STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2000-9484-H
)
THE VALSPAR CORPORATION, )
)
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.
I. FINDINGS OF FACT
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 The Valspar Corporation ("Respondent"), which operates the facility with U.S. EPA ID No. IND 005 178 355, located at 202 Jacobs Avenue, in Fort Wayne, Allen County, Indiana ("Site").
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on September 28, 2000 IDEM issued a Notice of Violation via Certified Mail to:
Mr. Richard Rompala, President CT Corporation, Registered Agent
The Valspar Corporation The Valspar Corporation
1101 South Third Street One North Capitol
Minneapolis, Minnesota 55415 Indianapolis, Indiana 46204
5. Respondent notified the U.S. EPA of Large Quantity Generator activities on July 30, 1980. Respondent manufactures industrial paints and coatings.
6. Inspections on May 12 and 17, 2000, were conducted at the Site by representatives of IDEM’s Office of Land Quality (OLQ). The following violations were in existence or observed at the time of these inspections:
a. Pursuant to 40 CFR 262.34(a)(1)(ii), a generator may accumulate hazardous waste on-site in tanks for 90 days or less without a permit provided that the generator complies with 40 CFR 265 Subpart J. Respondent accumulated waste in tanks that did not meet the requirements of Subpart J. Specifically:
(1) The two (2) waste feed tanks did not meet the requirements of Subpart J;
(2) The wastewater tank did not have an integrity assessment, secondary containment and leak detection pursuant to 40 CFR 265.191 and 40 CFR 265.193; and,
(3) Ancillary equipment associated with the wastewater and feed tanks did not have secondary containment and leak detection pursuant to 40 CFR 265.193.
b. 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. Respondent did not store four (4) 55-gallon satellite accumulation containers of waste paint/solvent under the "Sidewinder" tanks and one (1) 55-gallon satellite accumulation container of waste paint/solvent under the "Hayward Strainer" closed.
c. Pursuant to 40 CFR 262.34(c)(1)(ii), a generator may accumulate as much as 55 gallons of hazardous waste 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. Respondent did not properly label four (4) 55-gallon satellite accumulation containers of waste paint/solvent under the "Sidewinder" tanks and one (1) 55-gallon satellite accumulation container of waste paint/solvent under the "Hayward Strainer."
d. Pursuant to 40 CFR 262.34(c)(2), a generator who accumulates hazardous waste in excess of the amounts listed in 40 CFR 262.34(c)(1) at or near any point of generation must comply within three days with 40 CFR 262.34(a). Respondent failed to comply with 40 CFR 262.34(a) when the satellite accumulation container for waste resin in the distillation area was not moved to the less than 90-day accumulation area within three days of the date the container was filled.
e. Pursuant to 40 CFR 262.34(a)(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. Respondent failed to provide the required aisle space in the "Clear Production" less than 90-day accumulation area.
f. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must conduct weekly inspections of container storage areas. Respondent failed to conduct weekly inspections of the "Clear Production" less than 90-day container storage area.
g. 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. Respondent did not mark four (4) 55-gallon containers in the "Clear Production" less than 90-day container storage area with accumulation start dates.
h. 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 containers are marked with the words "Hazardous Waste." Respondent did not label four (4) 55-gallon containers in the "Clear Production" less than 90-day storage area with the words "Hazardous Waste."
i. Pursuant to 329 IAC 3.1-16-2(5) and 40 CFR 273.14, a small quantity handler of universal waste must label or mark the universal waste to identify the type of universal waste. Respondent failed to properly label sixteen (16) boxes of mercury-containing bulbs stored outside the research and development laboratory.
j. Pursuant to 40 CFR 273.15, a small quantity handler of universal waste may accumulate universal waste for no longer than one year from when the waste is generated or received, and must be able to document that this time frame has not been exceeded. Respondent failed to demonstrate that sixteen (16) boxes of mercury-containing bulbs stored outside the research and development laboratory had accumulated for less than one year.
k. Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous. Respondent did not make hazardous waste determinations on solvent contaminated mopheads and hoses used to convey paint and solvents.
On November 10, 2000, Respondent provided IDEM with waste determinations on the solvent contaminated mopheads and hoses used to convey paint and solvents.
l. Pursuant to 40 CFR 268.7(a), a generator must determine if a hazardous waste is restricted from land disposal and if the waste has to be treated before being land disposed. Respondent did not make a land disposal determination on solvent contaminated mopheads and hoses used to convey paint and solvents.
m. 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. Respondent did not provide the emergency coordinators listed in the facility contingency plan with annual training.
