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. 2003- 12664-H
)
CLASSICO SEATING A/K/A HANCO, 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 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 Classico Seating a/k/a Hanco, Inc. ("Respondent"), which owns and operates the company with U.S. EPA ID No. IND 984 887 281, located at 801 North Clay Street in Peru, Miami 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 April 10, 2003, IDEM issued a Notice of Violation via Certified Mail to:
Kim Regan Harry T. Richardson, Jr.
President Registered Agent
Classico Seating a/k/a Hanco, Inc. Classico Seating a/k/a Hanco, Inc.
801 North Clay Street 1374 Clay Spring Drive
Peru, Indiana 46790 Carmel, Indiana 46032
5. Respondent notified the U.S. EPA of Small Quantity Generator activities in August of 1988. Respondent updated the notification in May of 2002 to a Conditionally Exempt Small Quantity Generator. During the November 15, 2002 inspection, IDEM became aware that Respondent is actually a Large Quantity Generator of hazardous waste.
Respondent manufactures commercial restaurant and office seating. The seating is manufactured from steel and painted in a powder coating booth. Respondent also applies foam and fabric for the seat cushions.
6. An inspection on November 15, 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 these inspections:
a. Pursuant to 40 CFR 268.7(a)(2) and (3), a generator of hazardous waste must determine if a waste has to be treated before it can be land disposed, and send a one time notice to each treatment and storage facility; or, if the waste does not have to be treated, the generator must send a one time notice to each treatment, storage, or disposal facility. The generator must place a copy of this notice in the file. Respondent did not have a copy of these notices for manifest numbers INA 1292629 and MI 7120523, both of which were dated February 26, 1999, on file as required. On July 9, 2003, Respondent provided IDEM with a copy of both Land Disposal Restriction forms.
b. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground tanks with the words "Used Oil." Respondent did not label six 55-gallon containers of used oil in the less-than-90 day storage area with the words "Used Oil." During the June 4, 2003 settlement conference, Respondent notified us these containers were properly labeled shortly after the inspection.
c. 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 twenty-five containers of hazardous waste with accumulation start dates. Two of the containers were located in the outside less-than-90 day container storage area; twenty-three containers were located behind a semi-trailer, which was located just behind the outside less-than-90 day container storage area.
d. 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 twenty-five containers of hazardous waste with the words "Hazardous Waste." Two of the containers were located in the outside less-than-90 day container storage area; twenty-three containers were located behind a semi-trailer, which was located just behind the outside less-than-90 day container storage area.
e. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.171, if a container holding hazardous waste is not in good condition, or if it begins to leak, the generator must transfer the hazardous waste from this container to a container that is in good condition. Twenty-three containers of trichloroethylene contaminated soil were in poor condition. These containers were located behind a semi-trailer, which was located just behind the outside less-than-90 day container storage area. The containers had been stored at this location since at least 1995.
f. 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 hazardous waste storage facility when it stored twenty-five containers of hazardous waste on-site for longer than 90 days, yet did not have a permit to do so.
g. 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 twenty-five containers of hazardous waste on-site for more than 90 days, yet did not comply with 40 CFR 264 and 40 CFR 270. Two containers of stripping waste were stored in the outside less-than-90 day container storage area for at least one year. Twenty-three containers of trichloroethylene contaminated soil located outside behind a semi-trailer were stored on-site since at least 1995.
h. Pursuant to 329 IAC 3.1-15-3, the owner or operator of a treatment, storage, or disposal facility must have a detailed, written estimate, in current dollars, of the cost of closing the facility. Respondent did not have a detailed, written estimate of the cost of closing the facility, yet operated as a storage facility by storing twenty-five drums of waste for longer than 90 days.
i. Pursuant to 329 IAC 3.1-15-4, an owner or operator of a treatment, storage, or disposal facility must establish financial assurance for closure of the facility. Respondent did not establish financial assurance for closure of the facility yet operated as a storage facility by storing twenty-five drums of waste for longer than 90 days.
j. Pursuant to 329 IAC 3.1-15-8(a), an owner or operator of a hazardous waste facility must demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden and accidental occurrences arising from operations of the facility. Respondent did not establish financial liability coverage yet operated as a storage facility by storing twenty-five drums of waste for longer than 90 days.
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 thirty (30) days of the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that all containers of hazardous waste are labeled with accumulation start dates.
3. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that all hazardous waste containers are marked with the words "Hazardous Waste."
4. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.171. Specifically, Respondent shall transfer all hazardous waste from containers that are in poor condition, to containers that are in good condition.
5. Upon the Effective Date of the Agree Order, Respondent shall comply with 40 CFR 262.34(b). Specifically, Respondent shall immediately ship all containers of hazardous waste that have been stored on-site for longer than 90 days, to an appropriate treatment, storage, or disposal facility. The shipment shall include the two containers of stripping waste, and the twenty-three containers of the trichloroethylene contaminated soil.
6. Within fifteen (15) days of the Effective Date of this Agreed Order, Respondent shall submit to IDEM documentation that all hazardous waste stored over 90 days has been shipped to an authorized disposal facility.
7. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit a hazardous waste closure plan to IDEM for approval. This closure plan shall be completed in accordance with the provisions of 40 CFR 264 Subpart G, as incorporated by 329 IAC 3.1-9-1.
8. Within ten (10) days of notice of IDEM's approval of the closure plan, Respondent shall implement the plan as approved and in accordance with the time frames contained therein.
9. In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM's notice. After three (3) submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.
10. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC 3.1-15-3. Specifically, Respondent shall provide IDEM with a detailed written estimate of the cost of closing the facility.
11. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC 3.1-15-4. Specifically, Respondent shall provide IDEM with documentation that they have established financial assurance for closure of the facility.
12. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC 3.1-15-8(a). Specifically, Respondent shall provide IDEM with documentation that they have established financial liability coverage.
13. All submittals required by this Agreed Order, unless notified otherwise in
writing, shall be sent to:
Aubrey N. Sherif
Senior Environmental 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 Thirty Nine Thousand Four Hundred Dollars ($39,400). Said penalty amount shall be due and payable to the Environmental Management Special Fund in twelve payments over a three year period. The first payment of Three Thousand, One Hundred Dollars ($3,100) shall be due within thirty (30) days of the Effective Date of this Agreed Order. Each subsequent payment of Three Thousand, Three Hundred Dollars ($3,300) shall be due every ninety (90) days, until the entire amount has been paid in full.
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 Penalty
Failure to comply with Order paragraph 6 $100 per week
Failure to comply with Order paragraph 7 $100 per day
Failure to comply with Order paragraph 8 $500 per week
Failure to comply with Order paragraph 9 $500 per week
Failure to comply with Order paragraph 10 $500 per week
Failure to comply with Order paragraph 11 $100 per week
Failure to comply with Order paragraph 12 $100 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 each due date, 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 November 15, 2003
Felicia A. Robinson
Deputy Commissioner for
Legal Affairs