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. 2001-10390-H

)

UNIVERSITY OF NOTRE DAME, )

)

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, except a proceeding to enforce this 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 University of Notre Dame ("Respondent"), which operates the facility with U.S. EPA ID No. IND 048 994 727, located in Notre Dame, St. Joseph 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 17, 2001, IDEM issued a Notice of Violation via Certified Mail to:

Reverend Edward A. Malloy, President

University of Notre Dame

400 Main Building

Notre Dame, Indiana 46556

5. Respondent notified the U.S. EPA of Large Quantity Generator activities on August 4, 1980.

6. Inspections on January 12 and 19, 2001, 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 262.11, a person who generates a solid waste must determine if that waste is hazardous. Respondent did not make a proper hazardous waste determination on the filters used in the paint booth located in the paint shop. During the settlement conference, Respondent indicated that tests proved the filters to be non-hazardous. Subsequent to the settlement conference, Respondent sent IDEM a copy of the test results.

    1. 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. Respondent sent hazardous waste off-site for reclamation using an unauthorized transporter.
    2. 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 shipped 2,750 pounds a year of hazardous waste D001 without a manifest to Ziolkowski Construction, Inc., for distillation.
    3. Pursuant to 40 CFR 262.34(b), a generator who accumulates hazardous waste for more than 90 days is an operator of a storage facility and is subject to the requirements of 40 CFR 264 and the permit requirements of 40 CFR 270. Respondent became an operator of a storage facility when the Respondent stored the following waste on-site for more than 90 days.
    1. four (4) small containers located in the flammable cabinet dated June 13, 2000; and
    2. one (1) container of waste mercury located in the oxidizer room dated August 28, 1998.

 

 

e. Pursuant to IC 13-30-2-1(10) and 40 CFR 270.10, only those owners and operators with hazardous waste permits may be involved in the treatment, storage, or disposal of hazardous waste as identified or listed in 40 CFR Part 261. Respondent does not have a permit to operate as a storage facility yet stored waste on-site for more than 90 days.

f. Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste storage facility shall notify the Commissioner of such activities on forms provided by the Commissioner. Respondent failed to notify the Commissioner as a hazardous waste storage facility.

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 label fifteen (15) small containers located in the oxidizer room with the 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 the containers are marked with the words "Hazardous Waste." Respondent did not label the following:

(1) fifteen (15) small containers located in the oxidizer room;

(2) one (1) container of waste mercury located in the oxidizer room; and

(3) one (1) 5-gallon pail marked "Solid Waste" located in the corrosive room.

i. Pursuant to 329 IAC 13-4-3(d)(1), generators must label all used oil containers and aboveground tanks with the words "Used Oil." Respondent failed to label the following containers or tanks with the words "Used Oil":
    1. one (1) 55-gallon container located in the maintenance shop;
    2. one (1) 205-gallon tank located in the maintenance shop;
    3. two (2) 55-gallon containers located in the landscape shop; and
    4. one (1) 55-gallon container located in the golf garage.

At the time of the inspection, Respondent properly labeled the containers and tank of used oil with the words "Used Oil."

j. Pursuant to 329 IAC 3.1-16-2(7) and 40 CFR 273.34, a large quantity handler of universal waste must label or mark the universal waste to identify the type of universal waste. Respondent failed to label fifty-three (53) boxes containing fifteen (15) eight-foot long mercury bulbs. During the settlement conference, Respondent indicated that the universal waste was properly labeled.

k. On April 17, 2002, the parties met to discuss the allegations set forth above.

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 comply with 40 CFR 262.12(c). Specifically, Respondent shall ensure that all hazardous wastes are offered only to transporters that have received EPA identification numbers.
    3. Upon the Effective Date of this Agreed 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 a manifest accompanies all hazardous waste sent off-site.
    4. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(b), IC 13-30-2-1(10), and 40 CFR 270.10. Specifically, Respondent shall ensure that all hazardous waste which has been stored for greater than 90 days is manifested off-site to a treatment, storage or disposal facility. Respondent shall submit copies of manifests used to accompany this waste to IDEM within five (5) days from the time it is shipped off-site. In the future, Respondent shall ensure that hazardous waste is not stored for greater than 90 days without obtaining a permit for hazardous waste storage from IDEM. If the Respondent is going to store product or non-hazardous waste in the hazardous waste storage area, Respondent must ensure that all containers are stored in the appropriate designated areas.
    5. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(a)(2). Specifically, Respondent shall clearly mark each container with the accumulation start date.
    6. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that each container of hazardous waste located in the less than 90 day accumulation area is marked with the words "Hazardous Waste."
    7. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Aubrey N. Sherif, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

8. Respondent is assessed a civil penalty of Eleven Thousand Two Hundred Fifty Dollars ($11,250). 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.

9. In the event the terms and conditions of the following paragraph is 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 4 $100 per week

10. 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.

11. 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

12. In the event that the civil penalty required by Order paragraph 8 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 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.

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.
    1. 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.
    2. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management University of Notre Dame

By: __________________________ By: ________________________

Nancy L. Johnston, Chief

Office of Enforcement Title: ________________________

Printed:_______________________

Date: __________________________ Date: ________________________

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: ___________________________ By: ________________________

Michael S. Byron, Attorney

Office of Legal Counsel

Date: ___________________________ Date: ________________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2003.

 

For the Commissioner:

 

Signed March 17, 2003

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs