STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

SPERRY & RICE MANUFACTURING COMPANY, LLC,

Respondent.

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Case No. 2006-16322-H

 

 

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.

 

I.  FINDINGS OF FACT

 

1.                  Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is Sperry & Rice Manufacturing Company, LLC (“Respondent”), which owns/ operates the facility with United States Environmental Protection Agency (EPA) ID No. IND000815951, located at 9146 U.S. 52, in Brookville, Franklin County, Indiana (“Site”).

 

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 December 21, 2006 via Certified Mail to:

 

Mr. James R. Gregory, Registered Agent

Sperry & Rice Manufacturing Company, Inc.

9146 U.S. 52

Brookville, Indiana 47012

 

5.                  Respondent notified EPA of Conditionally Exempt Small Quantity Generator activities on January 7, 1988.

 

6.                  Respondent is a manufacturer and extruder of rubber, plastic and sponge parts serving customers in automotive, appliance, casket and other industries.

 

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 October 11, 2006, conducted by a representative of IDEM, the following violations were found:

 

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 a hazardous waste determination on two (2) 55-gallon containers, located outside and behind the facility.

Respondent completed a hazardous waste determination on the two 55-gallon containers on or before January 19, 2007.

 

b.         Pursuant to 40 CFR 262.34(f), a generator who generates greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month and who accumulates hazardous waste for more than 180 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 hazardous waste on-site for greater than 180 days without complying with 40 CFR Part 264 and 40 CFR Part 270.  Specifically, Respondent stored waste solvent in a 2,000 gallon above ground storage tank.

 

Respondent contracted the removal and disposal of the waste solvent in the 2,000 gallon above ground storage tank on or before January 19, 2007.

 

c.         Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 180 days or less without a permit, provided that the tanks or containers are marked with the words "Hazardous Waste."  Respondent did not label a 2,000 gallon waste solvent tank and one (1) 55-gallon waste solvent container with the words "Hazardous Waste."

Respondent labeled the container as required on or before January 19, 2007.  Respondent removed the waste solvent from the tank on or before January 19, 2007.

 

 

d.         Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for 180 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 one (1) 55-gallon container of waste solvent with an accumulation start date.

Respondent labeled the container as required on or before January 19, 2007.

 

e.         Pursuant to 40 CFR 262.34(d)(3) referencing 40 CFR 265.201(c), a generator with a tank system must inspect it at least once each operating day.  Respondent did not conduct required inspections on the 2,000 gallon waste solvent tank.

 

f.          Pursuant to IC 13-30-2-1(3), no person shall deposit any contaminants upon the land in a place or manner that creates or would create a pollution hazard that violates or would violate 40 CFR 265.31.  Specifically, the area outside of the Banbury Department was visibly contaminated with black material and the area around the dust collector was visibly contaminated with both black and gray material.

Respondent documented on January 19, 2007, that the material outside the Banbury Department and around the dust collector was non-hazardous.

 

9.         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 Complainant or Complainant’s delegate, and has been received by Respondents.  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 submit four (4) copies of a hazardous waste closure plan for the 2,000 gallon waste solvent above ground storage tank system 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.

 

3.         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.

 

4.         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.

 

5.         Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit a Plan to IDEM, for approval, describing the process and method to remove the visible Carbon Black contamination from the area outside of the Banbury Department and the area around the dust collector.

 

6.         Within ten (10) days of notice of IDEM’s approval of the plan, required in Section II, Paragraph 5 of this Order, Respondent shall implement the plan as approved and in accordance with the time frames contained therein.

 

7.         Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit a Plan to IDEM, for approval, describing the process and method to minimize future Carbon Black releases in the area outside of the Banbury Department and the area around the dust collector.

 

8.         Within ten (10) days of notice of IDEM’s approval of the plan, required in Section II, Paragraph 7 of this Order, Respondent shall implement the plan as approved and in accordance with the time frames contained therein.

 

9.         All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Linda L. McClure, Enforcement Case Manager

Office of Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

10.       Respondent is assessed a civil penalty of Fourteen Thousand and Eight Hundred Dollars ($14,800).  Said penalty amount shall be due and payable to the Environmental Management Special Fund.  One Thousand Two Hundred and Seventy Dollars ($1,270) shall be due within thirty (30) days of the Effective Date of this Agreed Order.  The remaining Thirteen Thousand Five Hundred and Thirty Dollars ($13,530) shall be due in eleven (11) consecutive monthly payments of One Thousand Two Hundred and Thirty Dollars ($1,230) to begin sixty (60) days from the Effective Date of this Agreed Order.

 

11.       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:

 

Paragraph

Violation

Stipulated Penalty

2

Submit Closure Plan

$250 per week late

3

Implement Closure Plan

$100 per week late

5

Develop removal plan

$250 per week late

6

Implement removal plan

$100 per week late

7

Develop prevention plan

$250 per week late

8

Implement prevention plan

$100 per week late

 

12.       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.

 

13.       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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

14.       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.

 

15.       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.

 

16.       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.

 

17.       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 its obligation to comply with the requirements of its applicable permit or any applicable Federal or State law or regulation.

 

18.       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.

 

19.       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.

 

20.       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.

 

21.             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, Section Chief

 

Printed:

 

 

Office of Enforcement

 

Title:

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2007.

 

 

For the Commissioner:

 

 

 

Signed on July 27, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement