

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 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 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) days of the Effective Date, Respondent shall not accumulate hazardous waste for more than 180 days unless an extension has been granted to the timeframe for as long as it remains a small quantity generator of hazardous waste.

4. Within thirty (30) days of the Effective Date, Respondent shall maintain Land Disposal Restriction Notification Forms on-site as required and ensure the forms are fully completed.

5. Within thirty (30) days of the Effective Date, Respondent shall mark all satellite containers with the words “Hazardous Waste” or other words to identify the contents.

6. Within thirty (30) days of the Effective Date, Respondent shall ensure that satellite accumulation containers holding hazardous waste are closed during storage, except when it is necessary to add or remove waste.

7. Within thirty (30) days of the Effective Date, Respondent shall ensure that at a minimum, weekly inspections of containers holding hazardous waste are completed looking for leaks and deterioration caused by corrosion or other factors.

8. Within thirty (30) days of the Effective Date, Respondent shall ensure that containers holding hazardous waste are clearly marked with accumulation start dates.

9. Within thirty (30) days of the Effective Date, Respondent shall ensure that containers holding hazardous waste are clearly labeled or marked with the words “Hazardous Waste.”

10. Within thirty (30) days of the Effective Date, Respondent shall ensure that adequate aisle space is maintained to allow the unobstructed movement of personnel, fire protection, spill control, and decontamination equipment to any area of facility operation in an emergency.

11. Within thirty (30) days of the Effective Date, Respondent shall maintain copies of the completed reports required by IC 13-22-4-3.1 on file for at least three (3) years after submission to the department.

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

Debbie Chesterson, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

13. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Zero Dollars ($0). This penalty reflects a significant reduction from the original proposed civil penalty based on evidence submitted to IDEM by Respondent which adequately demonstrated Respondent’s inability to pay the original proposed civil penalty.

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.

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 February 18, 2020
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality