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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. REA MAGNET WIRE COMPANY,
INC., Respondent. |
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AGREED ORDER
Complainant and 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 (“IDEM”), a department of the State of
2.
Respondent is Rea
Magnet Wire Company, Inc. (“Respondent”), which owns/operates the facility with
United States Environmental Protection Agency (EPA) ID No. IND078904729, located
at
3.
IDEM has
jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC
13-30-3-3, IDEM issued a Notice of Violation on November 14, 2006 via Certified
Mail to.
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Mr. Larry E. Bagwell, President |
CT Corporation System, Registered Agent |
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Rea Magnet Wire Company, Inc. |
Rea Magnet Wire Company, Inc. |
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5.
Respondent updated
its notification to the U.S. EPA of Large Quantity Generator activities on
February 14, 2006.
6.
Respondent draws
and coats copper and aluminum wire for use in large electric motors and
automotive applications.
7.
329 IAC 3.1
incorporates certain Federal hazardous waste management requirements found in
40 CFR Parts 260 through 273, including those identified below.
8.
During an
investigation, including an inspection on April 27, 2006, conducted by a representative of IDEM, the following violations
were found:
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. Respondent did not label two (2) fifty-five
gallon containers of spent enamel with an accumulation start date.
Respondent correctly labeled the containers at the time of the inspection.
b. Pursuant
to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, a generator must maintain
adequate aisle space to allow the unobstructed movement of personnel, fire
protection, spill control, and decontamination equipment. Spill response kits and emergency response
equipment were inaccessible due to inadequate aisle space in the container
storage.
Respondent provided adequate aisle space in the container storage area at the
time of the inspection.
c. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.192(a), a generator with a
new tank system must have integrity assessment certified by an independent,
qualified, registered, professional engineer in accordance with 40 CFR
270.11(d) attesting that the system has sufficient structural integrity. Respondent did not provide the required
integrity assessment of the ancillary equipment for the 13,500-gallon phenol
wastewater tank located in the boiler room.
Respondent took the 13,500-gallon phenol wastewater tank out of service as a
hazardous waste tank by implementing procedures to prevent hazardous waste from
entering the tank on or before March 9, 2007.
d. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.192(d), all tanks and
ancillary equipment must be tested for tightness before being covered,
enclosed, or placed into use. Respondent
did not test the ancillary equipment for the 13,500-gallon phenol wastewater
tank.
Respondent took the 13,500-gallon phenol wastewater tank out of service as a
hazardous waste tank by implementing procedures to prevent hazardous waste from
entering the tank on or before March 9, 2007.
e. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.193(e)(2)(vi), a vault system
must be provided with an exterior moisture barrier or be otherwise designed or
operated to prevent migration of moisture into the vault if the vault is
subject to hydraulic pressure.
Respondent failed to provide an exterior moisture barrier for the
13,500-gallon phenol wastewater tank secondary containment vault.
Respondent took the 13,500-gallon phenol wastewater tank out of service as a
hazardous waste tank by implementing procedures to prevent hazardous waste from
entering the tank on or before March 9, 2007.
f. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.193(f), ancillary equipment
must be provided with full secondary containment that meets the requirements of
40 CFR 265.193(b) and (c) except for ancillary equipment that is visually
inspected on a daily basis. Respondent
failed to provide secondary containment for the 13,500-gallon phenol wastewater
tank’s ancillary equipment and failed to conduct daily visual inspections of
the same equipment.
Respondent took the 13,500-gallon phenol wastewater tank out of service as a
hazardous waste tank by implementing procedures to prevent hazardous waste from
entering the tank on or before March 9, 2007.
g. Pursuant
to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 256.195, a generator must inspect
tank systems once each operating day.
Respondent did not conduct the required daily visual inspections of the
13,500-gallon phenol wastewater tank’s ancillary equipment.
Respondent took the 13,500-gallon phenol wastewater tank out of service as a
hazardous waste tank by implementing procedures to prevent hazardous waste from
entering the tank on or before March 9, 2007.
9.
In recognition
of the settlement reached, Respondents 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 Complainant
or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall
comply with 40 CFR 262.34(a)(2).
Specifically, Respondent shall label all hazardous waste containers with
the accumulation start date.
3.
Respondent shall
comply with 40 CFR 262.34(a)(4) referencing 40 CFR 265.35. Specifically, Respondent shall ensure
adequate aisle space to allow the unobstructed movement of personnel, fire
protection, spill control and decontamination equipment.
4.
Upon the
Effective Date of the Order, Respondent shall ensure that it complies with the
provisions of 40 CFR 265, Subpart J for new and existing tanks used at the
facility for the accumulation of hazardous waste.
5.
Immediately upon
the Effective Date, Respondent shall begin investigating the source of benzyl
alcohol contamination found in analysis from staining on the interior walls of
the 13,500-gallon phenol wastewater secondary containment vault.
6.
Within ninety
(90) days of the Effective Date, Respondent shall submit a written report
detailing the findings from the investigation of the benzyl alcohol source and
the steps taken to remove the contamination from the interior walls of the
vault.
7.
If the source of
benzyl alcohol is found to be from soil or groundwater contamination outside of
the secondary containment vault then a Site Assessment Plan will be required as
outlined in Order paragraph 8 though 14 below.
8. If
indicated by the benzyl alcohol investigation required in Order paragraph 5
above, Respondent shall submit to IDEM a site assessment plan within one
hundred and twenty (120) days of the Effective Date of this Agreed Order. 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
outside of the 13,500-gallon phenol wastewater secondary containment vault 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 all areas of potential contamination in and around each area of
concern.
b. Specify
the method of determining the number and location of samples to be taken to
yield a representative assessment of each 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.
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
fifteen (15) 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 analytical results, Respondent shall submit
said 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 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.
15. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Linda
L. McClure, Enforcement Case Manager |
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Office
of Enforcement – Mail Code 60-02 |
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Indiana
Department of Environmental Management |
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16. Respondent
is assessed a civil penalty of Fourteen Thousand Dollars ($14,000). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. In the event that the
civil penalty is not paid within thirty (30) days of the Effective 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.
17. In the
event the terms and conditions of the following paragraphs are violated,
Complainant may assess and Respondent shall pay a stipulated penalty in the
following amount:
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Paragraph |
Violation |
Stipulated
Penalty |
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6 |
Failure to submit source investigation report |
$100 per week late |
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8 |
Failure to submit Site Assessment Plan |
$100 per week late |
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9 |
Failure to implement approved Site
Assessment Plan |
$250 per week late |
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14 |
Failure to submit a revised Site
Assessment Plan or Remediation Plan, if required, within
the given time period |
$100 per week late |
18. Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, 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
– Mail Code 50-10C |
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20. This
Agreed Order shall apply to and be binding upon Respondent and its successors
and assigns. Respondent’s signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership, corporate, or partnership
status of Respondent shall in any way alter its status or responsibilities under
this Agreed Order.
21. In the
event that any terms of this 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 this Agreed Order did not contain the invalid terms.
22. 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.
23. This Agreed Order is not
and shall not be interpreted to be a permit or a modification of an existing
permit. This Agreed Order, and IDEM’s
review or approval of any submittal made by Respondent pursuant to this Agreed
Order, shall not in any way relieve Respondent of their obligation to comply
with the requirements of their applicable permits or any applicable Federal or
State law or regulation.
24. Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that Respondent’s
compliance with any aspect of this Agreed Order will result in compliance with
the provisions of any permit, order, or any applicable Federal or State law or
regulation. Additionally, IDEM or anyone
acting on its behalf shall not be held liable for any costs or penalties
Respondent may incur as a result of Respondent’s efforts to comply with this
Agreed Order.
25. Nothing in this Agreed
Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive
relief under any applicable Federal or State law or regulation, except that
IDEM may not, and hereby waives its right to, seek additional civil penalties
for the same violations specified in the NOV.
26. Nothing in this Agreed
Order shall prevent IDEM, or anyone acting on its behalf, from communicating
with the EPA or any other agency or entity about any matters relating to this enforcement
action. IDEM or anyone acting on its
behalf shall not be held liable for any costs or penalties Respondent may incur
as a result of such communications with the EPA or any other agency or entity.
27. This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondents.
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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 Johnston, Section Chief |
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Printed: |
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Office of Enforcement |
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Title: |
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Date: |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: |
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By: |
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Deputy Attorney General |
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Date: |
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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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, 2007. |
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For the Commissioner: |
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Signed on December 4, 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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