STATE OF
) SS: OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2003-13439-H
)
RBK DEVELOPMENT, INC. )
d/b/a
)
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
2. Respondent is RBK Development, Inc.
d/b/a Superior Wood Products ("Respondent"), which operates the
facility with U.S. EPA ID No. IN0 000 433 896, located at
3. The
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Andy Swihart, President Mr. Roger Korenstra, Registered Agent for
RBK Development, Inc. RBK Development, Inc.
d/b/a
Superior Wood Products
5. Respondent notified the U.S. EPA of
Large Quantity Generator activities on
6. An inspection on April 9 and 10, 2003, 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 waste solvent contaminated rags and spray booth paint filters (F005).
b. 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 its waste solvent contaminated rags and spray booth paint filters (F005) were restricted from land disposal.
c. Pursuant to 40 CFR 262.12(c) and IC 13-30-2-1(11), a generator must not offer hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received a permit or an EPA identification number. Respondent sent its waste solvent contaminated rags and spray booth paint filters (F005) via transporter Waste Management to disposal facilities Prairie View Landfill and National Serv-all Landfill, none of which possessed a permit or EPA identification number from the department for the transportation or disposal of hazardous waste.
d. Pursuant to 40 CFR 262.20 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 its waste solvent contaminated rags and spray booth paint filters (F005) off-site without a manifest.
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 the following satellite accumulation containers:
i. Four (4) 5-gallon containers of waste paint related materials (D001, D035, F003, F005) located in front of the primer, stain, and seal booths,
ii. Two (2) 5-gallon containers of waste paint related materials (D001, D035, F003, F005) located in the final topcoat booth and,
iii. One (1) 5-gallon container of waste paint related materials (D001, D035, F003, F005) located in the drawer box booth.
f. Pursuant to 40 CFR 262.34(c)(1)(i) and 40 CFR 262.34(a)(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 had six (6) 5-gallon spray booth satellite containers, and nine (9) 55-gallon containers of waste paint related materials (D001, D035, F003, F005) stored open in the waste containment area.
g. 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 10-4-2. Respondent discharged glue waste into the environment in violation of 329 IAC
h. Pursuant to 329 IAC
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 with 40 CFR 262.11. Specifically, Respondent shall ensure that proper hazardous waste determinations are made for waste solvent contaminated rags and spray booth paint filters (F005) generated at the facility.
3. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 268.7(a). Specifically, Respondent shall determine if its waste solvent contaminated rags and spray booth paint filters (F005) are restricted from land disposal.
4. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.12(c) and IC 13-30-2-1(11). Specifically, Respondent shall ensure that it
only offers its hazardous waste to transporters and disposal facilities that have received the appropriate permit or EPA identification number.
5. Upon the Effective Date of this Agreed Order, Respondent shall comply with
40 CFR 262.20 and IC 13-30-2-1(12). Specifically, Respondent shall always use a manifest when transporting or offering for transportation, its waste solvent contaminated rags and spray booth paint filters (F005) for off-site treatment, storage, or disposal.
6. Upon the Effective Date of this Agreed Order, Respondent shall comply with
40 CFR 262.34(c)(1)(ii) and ensure that all satellite accumulation containers are marked with either the words "Hazardous Waste" or with other words describing their contents. Specifically, Respondent shall properly label those satellite containers aforementioned in Findings of Fact 6e.
7. Upon the Effective Date of this Agreed Order, Respondent shall comply with
40 CFR 265.173(a) and ensure that all containers holding hazardous waste must always be closed during storage, unless necessary to add or remove waste.
Specifically, Respondent shall ensure that all spray booth satellite containers and all containers in the containment storage area are closed during storage.
8. Upon the Effective Date of this Agreed Order, Respondent shall comply with
IC 13-30-2-1(1) and shall not 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 10-4-2. Specifically, Respondent shall cease disposing of its glue waste in the storm water catch basin on the north side of the rough mill.
9. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit documentation to IDEM that it has removed and properly disposed of all contaminated soil in the aforementioned storm water catch basin to a depth of six (6) inches below visible signs of contamination.
10. All submittals required by this Agreed Order, unless notified otherwise in
writing, shall be sent to:
Richard R. Milton, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
11. Respondent is assessed a civil penalty of Twenty One Thousand Five Hundred and Fifty Dollars ($21,550). Respondent shall pay a portion of this penalty in the amount of Eighteen Thousand and Fifty Dollars ($18,050) which shall be payable in eight (8) equal installments. The first installment of Two Thousand Two Hundred Fifty Six Dollars and Twenty Five Cents ($2,256.25) shall be due within thirty (30) days of the Effective Date of this Agreed Order. All subsequent installments of the same amount ($2,256.25) shall be due within ninety (90) days of the preceding on-time installment until the penalty is paid in full. Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty ($3,500), Respondent shall perform and complete a Supplemental Environmental Project (“SEP”). Respondent estimates that this SEP will cost Seven Thousand Dollars ($7,000). Within thirty (30) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than $7,000, Respondent shall pay 100% of the difference between the proposed cost of the SEP ($7,000) and the actual cost of the SEP.
As a Supplemental Environmental Project, Respondent shall purchase and install a solvent still for the recovery of used lacquer thinner (Attachment "A"). Respondent shall install the solvent still within six (6) months of the Effective Date of this Agreed Order.
In the event that the
Respondent does not complete the SEP by the approved time frame, the full amount of the civil penalty as stated in paragraph
11 above, plus interest
established by IC 24-4.6-1-101 on the remaining amount, less the portion of
the civil penalty Respondent has already paid, will be due within fifteen (15) days
from Respondent's receipt of IDEM’s notice to pay. Interest, at the rate established
by IC 24-4.6-1-101, shall be calculated on the amount due from the date
which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.
12. In the event the terms and conditions of the following paragraph 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 9 $500 per/week
13. 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
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 or according to the payment schedule, 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 payment 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.
19. 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 _______________, 2004.
For the Commissioner:
Signed 6/11/04
___________________________
Felicia A. Robinson
Deputy Commissioner for
Legal Affairs