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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. COLWELL, 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. 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 Colwell, Inc. ("Respondent"), which
owns and/or operates the facility with U.S. EPA ID No.
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 August 1, 2006, IDEM issued a
Notice of Violation via Certified Mail to:
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WM Byars, President |
CT Corporation System,
Registered Agent for |
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Colwell, Inc. |
Colwell, Inc. |
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5.
Respondent notified the U.S. EPA of Large Quantity Generator
activities on April 12, 1989. Respondent
manufactures paint color merchandising tools and paint product samples for
retail sale.
6.
An inspection on May 30, 2006, 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 262.34(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.
As noted during the inspection, Respondent did not
label containers with accumulation start dates.
Nine (9) 20-gallon drums and two (2) 55-gallon drums were not marked
with a start of accumulation date.
Respondent provided documentation to IDEM on August
18, 2006, demonstrating that containers holding hazardous waste are being
marked with a start of accumulation date.
B. 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."
As noted during the inspection, Respondent did not
label containers with the words "Hazardous Waste." Nine (9) 20-gallon drums were not marked
with the words “Hazardous Waste.”
Respondent provided documentation to IDEM on August
18, 2006, demonstrating that containers holding hazardous waste are being
marked with the words “Hazardous Waste.”
C. 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 that identify the contents of the containers.
As noted during the inspection, Respondent
accumulated waste in satellite accumulation containers that were not marked
with the words “Hazardous Waste” or with other words identifying the contents
of the containers. One (1) 20-gallon
satellite container of waste paint and solvent under the drum crusher was not
marked with either the words “Hazardous Waste” or with other words that
identified the contents of the containers.
Respondent provided documentation to IDEM on August
18, 2006, demonstrating that satellite containers holding hazardous waste are
being marked with the words “Hazardous Waste.”
D. Pursuant to 40 CFR 262.34(a)(1)(i) and/or 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.
As noted during the inspection, Respondent did not
store containers holding hazardous waste closed. One (1) 20-gallon drum of waste paint and
solvent in the drum crushing area and one (1) 20-gallon drum of waste paint and
solvent under the crusher were stored open.
Respondent provided documentation to IDEM on August
18, 2006, demonstrating that containers holding hazardous waste are being kept
closed except when necessary to add or remove waste.
E. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a),
(b), & (c), 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. Employees must be trained within six (6)
months after their date of hire and must take part in an annual review of the
initial training.
As noted during the inspection, Respondent did not
provide one (1) employee with initial training and one (1) employee with annual
training. Ilyas Tak had not been provided
with initial training within six (6) months of assuming a position involving
management of hazardous waste and Jesse Munoz had not been provided with an
annual review of the hazardous waste management procedures that are relevant to
his position.
Respondent provided records and information to IDEM
on August 18 and November 30, 2006, indicating that both employees had received
the necessary training, even though the records were not available at the time
of the inspection.
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.
Upon the Effective Date of this Agreed Order, Respondent
shall ensure compliance with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that
containers holding hazardous waste are provided with start of accumulation
dates.
3.
Upon the Effective Date of this Agreed Order, Respondent
shall ensure compliance with 40 CFR 262.34(a)(3) and 40 CFR
262.34(c)(1)(ii). Specifically,
Respondent shall ensure that containers holding hazardous waste are marked with
the words “Hazardous Waste.”
4.
Upon the Effective Date of this Agreed Order, Respondent
shall ensure compliance with 40 CFR 265.173(a).
Specifically, Respondent shall ensure that containers holding hazardous
waste are stored closed except when necessary to add or remove waste.
5.
Upon the Effective Date of this Agreed Order, Respondent
shall ensure compliance with 40 CFR 265.16.
Specifically, Respondent shall ensure that employees handling hazardous
waste are provided with the required training.
6.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
Brenda Lepter, Enforcement Case Manager
Indiana Department of Environmental Management
Office of Enforcement - Mail Code 60-02
7.
Respondent is assessed a civil penalty of Eight Thousand Two
Hundred Dollars ($8,200). Said penalty
amount shall be due and payable to the Environmental Management Special Fund in
four (4) installments of $2,050 each.
The first installment shall be due within thirty (30) days of the
Effective Date of this Agreed Order; the second installment shall be due on or
before April 30, 2007; the third installment shall be due on or before July 31,
2007; and the final installment shall be due on or before October 31, 2007.
8.
The civil penalty is payable by check to the Environmental
Management Special Fund. Checks shall
include the Case Number of this action and shall be mailed to:
Indiana Department of Environmental Management
Cashier’s Office - Mail Code 50-10C
9.
In the event that the civil penalty required by Order
paragraph 7 is not paid according to the terms 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.
10.
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.
11.
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.
12.
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.
13.
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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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 January 3, 2007 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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