On November 10, 2000, Respondent provided IDEM with a list of emergency coordinators who received annual update training on August 11, 2000.
n. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.202, owners and operators must manage all hazardous waste placed in a tank in accordance with the applicable requirements of 40 CFR 265 Subpart BB. Respondent did not comply with the requirements of Subpart BB for the wastewater tank, settling tank, paint waste tank, and feed tanks.
o. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.202 referencing 40 CFR 265.1085(c), air pollutant emissions from each tank subject to Tank Level 1 controls shall be operated in accordance with the requirements of this part. Respondent did not operate the wastewater tank, settling tank, paint waste tank, and feed tanks subject to Tank Level 1 controls as required.
p. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.202 referencing 40 CFR 265.1090, each generator subject to Subpart CC regulations shall maintain the required paperwork. Respondent did not maintain the required paperwork for the wastewater tank, settling tank, paint waste tank, and feed tanks.
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. Within sixty (60) days of the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 265.191 and 40 CFR 265.193. Specifically, Respondent must certify the wastewater tank system and provide secondary containment and leak detection for the wastewater tank. The Respondent shall submit a copy to IDEM of the written certification by those persons required to certify the design of the tank system in accordance with 40 CFR 265.191(a). The certification must include the certification statement required in 40 CFR 270.11(d) and found in Paragraph 14 of this Order. The written certification must be retained by Respondent and kept on file at the facility. In addition, the Respondent shall provide IDEM with documentation that secondary containment and leak detection have been installed.
3. Before the two (2) waste feed tanks can be used to accumulate hazardous waste, the tanks must comply with all requirements of 40 CFR 265 Subpart J. In addition, the tanks must be closed in accordance with 40 CFR 265.197 before any change in service, if the tanks are removed, or when the facility is closed.
4. Respondent shall comply with 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a). Specifically, Respondent shall ensure that all hazardous waste containers are kept closed during storage except when it is necessary to add or remove waste.
5. Respondent shall comply with 40 CFR 262.34(c)(1)(ii). Specifically, Respondent shall ensure that all satellite hazardous waste accumulation containers are labeled with the words "Hazardous Waste" or with other words describing the contents.
6. Respondent shall comply with 40 CFR 262.34(c)(2). Specifically, Respondent shall ensure that all satellite hazardous waste accumulation containers are moved to the less than 90-day accumulation area within three (3) days of the date the container was filled.
7. Respondent shall comply with 40 CFR 262.34(a)(4) referencing 40 CFR 265.174. Specifically, Respondent shall conduct weekly inspections of all hazardous waste container storage areas.
8. Respondent shall comply with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that all hazardous waste containers are marked with accumulation start dates.
9. Respondent shall comply with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that all hazardous waste containers are labeled with the words "Hazardous Waste."
10. Respondent shall comply with 329 IAC 3.1-16-2(5) and 40 CFR 273.14. Specifically, Respondent shall ensure that all universal waste is labeled or marked to identify the type of universal waste.
11. Respondent shall comply with 40 CFR 273.15. Specifically, Respondent shall ensure that all universal waste is dated to document that it is not accumulated for longer than one year from the date the waste was generated or received.
12. Before the wastewater tank, two (2) waste feed tanks, settling tank, and paint waste tank can be used to accumulate hazardous waste, the tanks must comply with all requirements of 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.202. Specifically, Respondent shall comply with all requirements of 40 CFR 265 Subpart BB including, equipment monitoring, recordkeeping, and equipment marking. If tanks are used to accumulate hazardous waste Respondent shall submit to IDEM for review a copy of the records created in accordance with 40 CFR 265.1064 for each piece of equipment subject to Subpart BB regulation. The tanks must be closed in accordance with 40 CFR 265.197 before any change in service, if they are removed, or when the facility is closed.
13. Before the wastewater tank, two (2) waste feed tanks, settling tank, and paint waste tank can be used to accumulate hazardous waste, the tanks must comply with all requirements of 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.202 referencing 40 CFR 265.1085(c) and 40 CFR 265.1090. Specifically, Respondent shall conduct the initial inspection of all tanks subject to 40 CFR 265 Subpart CC air emission standards. If tanks are used to accumulate hazardous waste Respondent shall record the inspection results in the facility’s operating log and submit a copy of the inspection results to IDEM for review. The tanks must be closed in accordance with 40 CFR 265.197 before any change in service, if they are removed, or when the facility is closed.
14. 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."
15. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Lori A. Colpaert, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
16. Respondent is assessed a civil penalty of Thirty Eight Thousand Eight Hundred Dollars ($38,800). 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.
17. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
Violation Penalty
Failure to comply with Order paragraph 2 $1,000 per day
Failure to comply with Order paragraph 3 $1,000 per day
Failure to comply with Order paragraph 12 $1,000 per day
Failure to comply with Order paragraph 13 $1,000 per day
18. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that 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.
19. 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:
Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
20. In the event that the civil penalty required by Order paragraph 16, 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.
21. This Agreed Order shall apply to and be binding upon the Respondent, its successors 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.
22. 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.
23. 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.
24. 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: _________________________
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
Department of Environmental Management
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2001.
For the Commissioner:
Adopted 5/25/01
___________________________
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement