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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. ODLE, INC., Respondent. |
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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.
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 Odle, Inc. ("Respondent"), which
owns and operates the facility located at
3. The
4. Pursuant to IC 13-30-3-3, on April 20, 2005, IDEM issued a
Notice of Violation via Certified Mail to:
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Mr. John S. Linder,
President and Registered Agent |
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Odle, Inc. |
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5. Respondent is a non-notifier. Respondent is an industrial painting company
that does cleaning, sand blasting, painting, and industrial floor coating
applications.
6. An inspection on October 2 and October 7, 2003, was conducted
at the Site by a representative of IDEM’s Office of Land Quality (“OLQ”). A record review was conducted on March 28,
2005. The following violations were in
existence or observed at the time of this inspection and record review:
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:
1)
approximately seventy-two (72) 55-gallon containers located
outside on the north side of the property,
2)
approximately seventy-two (72) 30-gallon containers located
outside on the north side of the property,
3)
approximately one hundred twenty-eight (128) 5-gallon
containers located outside on the north side of the property,
4)
approximately one hundred thirty-five (135) 1-gallon
containers located outside on the north side of the property,
5)
unknown number of small containers located outside on the
north side of the property,
6)
eight (8) 55-gallon containers located outside on the west
side of the building,
7)
approximately twenty (20) 55-gallon containers located
outside on the southwest side of the property,
8)
approximately sixteen (16) 30-gallon containers located
outside on the southwest side of the property, and
9)
approximately forty (40) containers of various sizes located
outside on the southwest side of the property,
which were solid wastes
generated by Respondent.
On March 28, 2005, Respondent notified IDEM that waste determinations
had been made on the above items. Respondent
provided bills of lading to document the disposal of 140 containers of
hazardous waste.
b. Pursuant to 40 CFR 262.20, a generator who transports or
offers for transportation, hazardous waste for off-site treatment, storage, or
disposal, must prepare a manifest.
Respondent transported 140 containers of hazardous waste off-site
without preparing a manifest.
c. Pursuant to IC 13-30-2-1(12), a person may not cause or
allow the transportation of a hazardous waste without a manifest if a manifest
is required by law. Respondent caused or
allowed the transportation of 140 hazardous waste containers without a
manifest.
d. Pursuant to 40 CFR 268.7(a), a generator of hazardous waste
must determine if the waste has to be treated before it can be land disposed. Respondent failed to determine if 140
containers of hazardous waste had to be treated before land disposal.
On July 20, 2005, Respondent provided documentation
to IDEM that a land disposal determination was made for the 140 containers of
hazardous waste.
e. Pursuant to 40 CFR 268.7(a)(3)(i), if a generator determines
that a waste meets the treatment standard, the generator must send a one-time
notification to each treatment, storage, or disposal facility receiving the
waste, and place a copy in the file.
Respondent failed to send a one-time notification.
On July 20, 2005, Respondent provided documentation
to IDEM that a one-time notification was sent to the disposal facility.
f. 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 hazardous waste generator activities.
g.
Pursuant to 40 CFR 262.34(a) a generator may accumulate
hazardous waste on-site for 90 days or less without a permit provided that the
generator complies with certain Large Quantity Generator requirements. The requirements include, but are not limited
to, 40 CFR 265.32, 40 CFR 265.34, 40 CFR 265.37, 40 CFR 265.16(a), (b), &
(c), 40 CFR 265.51, 40 CFR 265.53, and 40 CFR 265.174. Respondent failed to comply with Large
Quantity Generator requirements.
h. 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 hazardous
waste to the air, soil, or surface water, which could threaten human health or
the environment. Respondent failed to
properly manage waste solvent and paint related materials located outside the
facility to minimize a release to the environment.
i. 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 40 CFR 265.31.
Respondent allowed the following releases:
1.
waste solvent and waste paint related materials released
onto the ground outside the facility in the north waste storage area in the
locations designated on Attachment A, and
2. diesel fuel which was allowed to leak from a 55-gallon
container labeled “diesel fuel” located outside on the west side of the
building.
Respondent contends that the “diesel fuel” release
outside on the west side of the building has been remediated. The remedial activities must still be field
verified by IDEM.
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 his delegate, and has
been received by the Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
2. Respondent shall comply with 40 CFR 262.40 and IC
13-30-2-1(12). Specifically, Respondent
shall prepare a manifest for all hazardous waste transported off-site for
treatment, storage, or disposal.
3. Respondent shall comply with 40 CFR 268.7(a). Specifically, Respondent shall, for all
hazardous waste generated at the facility, determine if the waste must be
treated before land disposal.
4. Respondent shall comply with 40 CFR 268.7(a)(3)(i). Specifically, Respondent shall send a
one-time notification to each treatment, storage, or disposal facility
receiving waste for each hazardous waste that the generator determines meets
the treatment standard.
5.
Respondent shall comply with 329 IAC 3.1-1-10. Specifically, Respondent shall notify the
Commissioner of its hazardous waste activity on the approved forms.
6. Respondent shall comply with 40 CFR 262.34(a). Specifically, Respondent shall not operate as
a Large Quantity Generator of hazardous waste without complying with Large
Quantity Generator requirements.
7.
Respondent shall comply with 40 CFR 262.34(a)(4) referencing
40 CFR 265.31. Specifically, Respondent
shall maintain and operate the facility to minimize the possibility of a
release to the environment.
8. Within forty-five (45) days of the Effective Date of this
Agreed Order, Respondent shall submit to IDEM a site assessment plan. The purpose of the site assessment plan shall
be to conduct sampling and analysis in order to assess potential soil and
ground water contamination from the area of concern which includes the area
described in Finding of Fact 6.i.1. and, if necessary, the nature and extent of contamination.
The site assessment plan shall be based upon the principles outlined
within IDEM’s Risk Integrated System of Closure (RISC) Technical Resource
Guidance Document (“TRGD”), dated February 15, 2001, which can be accessed at:
http://www.IN.gov/idem/land/risc. In
addition, the site assessment plan shall:
a. Describe and evaluate the area of potential contamination
described in Finding of Fact 6.i.1.
b. Specify the method of determining the number and location of
samples to be taken to yield a representative assessment of the area of
concern. This method shall be:
1. random sampling, pursuant to Section 3.4 of Chapter 3 of the TRGD; or
2. directed sampling, pursuant to Section 3.4 of Chapter 3 of
the TRGD; and
3. developed to provide locations and methods of any ground
water samples pursuant to Section 3.4 of Chapter 3 of the TRGD.
The Subsurface Screening Clarification for RISC
Technical Guide, which can be accessed at:
http://www.in.gov/idem/land/risc/recent_updates/pdfs/screening.pdf, clarifies
the subsurface screening options for volatile compounds. Respondent may use the Water Sample Option or
the Volatile Field Screening Option.
Both options require that at least one groundwater screening sample be
taken.
c. Specify how the soil samples will be obtained and handled in
order to minimize loss of volatile constituents. Respondent may composite samples of
non-volatiles (i.e., metals and semi-volatiles), but shall not composite
samples of volatiles, pursuant to Section 3.4 of Chapter 3 of the TRGD.
d. Specify how the ground water samples will be obtained and
describe the sampling procedures.
e. Clearly
define all sampling and analytical protocols designed to identify hazardous
waste or its constituents, pursuant to 40 CFR Part 261, including 40 CFR Part
261 Appendices I, II, III, and VIII. The
site assessment plan shall include the method of sample collection, pursuant to
“Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA
Publication SW-846. This includes, but
is not limited to, sample collection containers, preservatives, and holding
times. Specify the analytical methods to
be used and the method’s Estimated Quantitation Limits (EQLs).
f. Specify
that chain-of-custody of the samples shall be maintained and Quality Assurance
and Quality Control (“QA/QC”) procedures shall be followed, pursuant to
Appendix 2 of the TRGD.
g. Include within the site assessment plan a supplemental
contingent plan for determining the nature and extent of:
1. soil contamination, as
specified in Chapter 4 of the TRGD, in the event that sampling and analysis indicates
soil contamination to exist above default residential levels as specified in
Table A, Appendix I, of the TRGD; and
2. ground water contamination in the event that sampling and
analysis indicates hazardous waste or its constituents are detected in the
ground water as specified in Chapter 4 of the TRGD.
h. Include
within the site assessment plan time frames for its implementation.
i. Be approved by IDEM prior to its implementation.
9. Within thirty (30) days of receiving notice from IDEM of
approval of the site assessment plan, Respondent shall implement it as approved
and in accordance with the time frames contained therein.
10. Within fifteen (15) days of obtaining the complete analytical
results, Respondent shall submit the analytical results, including
chain-of-custody information, and QA/QC records, pursuant to Appendix 2 of the
TRGD, to IDEM.
11. If soil or ground water contamination is identified,
Respondent shall submit within sixty (60) days subsequent to the completion of
the analyses, a remediation workplan to IDEM for the purpose of remediating all
soil and/or ground water contamination.
The remediation workplan shall:
a. In accordance with Chapter 6 of the TRGD, remediate each
contaminated area to closure. Closure
levels shall be one of the following:
1. default residential levels, pursuant to Table A, Appendix I,
in the TRGD; or
2. commercial/industrial default values (if appropriate to the
facility), pursuant to Table A, Appendix I, in the TRGD. Ground water shall meet residential default
values at the property boundary or control; or
3. closure levels for soil can also be established using the
non-default procedures presented in Chapter 7 of the RISC Technical
Guide. The alternate cleanup level
proposal must document that the constituents left in soil will not adversely
impact any other environmental medium (ground water, surface water, or
atmosphere) and that direct contact through dermal exposure, inhalation, or
ingestion will not result in threats to human health or the environment; or
4. background levels for metals, pursuant to Section 1.6 of
Chapter 1 of the TRGD, and/or the analytical method’s estimated quantitation
limits (“EQLs”) for organics.
b. Include a soil and/or a ground water sampling and analysis plan
to be performed after the cleanup has been performed which verifies that all
contamination has been removed.
c. Include within the remediation workplan time frames for its
implementation.
12. Within fifteen (15) days of approval by IDEM of the remediation
workplan, Respondent shall implement the plan as approved and in accordance
with the time frames contained therein.
13. Within thirty (30) days of completion of the remedial action
conducted pursuant to the remediation workplan, Respondent shall submit to IDEM
certification by an independent registered professional engineer that the
remedial action has been completed as outlined in the approved remediation
workplan.
14. In the event IDEM determines that any plan submitted by
Respondent does not comply with the requirements in Paragraphs 8 or 11,
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. The modified and approved plan is a Final
Agency Action subject to IC 4-21.5.
15. All submittals required by this Agreed Order, unless notified
otherwise in writing, shall be sent to:
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Ms. Lori A. Colpaert, Enforcement Case Manager |
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Indiana Department of Environmental Management |
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Office of Enforcement Mail Code 60-02 |
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16. Respondent is assessed a civil penalty of Eighteen Thousand
Dollars ($18,000). 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
17. 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:
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Violation |
Penalty |
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Failure to comply with Order paragraph 8 |
$500 per week |
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Failure to comply with Order paragraph 9 |
$500 per week |
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Failure to comply with Order paragraph 10 |
$500 per week |
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Failure to comply with Order paragraph 11 |
$500 per week |
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Failure to comply with Order paragraph 12 |
$500 per week |
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Failure to comply with Order paragraph 13 |
$500 per week |
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Failure to comply with Order paragraph 15 |
$500 per week |
18. 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.
19. 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:
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Indiana Department of Environmental Management |
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Cashier’s Office - Mail Code 50-10C |
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20. In the event that the civil penalty required by Order
paragraph 16 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.
21. 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.
22. 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.
23. 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.
24. This Agreed Order shall remain in effect until IDEM issues a
Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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By: |
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Nancy L. Johnston, Chief |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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Office of Legal Counsel |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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, 200 |
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For The Commissioner: |
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Signed on May 1, 2006 |
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Matthew T. Klein |
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Assistant Commissioner for |
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Compliance and Enforcement |
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