STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT ) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
) CAUSE NO. 2000-9053-H
v. )
)
DEPAUW UNIVERSITY )
)
Respondent. )
AGREED ORDER
The Complainant and the 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 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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is DePauw University (hereinafter referred to as "Respondent"), located at 801 South Jackson Street, Greencastle, in Putnam County, Indiana.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
Robert Bottoms, President Thomas E. Dixon
DePauw University Registered Agent
313 South Locust Street 313 South Locust Street
Greencastle, Indiana 46135 Greencastle, Indiana 46135
5. Respondent operates a four-year university. Respondent generates hazardous wastes and used oil from vehicle and building maintenance activities. Respondent also generates hazardous waste from laboratory activities in the Julian Science Building. Respondent notified as a Conditionally Exempt Small Quantity Generator on May 6, 1991. Respondent operates with the U.S. EPA identification number IND 984 896 969.
6. Respondent was inspected on January 25 and February 10, 2000, by Mr. Roger Wilson of the Office of Land Quality (hereinafter referred to as "OLQ"). Based on this investigation, IDEM contends the following violations were in existence or observed at the time of these inspections:
a. 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, unless necessary to add or remove waste. Based on information gathered by IDEM, Respondent did not store a 55-gallon satellite container of waste paint (F003/F005/D001) closed.
b. Pursuant to 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that the date when the accumulation begins is clearly marked and visible for inspection on each container. Based on information gathered by IDEM, Respondent did not mark one (1) 30-gallon container of paint waste (F003/F005/D001) located outside and near the south side of the physical plant with the accumulation start date.
c. Pursuant to 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that the containers are marked with the words "Hazardous Waste." Based on information gathered by IDEM, Respondent did not label one (1) 30-gallon container of paint waste (F003/F005/D001) located outside and near the south side of the physical plant with the words "Hazardous Waste."
d. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.51, a generator must have a contingency plan. Based on information gathered by IDEM, Respondent did not have a contingency plan.
e. Pursuant to 40 CFR 262.34 (a)(4) referencing 40 CFR 265.16(a), (b), & (c), facility personnel must complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in compliance with the hazardous waste management rules. Employees must be trained within six months after their date of hire and must take part in an annual review of the initial training. Based on information gathered by IDEM, Respondent did not provide employees with annual training.
f. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(1-4), certain hazardous waste training related documents and records must be maintained on-site. Based on information gathered by IDEM, Respondent did not maintain all of the required information on-site.
7. In recognition of the settlement reached, Respondent 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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. Upon the Effective Date of this Agreed Order, Respondent shall:
a. Ensure that all hazardous waste containers are stored closed, except when it is necessary to add or remove waste pursuant to 40 CFR 265.173(a).
b. Ensure that all hazardous waste containers in less than ninety (90) day accumulation areas are marked with accumulation start dates and labeled with the words "Hazardous Waste" pursuant to 40 CFR 262.34(a)(2) and (3).
c. Comply with all Large Quantity Generator requirements during the year 2000 pursuant to 40 CFR 262.34(a). Thereafter, Respondent may re-assess its generator status and must comply with the requirements applicable to Respondent’s generator status.
3. Within forty-five (45) days of the Effective Date of the Order, Respondent shall:
a. Notify IDEM of any change in generator status to a Large Quantity Generator.
b. Ensure that all hazardous waste personnel receive the required training as specified in 40 CFR 265.16.
c. Develop a contingency plan as required by 40 CFR 265.51, which includes the requirements in 40 CFR 265.52.
4. Within sixty (60) days of the Effective Date of the Order, Respondent shall:
a. Submit copies of the hazardous waste personnel training records to IDEM.
b. Submit a copy of the contingency plan to IDEM for review.
5. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Jennifer Reno, Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
6. All submittals required by this Agreed Order shall contain the following certification:
"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based upon my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."
7. Respondent is assessed a civil penalty of Five Thousand Seven Hundred Dollars ($5,700). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of One Thousand One Hundred Forty Dollars ($1,140). Said penalty amount shall be due and payable to the Environmental Management Special Fund. 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 at a minimum Nine Thousand One Hundred Twenty Dollars ($9,120). 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 $9,120, Respondent shall pay 50% of the difference between the minimum proposed cost of the SEP ($9,120) and the actual cost of the SEP.
As a Supplemental Environmental Project, Respondent shall purchase an Argus 2 Thermal Imaging Camera for the Greencastle Fire Department. Respondent shall purchase and deliver the Argus 2 Thermal Imagining Camera to the Greencastle Fire Department no later than six (6) weeks after the Effective Date of this Agreed Order. Implementation of this SEP will aid firefighters in locating victims and/or hot spots during hazardous material incidents.
In the event that the Respondent does not complete the SEP by six (6) weeks after the Effective Date of this Agreed Order, the full amount of the civil penalty as stated in this paragraph, plus interest established by IC 24-4.6-101 on the remaining amount, less than 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 following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation
PenaltyFailure to comply with $1,000/day
Orders #3a, 3b, 4a, and 4b
9. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice and the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent=s violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4-1.
10. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:
Cashier
IDEM
100 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
11. In the event that the civil penalty required by paragraph 7 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the
unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.
12. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.
13. 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 the Agreed Order did not contain the invalid terms.
14. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
15. This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause letter to Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By:___________________________ By:_____________________
Nancy L. Johnston, Chief
Hazardous Waste Section Printed:__________________
Office of Enforcement
Title:____________________
Date:_________________________ Date:____________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:________________________ By:______________________
Office of Legal Counsel
Date:________________________ Date:____________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF ________________, 2000.
For the Commissioner:
__Signed on 11/2/00____
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement