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STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. GENERAL
MOTORS CORPORATION, Respondent. |
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2004-13917-H |
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The
Complainant and the Respondent desire to settle and compromise these actions,
and the action described in Finding of Fact Paragraph No.10 below, 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 Ind. Code § IC 13-30-3-3, entry into the terms of this
Agreed Order does not constitute an admission of any violation. 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 Agreed Order.
1. Complainant
is the Commissioner (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 General Motors Corporation (Respondent), which owns and operates the vehicle
assembly facility with U.S. EPA ID No. IND 115304594, located at 12200
Lafayette Center Road, in Roanoke, Allen
County, Indiana (Site). Respondent first
notified the U.S. EPA of Large Quantity Generator activities at the Site on
June 4, 1986.
3. The
Indiana Department of Environmental Management (IDEM) has jurisdiction over the
parties and the subject matter of this action.
4. The
following terms shall have the following meanings when used in this Agreed
Order:
A. “Purge
Solvent” shall mean the solvent used to clean the paint applicators, lines and
equipment at Respondent’s vehicle assembly facility located at the Site.
B. “Purge
Mixture” shall mean the mixture of paint and Purge Solvent that exits the
paints applicators in the paint booths at Respondent’s vehicle assembly
facility located at the Site.
5. Pursuant
to IC 13-30-3-3, on or about June 6, 2000, IDEM issued to Respondent a Notice
of Violation, designated as Case No. 2000-9096-H, via Certified Mail, addressed
as follows:
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CT
Corporation System |
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General
Motors Corporation |
Registered
Agent |
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3044
West Grand Boulevard |
One
North Capitol |
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Detroit,
Michigan 48202 |
Indianapolis,
Indiana 46204 |
Respondent received the Notice of Violation on or about June 12, 2000.
6. On
April 28, 1999, May 6, 1999, and February 17, 2000, IDEM conducted inspections
at the Site. IDEM
cited the following violations of hazardous waste
management requirements found in various provisions of the Code of Federal
Regulations, which are incorporated into 329 IAC 3.1, at the time of these
inspections, and which were included in the Notice of Violation issued in Case
No. 2000-9096-H:
A. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.202, a generator must manage
all hazardous waste placed in a tank in accordance with the applicable
requirements of 40 CFR 265 Subparts AA, BB, and CC. Respondent did not comply with requirements
of Subpart BB, specifically including equipment monitoring, record-keeping, and
equipment marking requirements.
B. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.1085(c), a generator
controlling air pollutant emissions from a tank using Level 1 controls shall
meet the inspection requirements specified in paragraphs (c)(1) through (c)(4).
Respondent did not conduct initial and annual inspections on the two (2) 18,900-gallon hazardous waste tanks,
designated as Tanks 19 and 20, located outside of the vehicle assembly
buildings at the Site.
C. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.1090, a generator must record
and maintain initial and annual tank inspection information as applicable to
the facility. Respondent failed to
record and maintain the inspection information for the two (2) 18,900-gallon hazardous waste tanks, designated as Tanks 19 and
20, located outside of the vehicle assembly buildings at the Site.
D. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.193, all ancillary equipment
must be provided with full secondary containment. Respondent did not provide secondary
containment for a valve and threaded connections associated with the paint room
tank.
E. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.192(a), a generator with a
new tank system must have an integrity assessment certified by an independent,
qualified, registered, professional engineer in accordance with 40 CFR
270.11(d) attesting that the system has sufficient structural integrity.
Respondent did not provide the required integrity assessment for the following
equipment: pipes from the eleven (11)
MODs to the twelve (12) purge pots, the purge pots, pipes
from the purge pots to Tank 19, the paint room tank, and pipes from the paint
room tank to Tanks 19 and 20.
