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. 2000-9844-H
)
SHERWIN WILLIAMS COMPANY )
)
)
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 fact or violation alleged by IDEM 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 legal proceeding.
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 Sherwin Williams Company ("Respondent"), who operates the facility with U.S. EPA ID No. IND 046 395 877, located at 3433 North Clinton Street 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, IDEM issued a Notice of Violation via Certified Mail to:
Thomas A. Commes C.T. Corporation System
President Registered Agent for:
Sherwin Wiliams Company Sherwin Williams Company
101 Prospect Avenue N. W. 36 South Pennsylvania St. Suite 700
Cleveland, Ohio 44115 Indianapolis, Indiana 46204
5. Respondent notified the U.S. EPA of Small Quantity Generator activities on August 2, 1997. Respondent blends, tints, and sells paint for residential, commercial, and industrial applications.
6. An inspection on September 1, 2000, was conducted at the Site by a representative of IDEM’s Office of Land Quality ("OLQ"). The following violations were in existence or observed at the time of this inspection:
a. Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous. Respondent did not make a proper hazardous waste determinations on rags contaminated with toluene, and sent them to a solid waste landfill (National Servall Landfill). Since the inspection, Respondent has submitted to IDEM documentation that a proper waste determination has been made on the rags.
b. Pursuant to 40 CFR 262.12(c), a generator must not offer hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number authorizing such activities. Respondent sent hazardous waste rags to an unauthorized disposal facility (National Servall Landfill) and allowed the waste to be transported by an unauthorized transporter (Waste Management). Since the inspection, Respondent has notified IDEM that the toluene contaminated rags are being sent to a commercial laundry.
c. Pursuant to 329 IAC 3.1-7-3(a), 329 IAC 3.1-7-4, and IC 13-30-2-1(12), a generator who transports or offers for transportation, hazardous waste for off-site treatment, storage, or disposal, must prepare a manifest. Respondent sent hazardous waste rags off-site without a manifest.
d. 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. This facility did not determine if the hazardous waste rags were restricted from land disposal.
e. 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 one 5-gallon satellite accumulation container of waste solvent and paint. This container was located in the Product Service Room.
f. Pursuant to 40 CFR 262.34(d)(2) 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 one 5-gallon satellite accumulation container of waste solvent and paint (located in the Product Service Room) closed.
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 the Order, Respondent shall comply with 329 IAC 3.1-7-3(a), 329 IAC 3.1-7-4, and IC 13-30-2-1(12). Specifically, Respondent shall ensure that all hazardous waste sent off-site is accompanied by a manifest, except for all waste rags which are sent to a commercial laundry.
3. Upon the Effective Date of the Order, Respondent shall comply with 40 CFR 262.34(c)(1(ii). Specifically, Respondent shall ensure that all containers of hazardous waste are properly labeled.
4. Upon the Effective Date of the Order, Respondent shall comply with 40 CFR 265.173. Specifically, Respondent shall ensure that all containers of hazardous waste are closed when not in use.
5. All submittals required by this Agreed Order, unless notified otherwise in
writing, shall be sent to:
Ms. Aubrey N. Sherif, Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
6. Respondent is assessed a civil penalty of Ten Thousand Dollars ($10,000). 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.
7. Civil 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
8. In the event that the civil penalty required by Order paragraph 6 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.
9. 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.
10. 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.
11. 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.
12. 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: ________________________
Michael Byron
Office of Legal Counsel
Date: ___________________________ Date: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2001.
For the Commissioner:
Signed 7/27/01
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement