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. 2002-12553-H ) ERLER INDUSTRIES, INC., ) ) 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 constitute a waiver of any defense, legal, or equitable, which Respondent may have in any future administrative or judicial proceeding, except in 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 Erler Industries, Inc. ("Respondent"), which operates the facility with U.S. EPA ID No. IND 984 976 217, located at 418 Stockwell Street, in North Vernon, Jennings County, Indiana ("Site").

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.

 Agreed Order 2002-12553-H

Erler Industries, Inc.

Page 2

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to: J. Mark Erler, President Linda Erler, Registered Agent

Erler Industries, Inc. Erler Industries, Inc.

418 Stockwell Street 418 Stockwell Street

P.O.Box 219 P.O. Box 219

North Vernon, Indiana 47265 North Vernon, Indiana 47265

5. Respondent notified the U.S. EPA of Small Quantity Generator activities on March 11, 2002. Respondent conducts a paint finishing operation for small plastic objects such as cellular phones. Waste paint, spent rags, and spent paint booth filters are generated during the painting and coating processes.

6. An inspection on September 17, 2002 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:
    1. 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 waste determination on rags contaminated with methyl ethyl ketone (MEK) generated inside Plant 3. Respondent has been managing rags contaminated with MEK as a solid waste and disposing of the rags at Medora Landfill (Rumpke of Indiana).
    2. 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 rags contaminated with hazardous waste to Medora Landfill. Medora Landfill does not have an EPA identification number and is not a permitted treatment, storage, and disposal (TSD) facility.
    3. 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 rags contaminated with hazardous waste to Medora Landfill without a manifest.
    4. 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 determine if hazardous waste rags contaminated with MEK are restricted from land disposal.

      5.  

       
       
       
       
       
       
       
       
       
       

      Agreed Order 2002-12553-H

      Erler Industries, Inc.

      Page 3

    5. 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 other words describing the contents. Respondent did not label satellite accumulation containers near the paint booths in Plant 1, 2, and 3 and near the distillation unit. This violation was corrected at the time of the inspection.
    6. Pursuant to 40 CFR 262.34(c)(2), a generator who accumulates hazardous waste in excess of 55 gallons at or near the point of generation must within three (3) days mark the container holding the excess amount with the date the excess amount began accumulating and place the container holding the excess amount in the less than 180-day container storage area. Respondent did not move two (2) containers of still bottoms in the distillation room to the less than 180-day container storage area within three (3) days. This violation was corrected at the time of the inspection.
    7. Pursuant to 329 IAC 13-4-3(e), upon detection of a release of used oil to the environment, a generator must perform the following clean-up steps: 1) Stop the release; 2) Contain the released used oil; 3) Clean up and manage properly the released used oil and other materials; 4) Communicate a spill report in accordance with 327 IAC 2-6.1; and 5) If necessary to prevent future releases, repair or replace any leaking used oil storage containers or tanks prior to returning them to service. Respondent did not stop, contain, and clean up and manage properly released used oil located on the ground behind the boiler room.
    8. Pursuant to 329 IAC 10-4-2, no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including the creating of a fire hazard, vector attraction, air or water pollution, or other contamination. Respondent allowed mask wash solution to be disposed on the ground in between the boiler room and the air handling unit.
    9. Pursuant to IC 13-30-2-1(1), no person shall discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment in violation of 329 IAC 13-4-3(e) and 329 IAC 10-4-2. Respondent allowed the release of used oil onto the ground behind the boiler room. Respondent allowed the release of mask wash solution onto the ground in between the boiler room and the air handling unit.

      10.  

       
       
       
       
       
       

      Agreed Order 2002-12553-H

      Erler Industries, Inc.

      Page 4

    10. Pursuant to 40 CFR 262.34(d)(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 hazardous waste to the air, soil, or surface water, which could threaten human health or the environment. Respondent failed to properly manage containers of mask wash solution to minimize the release to the environment.
    1. The Respondent discontinued the management of rags contaminated with MEK as a solid waste and discontinued the disposal of the rags at Medora Landfill as of December 2002. Respondent is now managing rags contaminated with MEK as a hazardous waste and has arranged for the rags to be handled by Superior Solvent for reclamation at the Reclaimed Energy Company facility in Connersville, Indiana.
    2. As of April 10, 2003, Respondent eliminated the use of MEK to clean spray gun nozzles and is using a substitute cleaning agent, comprised mainly of acetone, for such purposes.
    3. Respondent made a spill report under 327 IAC 2-6.1 on April 17, 2003 and was issued Incident No. 2003-04-154.
    4. Respondent submitted a Site Assessment Plan to the IDEM on April 23, 2003 which provides for the excavation and disposal of soil impacted by the release of compressor blowdown used oil and mask wash solution.
    5. Respondent installed an oil/water separator on September 3, 2002 to remove oil from the compressor blowdown.
    6. Respondent installed a dike around the mask wash unit on December 21, 2002 and installed a doorsill at the exit door near the mask wash unit to prevent runoff on March 21, 2003. Respondent also installed automated water level controls on the mask wash unit and trained personnel on the proper use of detergents and defoaming agent to minimize spillage from the unit.
13. On May 5, 2003, IDEM approved the Respondent's site assessment plan dated April 22, 2003 with modifications. The approved plan is incorporated into this Agreed Order and is deemed an enforceable part thereof.

14. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.



 
 
 
 
 
 
 
 

 Agreed Order 2002-12553-H

Erler Industries, Inc.

Page 5

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.
    1. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.12(c). Specifically, Respondent shall use a transporter and permitted TSD facility which have received an EPA identification number.
    2. 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 use a manifest for the off-site transportation and disposal of hazardous waste.
    3. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(c)(1)(ii). Specifically, Respondent shall ensure hazardous waste satellite containers are either marked with the words "Hazardous Waste" or with other words describing the contents.
    4. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(c)(2). Specifically, Respondent shall ensure hazardous waste accumulated in excess of 55-gallons is moved from the point of generation to the less than 180-day container storage area within three (3) days.
    5. Respondent submitted a site assessment plan dated April 22, 2003, which was reviewed and approved with modifications by IDEM on May 5, 2003. Upon the Effective Date of this Agreed Order, Respondent shall implement the site assessment plan as approved and in accordance with time frames contained therein.
7. Within thirty (30) days of completion of the remedial action pursuant to the site assessment plan, Respondent shall submit to IDEM certification by an independent registered professional engineer that the remedial action has been completed as outlined in the approved site assessment plan.

8. "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent's best efforts to fulfill the obligation. The requirement that the Respondent exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.
 
 
 
 

 Agreed Order 2002-12553-H

Erler Industries, Inc.

Page 6

The Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting its

claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM.

If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the force majeure.

 9. The decision of whether an event is considered a force majeure shall be communicated to the Respondent by IDEM. 10. All submittals required by this Agreed Order, unless notified otherwise in

writing, shall be sent to:

Jennifer Reno, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

11. Respondent is assessed a civil penalty of Twenty-Four Thousand Two Hundred Dollars ($24,200). 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.

12. 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 6 $500 per week

Failure to comply with Order paragraph 7 $500 per week
 
 
 
 
 
 
 
 
 
 

 Agreed Order 2002-12553-H

Erler Industries, Inc.

Page 7

    1. 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.
14. 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

15. In the event that the civil penalty required by Order paragraph 11 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.

16. 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.

17. 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.

18. 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.
    1. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
 
 
 
 
 
  Agreed Order 2002-12553-H

Erler Industries, Inc.

Page 8
 
 

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 6/6/03

___________________________

Felicia A. Robinson

Deputy Commissioner for

Legal Affairs