7. IDEM
offered Respondent an opportunity to resolve the violations
cited in the aforementioned Notice of Violation through an Agreed Order. Respondent declined to do so, based on its
belief that, contrary to IDEM’s view, the aforementioned hazardous waste
management requirements are not applicable to its Purge Mixture management
system. Specifically, Respondent
contends that the Purge Mixture is never a solid waste or a hazardous waste
while at the Site, or alternatively, that the first place that the Purge
Mixture is a solid and hazardous waste is when it enters Tank 19 and 20.
8. Accordingly,
on or about November 17, 2000, IDEM issued a unilateral Notice and Order of the
Commissioner (Commissioner’s Order) to Respondent for the violations cited in
the aforementioned Notice of Violation.
Respondent appealed the Commissioner’s Order by filing a petition for administrative
review with the Indiana Office of Environmental Adjudication (OEA). Respondent’s appeal is designated as OEA
Cause No. 00-S-E-2618.
9. Subsequent
to the filing by IDEM of a Motion for Partial Summary Judgment, and the filing
by Respondent of a Motion for Summary Judgment, in OEA Cause No. 00-S-E-2618, Environmental Law Judge Gibbs issued Findings of Fact, Conclusions of Law, and Order on September 17, 2004 (the “Non-final Order”). As provided in Order
Paragraph No. 2 below, IDEM and Respondent agree the
Non-final Order is not a final order subject to appeal. As a result of entering into this Agreed
Order, the parties agree to dismiss the pending OEA proceedings (Cause Nos.
00-S-E-2618 and 04-S-E-3325) and thereby forego their respective rights to
obtain a final resolution of these issues in further proceedings.
10. On or
about February 28, 2003, Respondent filed a variance request, requesting that
IDEM determine that Respondent’s building at the Site constitutes “adequate
secondary containment” pursuant to 40 C.F.R. § 265.193(g) as incorporated by
reference into 329 IAC 3.1-10. On March
30, 2004, IDEM denied Respondent’s variance request. Respondent filed an appeal of IDEM’s denial
of its variance request with OEA, which is designated as OEA Cause No.
04-S-E-3325.
11. Pursuant
to IC 13-30-3-3, on or about July 1, 2004, IDEM issued to Respondent a Notice
of Violation, designated as Case No. 2004-13917-H, via Certified Mail,
addressed as follows:
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CT
Corporation System, |
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Registered
Agent |
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36
South Pennsylvania St., Suite 700 |
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Indianapolis,
Indiana 46204 |
Respondent received the
Notice of Violation on or about July 8, 2004.
12. On March
4, 2004, IDEM conducted an inspection at the Site. IDEM cited the following violations of hazardous waste management
requirements found in various provisions of the Code of Federal Regulations,
which are incorporated into 329 IAC 3.1, at the time of this
inspection, and which were included in the Notice of Violation issued in Case
No. 2004-13917-H:
A. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.1050(c), each piece of
equipment to which air emission standards apply shall be marked in such a
manner that it can be readily distinguished from other pieces of
equipment. Respondent had not marked all
regulated ancillary equipment to hazardous waste Tank 19, including pumps,
valves, flanges, and other connectors, in such a manner that they can be
readily distinguished from other pieces of equipment. Specifically, Respondent had not marked
equipment from the paint mod applicators, where waste is first generated,
downstream to the point where the system pipes exit the production building.
B. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.1052(a)(1), each pump in
light liquid service shall be monitored monthly to detect leaks. Respondent had not monitored the mix room
clean-out pump or pumps associated with the purge pots.
C. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.1052(b)(1), and (c)(1), for
pumps in light liquid service, if an instrument reading of 10,000 ppm or
greater is measured, a leak is detected and when a leak is detected, it shall
be repaired as soon as practicable, but not later than 15 days after it has
been detected.
Respondent had pumps in light liquid service which were
leaking. IDEM inspectors measured leaks
of greater than 10,000 ppm at purge pot pumps 1, 5, and 6 and Respondent did
not repair the leaks as soon as practicable.
D. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.1052(a)(2), (b)(2), and
(c)(1), each pump in light liquid service shall be checked by visual inspection
each calendar week for indications of liquids dripping from the pump seal. If there are indications of liquids dripping
from the pump seal, a leak is detected.
When a leak is detected, it shall be repaired as soon as practicable,
but not later than 15 days after it has been detected. Respondent failed to
conduct visual inspections of the purge pot pumps as required. Numerous pumps associated with the purge pots
had liquid waste purge dripping from the seals.
E. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.1056, each open-ended valve
or line shall be equipped with a cap, blind flange, plug, or a second valve,
and be operated in accordance with the provisions of this part. Respondent did not equip each open-ended
valve or line as required. Specifically,
the line on the mix room system clean-out pump was not capped.
F. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.1057, each valve in light
liquid service shall be monitored monthly to detect leaks. Respondent did not monitor valves in light
liquid service as required.
Specifically, Respondent did not monitor valves included in the
ancillary equipment from the paint mod applicators downstream to the point
where the transport pipes exit the production building.
G. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.1064, each generator subject
to the provisions of this subpart shall comply with the recordkeeping
requirements of this section. Respondent
did not comply with the recordkeeping requirements for each piece of equipment,
including an ID number, location, equipment type, waste stream information, and
method of compliance including monitoring frequency.
H. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.192, a generator with a new
tank system must have a written integrity assessment certified by an
independent, qualified, registered, professional engineer in accordance with 40
CFR 270.11(d) attesting that the system has sufficient structural integrity and
is acceptable for the storing and treating of hazardous waste. Respondent did not provide the required integrity
assessment for all ancillary equipment of hazardous waste Tank 19.
I. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.193(b)(2), secondary
containment systems must be capable of detecting and collecting releases and
accumulated liquids until the collected material is removed. Respondent's
secondary containment system was not capable of detecting and collecting
releases and accumulated liquids.
Specifically, purge pot #1 had a hole in the bottom and there was
evidence of released material around the purge pot due to this opening.
J. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.193(f), ancillary equipment
must be provided with full secondary containment, except for above ground
piping, welded flanges, welded joints, and welded connections that are visually
inspected for leaks on a daily basis.
Respondent did not provide secondary containment for ancillary equipment
to hazardous waste Tank 19 and was not conducting daily inspections. Respondent's representative indicated that
the area around the purge pots is only inspected every 7 days and that the area
is subject to routine spills. At the
time of the inspection there was spillage noted from ongoing operations.
K. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.194(b), a generator must use
appropriate controls and practices to prevent spills and overflows from tank or
secondary containment systems.
Respondent did not use appropriate controls and practices to prevent
spills and overflows from tank or secondary containment systems. Specifically, there was evidence of spills
and overflows from a conservation vent and fill port on the outside hazardous
waste tank.
L. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.195, a generator must conduct
and document inspections of tank systems once each operating day. Respondent did not conduct or document the
required inspections. Specifically,
there was material in secondary containment and evidence of spills which
indicated that adequate daily inspections were not being conducted. Also, inspections were not documented for
ancillary equipment located inside the production building.
M. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.196(b), spilled or leaked
waste from a tank system or secondary containment system must be removed within
24 hours or in as timely a manner as possible to prevent harm to human health
and the environment. Respondent did not
remove spilled or leaked waste within 24 hours or in as
timely a manner as possible to prevent harm to human health and the
environment. Specifically, the tray
serving as secondary containment for the clean-out pump in the paint mix room
had liquids in it and was routinely allowed to accumulate liquids without removing
them as required. Respondent's representative
indicated that liquid was removed weekly.
13. Due to
the pendency of OEA Cause No. 00-S-E-2618,
Respondent has not entered into an Agreed Order resolving the violations cited in the Notice of Violation issued in Case
No. 2004-13917-H, nor has IDEM issued a unilateral Notice and Order of the
Commissioner for these cited violations.
14. Subsequent
to the issuance of the aforementioned Notices of Violation and the
aforementioned Commissioner’s Order, the following events have occurred:
A. With
respect to the violations cited in Findings of Fact
Paragraph Nos. 6.A and 12.A through 12.G, Respondent is no longer required under federal or state law to comply with
the regulations referenced in Paragraph Nos. 6A and 12A through
12G with respect to the Purge Mixture management
system at the Site, as long as the Respondent is subject to
the national emission standards for hazardous air
pollutants (NESHAP), 40 CFR Part 63, Subpart IV.
B. With
respect to the violations cited in Findings of Fact Paragraph Nos. 6.B and 6.C,
IDEM learned that Tank 20 has never been used to store hazardous waste.
Therefore, IDEM no longer contends that the requirements referenced therein are
applicable to Tank 20. Additionally,
Respondent has performed inspections of Tank 19, and has recorded and
maintained inspection information.
C. With
respect to the violation cited in Findings of Fact Paragraph No. 6.D, the paint
room tank has been removed.
D. With respect to the
remaining violations cited in the Findings of Fact that pertain
to releases and deficiencies in release detection protocols, subsequent IDEM
inspections revealed that the releases had been cleaned up and no additional releases were observed.
15. The United States Environmental Protection Agency has
initiated an enforcement action against Respondent for the failure to comply
with hazardous waste management regulations, including many of those cited in
the aforementioned Notices of Violation, at various other vehicle assembly
facilities owned by Respondent. In that
action, Respondent disputes the applicability of the hazardous waste management
regulations to the Purge Mixture management systems at the vehicle assembly
facilities that are at issue. The matter
is currently pending before the United States Environmental
Appeals Board under the caption In re: General Motors Automotive-North America Docket No. RCRA-05-2004-0001.
16. In
recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
1.
This Agreed
Order shall be effective (Effective Date) when it is approved by the
Complainant or his delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Within 7 days of
the Effective Date of this Agreed Order, the parties shall file a joint
stipulation of dismissal of OEA Cause No. 00-S-E-2618. IDEM and Respondent agree not to appeal the
Non-final Order referenced in Finding of Fact Paragraph No. 9. In addition, IDEM and Respondent agree the
Non-final Order is not a final order subject to appeal. As a result of entering into this Agreed
Order, the parties agree to dismiss the pending OEA proceedings (Cause Nos.
00-S-E-2618 and 04-S-E-3325) and thereby forego their respective rights to
obtain a final resolution of these issues in further proceedings.
3. Within 7 days of the Effective Date of this Agreed Order, the
parties shall file a joint stipulation of dismissal of OEA Cause No.
04-S-E-3325. IDEM and Respondent agree
that the dismissal of Cause No. 04-S-E-3325 is not and
shall not be construed by anyone, including IDEM or Respondent, as a waiver by
either IDEM or Respondent of any substantive or procedural claims or arguments
concerning whether Respondent’s building at the Site provides adequate
secondary containment pursuant to 40 CFR, Subpart J, as incorporated by
reference in 329 IAC 3.1-10.
4. With respect to the violations cited in Finding of
Fact Paragraph Nos. 6.A and 12.A through 12.G, due
to the adoption of revised federal and state regulations,
Respondent is no longer required under federal or
state law to comply with the regulations referenced therein with respect
to the Purge Mixture management system at the Site, as long as the Respondent is subject to the national emission standards for hazardous air
pollutants (NESHAP), 40 CFR Part 63, Subpart IV.
5. With
respect to the violations cited in Finding of Fact Paragraph Nos. 6.E and 12.H,
Respondent has advised IDEM that it conducted the required integrity assessment,
and Respondent submitted the integrity assessment report to IDEM for
review on February 28, 2006. IDEM has reviewed this report and has determined that it complies with
the applicable standards.
6. With
respect to the violations cited in Findings of Fact Paragraph Nos. 12.J and 12.L,
IDEM has evaluated the daily inspection procedures currently being utilized by
Respondent and has determined that they are
sufficient to comply with the
applicable standards. The daily
inspection procedures currently being utilized by Respondent are attached in a
document designated as Exhibit A. Respondent agrees to follow the inspection
procedures set forth in Exhibit A so long as such procedures are required to
comply with federal law. Moreover, IDEM
may later seek to require Respondent to modify these inspection procedures if federal regulations change and if a
modification is necessary to satisfy the requirements of federal
law. Respondent may take appropriate action to contest and defend against any
such effort that IDEM may take.
7. This Agreed Order
resolves the Notice of Violation and supercedes and replaces the Commissioner’s
Order issued in IDEM Case No. 2000-9096-H.
Additionally, this Agreed Order resolves the Notice of Violation issued
in IDEM Case No. 2004-13917-H.
8. As
referenced in Finding of Fact Paragraph No. 15 above, there is ongoing
litigation between EPA and Respondent.
No final decision has been rendered in that action. IDEM cannot interpret or apply hazardous
waste management regulations in a manner that would result in less stringent
application of such requirements than required under federal law. However, with respect to the hazardous waste
management regulations that are cited in the aforementioned Notices of
Violation, IDEM will not interpret or
apply such regulations in a manner that would result in more stringent
application of such requirements than is required under federal law.
9. All submittals required by
this Agreed Order, unless notified otherwise in writing, shall be sent to:
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Mail
Code 60-02 |
10. Respondent
is assessed a civil penalty of Fifty-Seven Thousand, Seven Hundred and Fifty Dollars ($57,750). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date of this Agreed Order.
11. The civil
penalty is payable by check to the Environmental Management Special Fund. The check shall include the Case Number of
this action and shall be mailed to:
12. In the
event that the civil penalty required by Order Paragraph 10 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.
13. This Agreed
Order shall apply to and be binding upon Respondent, its successors and
assigns. 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 Respondent shall in any way alter its status or
responsibilities under this Agreed Order.
14. In the
event that any terms of the 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.
15. 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.
16. 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 its obligation to comply with the requirements of its
applicable permit(s) or any applicable federal or state law or regulation.
17. The
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 or any applicable federal
or state law or regulation.
18. 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 seek additional civil penalties for the specific
violations specified in the Notices of Violation referenced above.
19. Nothing in
this Agreed Order shall prevent IDEM or anyone acting on its behalf from
communicating with the 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 EPA or any other agency or entity.
20. This Agreed
Order shall remain in effect until: 1) Respondent has paid the civil penalty
required pursuant to Order Paragraph No. 10; and 2) IDEM issues a Resolution of Case letter to
Respondent.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
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Nancy
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Printed: |
Catherine
Clegg |
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Office
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Title: |
Plant
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COUNSEL
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Department
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Michael
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Barnes
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Date: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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Signed
on October 2, 2006 |
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Thomas
W. Easterly |
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Commissioner |
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Respondent performs the following activities for each calendar day for that
portion of the Purge Solvent Reclaim System that runs from the paint booths to
the exterior wall of Respondent’s manufacturing building:
a. Certain employees, such as paint employees, CIS operators,
security, and environmental, have various responsibilities associated with the
Purge Solvent Reclaim System that are carried out in the vicinity of the Purge
Solvent Reclaim System. These employees
report to the Fort Wayne Environmental Personnel or if unavailable to Security
any evidence of corrosion or release from:
i. the observable portion of the Purge Solvent Reclaim System
between the paint booths and the exterior wall of Respondent’s manufacturing
building; or
ii. the floor or containment structures surrounding the Purge
Solvent Reclaim System between the paint booths and the exterior wall of
Respondent’s manufacturing building.
b. GM Environmental records on a daily basis whether or not any
leaks were reported on the Purge Solvent Reclaim System Daily Log, or
subsequent version of that log.
c. The records identified above are maintained for a minimum of
three (3) years from the date of the record and are available for review by
IDEM.
Additionally, on a daily basis, designated employees
conduct and document inspections of the purge pots, including the secondary
containment trays. These inspections are
documented on a form entitled “Purge Pots Daily Inspection Log,” a copy of
which is attached hereto.
INDS01 MTS 879896v2