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. 2001-11019-H
)
INDIANA HEAT TRANSFER 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. 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 will 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 ("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 Indiana Heat Transfer Corporation ("Respondent"), which owns the facility with U.S. EPA ID No. IND 005421623, located at 500 West Harrison Street, in Plymouth, Marshall County ("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 on February 2, 2002, via Certified Mail to:
Daniel B. Altman, President Daniel B. Altman, Registered Agent Indiana Heat Transfer Corporation Indiana Heat Transfer Corporation
500 W. Harrison St. 3905 Vincennes Rd., Ste. 100
Plymouth, Indiana 46563 Indianapolis, IN 46268
5. Respondent notified the U.S. EPA of large quantity generator activities on August 13, 1980. Respondent is a manufacturer of engine coolant radiators.
6. An inspection on September 18, 2001, 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 hazardous waste determinations on one (1) 55-gallon container of waste marked "Ballasts," located in the outside Hazardous Waste Accumulation Area, and on waste fluorescent lights, generated from the facility lighting systems. Since the date of the inspection, Respondent has made waste determinations on the container of waste marked "Ballasts," located in the outside Hazardous Waste Accumulation Area, and on waste fluorescent lights, generated from the facility lighting systems. Even though a waste determination had not been made on the container of waste marked "Ballasts" at the time of the inspection, the container was marked with the words "Hazardous Waste."
b. Pursuant to IC 13-30-2-1(10) and 40 CFR 270.1(c), no person shall commence or engage in the operation of a hazardous waste facility without having first obtained a permit from IDEM. Respondent operated as a storage facility without having first obtained a permit. Four (4) containers of hazardous waste were stored for greater than 90 days at the outside Hazardous Waste Accumulation Area. Respondent never intended to be a hazardous waste storage facility, but mistakenly allowed the containers of hazardous waste to remain on-site for greater than 90 days. Respondent submitted information to IDEM on July 15, 2002, documenting cleanup and sampling of the area where hazardous waste had been stored for greater than 90 days.
c. Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility, must notify the Commissioner of its hazardous waste activity on the approved forms. Respondent failed to notify the Commissioner of storage activities. Four (4) containers of hazardous waste were stored for greater than 90 days at the outside Hazardous Waste Accumulation Area.
d. 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 Part 264 and the permit requirements of 40 CFR Part 270. Respondent stored four (4) containers of hazardous waste on-site at the outside Hazardous Waste Accumulation Area for greater than 90 days without complying with 40 CFR 264 and 40 CFR 270.
e. 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 one (1) 55-gallon container, located at the outside Hazardous Waste Accumulation Area, with the accumulation start date.
f. Pursuant to 40 CFR 262.34(c)(1), 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). Respondent accumulated greater than 55 gallons of hazardous waste at a satellite accumulation area. Two (2) 55-gallon containers of hazardous waste Wet Paint were observed at the two-sided curtain waterfall paint booth. Respondent presented information on March 6, 2002, indicating that there were two (2) separate satellite accumulation areas.
g. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.37, a generator must attempt to make arrangements with local emergency authorities to familiarize them with the facility. Respondent had not made arrangements to familiarize the local police with the layout of the facility, properties of hazardous wastes handled at the facility, and associated hazards. Additionally, there was no agreement designating primary emergency authority where more than one police or fire department may respond to an emergency situation at the facility. Since the date of the inspection, Respondent has made arrangements with local emergency authorities to familiarize them with the facility, and has designated the Plymouth fire chief as the primary emergency authority in case of an emergency at the facility. Additionally, Respondent provided IDEM with a letter from the Plymouth Police Department indicating that a copy of Respondent's Emergency Plan had been provided to the Police Department in 1999.
h. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.52, a facility’s contingency plan must include certain information. Respondent's contingency plan did not include all of the required information. Information related to emergency service coordination agreements and an updated list of names, addresses, and phone numbers of all persons qualified to act as emergency coordinator were not included in the contingency plan. Since the date of the inspection, Respondent has submitted an updated contingency plan to IDEM.
i. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a), 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. Respondent did not provide facility personnel managing hazardous waste with training that taught them to perform their duties in compliance with the hazardous waste management rules. Since the date of the inspection, Respondent submitted information to IDEM indicating that facility personnel have had HazMat training. Respondent indicated that personnel involved in hazardous waste management will be trained in all aspects of their hazardous waste management duties.
j. 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. Respondent did not maintain the following required information on-site:
i. Job titles for each position related to hazardous waste management and the names of the employee filling each job;
ii. A written job description for each position related to hazardous waste management including requisite skill, education, or other qualifications, and duties of facility personnel assigned to each position;
iii. A written description of the introductory and continuing training that will be provided to each person managing hazardous waste at the facility; and
iv. Records that document that the hazardous waste training has been given to, and completed by, employees involved in the management of hazardous waste.
Respondent submitted information to IDEM on March 5, 2002, listing the names, titles, and job descriptions for 4 employees involved in hazardous waste management--Bob McKeen, Don Yakimicki, Larry Cudney, and Fred Zimmer. Training records were submitted for Larry Cudney on May 28, 2002.
k. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.191(a), a generator with an existing 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 certified by an independent, qualified, registered, professional engineer in accordance with 40 CFR 270.11(d) for two (2) existing waste acid flux hazardous waste accumulation tanks. Respondent submitted a 'Tank System Certification' report, prepared by Scientific Control Laboratories. Inc. on July 29, 2002.
l. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.193, all new and existing tank systems must have secondary containment that meets the requirements of 40 CFR 265.193. Respondent did not provide adequate secondary containment for two (2) waste acid flux hazardous waste tank systems. The leak detection system was inadequate, and there was not an impermeable interior coating compatible with the stored waste which was capable of preventing the migration of waste into the concrete. Additionally, Respondent had not conducted an annual leak test as described in paragraph 40 CFR 265.193(i)(1), or an internal inspection or other tank integrity examination by an independent, qualified, registered professional engineer that addressed cracks, leaks, corrosion, and erosion at least annually. Respondent had not removed waste from the north hazardous waste tank to allow the condition of all internal tank surfaces to be assessed, according to the 'Tank Inspection Report,' dated June 1, 1999. Since the date of the inspection, Respondent has raised the walls of the secondary containment. However, based on follow-up inspections by IDEM on August 5 and October 10, 2002, necessary improvements to the secondary containment to ensure adequate holding capacity have not been provided.
m. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.195, a generator must inspect tank systems once each operating day for the items found in 40 CFR 265.195(a) and must document the inspection findings. Respondent did not conduct and document the required daily inspections in accordance with parameters referenced in 40 CFR 265.195(a). Additionally, the 'Weekly Leak Detection Audit' inspections conducted at the facility did not document the correct information referenced in 40 CFR 265.195(c). Since the date of the inspection, Respondent submitted a 'daily leak detection checklist' to IDEM.
n. 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 satellite accumulation containers closed. A 55-gallon satellite accumulation container, located in the Assembly Area, and a 55-gallon satellite accumulation container, located at the two-sided curtain waterfall paint booth were stored open.
o. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31, facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of a hazardous waste to the air, soil, or surface water, which could threaten human health or the environment. Respondent failed to properly manage the facility to minimize releases to the environment in the following instances:
i. An oil-like release of contaminants from the Hydraulic Oil storage area was observed at the outside Hazardous Waste Container Accumulation Area;
ii. Excess paint and absorbent were observed on the floor in the vicinity of the Eclipse Paint booth;
iii. An oil-like release of contaminants and absorbent were observed on the floor and in the sump in the Compressor Room; and
iv. Excess Lead Solder Dross was observed on the floor around a 55-gallon container in the Assembly Department.
Respondent submitted information to IDEM on March 5, 2002, addressing these four (4) areas of concern.
p. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of any contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage grinding, or another method acceptable to the solid waste management board. Respondent allowed the deposit of contaminants upon the land.
q. Pursuant to 329 IAC 3.1-7-14, a generator who ships his hazardous waste off-site to a treatment, storage, or disposal facility within the United States must prepare and submit biennial reports no later than March 1 of each even-numbered year. Respondent failed to submit its 1999 Biennial Report prior to March 1, 2000.
r. Pursuant to 329 IAC 3.1-7-11, a generator who sends hazardous waste off-site must ensure that manifests are fully filled out and contain accurate information. Respondent did not include all of the required information on Uniform Hazardous Waste Manifest No. HER 031789. Items 'I' and 'K' on the manifest were not completed. Respondent submitted information to IDEM on February 22, 2002, indicating that Items 'I' and 'K' had been completed on the manifest, but were not visible on the copy provided to the IDEM inspector.
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 ensure compliance with 40 CFR 262.11. Specifically, Respondent shall ensure that proper hazardous waste determinations are made for each waste stream generated at the facility.
3. Upon the Effective Date of the Order, Respondent shall ensure that no hazardous waste is stored at the facility for greater than 90 days.
4. Upon the Effective Date of the Agreed Order, Respondent shall ensure compliance with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that containers of hazardous waste are clearly marked with the date when accumulation begins.
5. Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR 265.16(a). Specifically, Respondent shall provide IDEM with documentation, including the training program, demonstrating that facility personnel managing hazardous waste have been trained to perform their duties in compliance with the hazardous waste management rules.
6. Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR 265.16(d)(1-4). Specifically, Respondent shall provide IDEM with documentation demonstrating that the required hazardous waste training related documents and records are being maintained at the facility.
7. Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR 265.193. Specifically, Respondent shall provide IDEM with documentation demonstrating that the two (2) waste acid flux hazardous waste tank systems have been provided with adequate secondary containment.
8. Upon the Effective Date of the Agreed Order, Respondent shall ensure compliance with 40 CFR 265.195. Specifically, Respondent shall ensure that the tank systems are inspected once each operating day for the applicable items found in 40 CFR 265.195 and shall document the inspection findings.
9. Upon the Effective Date of the Agreed Order, Respondent shall ensure compliance with 40 CFR 265.173(a). Specifically, Respondent shall ensure that containers holding hazardous waste at the facility are kept closed.
10. Upon the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR 265.31. Specifically, Respondent shall maintain and operate the facility to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of a hazardous waste to the air, soil, or surface water, which could threaten human health or the environment.
11. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 329 IAC 3.1-7-14. Specifically, Respondent shall ensure that it submits its biennial report to IDEM no later than March 1 of each even-numbered year.
12. Upon the Effective Date of this Agreed Order, Respondent shall ensure that manifests are fully filled out and contain accurate information.
13. All submittals required by this Agreed Order, unless notified otherwise in
writing, shall be sent to:
Brenda Lepter, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
14. Respondent is assessed a civil penalty of Nineteen Thousand Dollars ($19,000). 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.
15. 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
PenaltyFailure to comply with Order paragraph No. 5 $500 per week
Failure to comply with Order paragraph No. 6 $500 per week
Failure to comply with Order paragraph No. 7 $1000 per week
16. 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.
17. 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
18. In the event that the civil penalty required by Order paragraph 14 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.
19. 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.
20. 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.
21. 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.
22. 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
Office of Enforcement Printed: __________________
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 _______________, 2003.
For the Commissioner:
Signed on 1/16/2003
___________________________
Felicia A. Robinson
Deputy Commissioner for
Legal Affairs