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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. CORN ISLAND SHIPYARD,
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 Corn Island Shipyard, Inc. (“Respondent”), which owns and/or operates a
company with U.S. EPA I.D. number INR 000008524, located at 8735 Hwy. 66 East,
in Grandview, Spencer County, Indiana (the “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 via Certified Mail to:
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Don Foertsch, President and Registered Agent |
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Corn Island Shipyard, Inc. |
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8735 Hwy. 66 East |
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5. Respondent
last notified the U.S. EPA of Large Quantity Generator activities on February
6, 2007.
6. Respondent
manufactures special service vessels, barges, casino platforms, dry docks, dump
scows, and specialized marine products for both ocean service and inland
waterway service.
7. 329 IAC 3.1 incorporates certain
federal hazardous waste management requirements found in 40 CFR Parts 260
through 270 and Part 273, including those identified below.
8. During
an investigation, including an inspection on March 21, 2007, 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.
As
noted during the inspection, Respondent accumulated hazardous waste on-site,
without a permit, and did not mark a hazardous waste container with an accumulation
start 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 the containers are labeled or
marked clearly with the words "Hazardous Waste."
As
noted during the inspection, Respondent accumulated hazardous waste on-site,
without a permit, and did not label or clearly mark a hazardous waste container
with the words "Hazardous Waste."
c. Pursuant
to 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.
As
noted during the inspection, Respondent did not store a container of hazardous
waste closed.
d. Pursuant
to 40 CFR 262.34(a)(4) referencing 40 CFR 265.52, a facility’s contingency plan
must include certain information.
As
noted during the inspection, Respondent's contingency plan did not include all
of the required information. Randy
Schaefer was not identified as an alternate hazardous waste emergency
coordinator in the hazardous waste contingency plan.
e. Pursuant
to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(1-4), certain hazardous
waste training related documents and records must be maintained on-site.
As
noted during the inspection, Respondent did not maintain all of the required
hazardous waste training related documents and records on-site. Respondent had not maintained an annual
refresher training record for Tom Hauser, who is involved in hazardous waste
management activities and is the hazardous waste emergency coordinator.
f. Pursuant
to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of
any contaminants or solid waste upon the land, except through the use of sanitary
landfills, incineration, composting, garbage grinding, or another method
acceptable to the solid waste management board.
As
noted during the inspection, Respondent caused and/or allowed the deposit of
contaminants and/or solid wastes upon the land in a method unacceptable to the
solid waste management board at two (2) areas adjacent to the
g. Pursuant
to IC 13-30-2-1(5), no person shall dump or cause or allow the open dumping of
garbage or any other solid waste in violation of 329 IAC 10-4-2 and 329 IAC
10-4-3.
As noted during the inspection, Respondent dumped and/or caused or allowed the
open dumping of solid wastes in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
h. Pursuant
to 329 IAC 10-4-2, no person shall cause or allow the storage, containment,
processing, or disposal of solid waste in a manner which creates a threat to
human health or the environment, including the creating of a fire hazard,
vector attraction, air or water pollution, or other contamination.
As
noted during the inspection, Respondent caused and/or allowed spent burning
table slag and spent sandblasting grit to be disposed at the Site in a manner
which creates a threat to human health or the environment.
i. Pursuant
to 329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in
IC 13-11-2-146 and IC 13-11-2-147, are prohibited.
As
noted during the inspection, Respondent caused and/or allowed spent burning
table slag and spent sandblasting grit to be open dumped at the Site.
j. Pursuant
to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any mode of
transportation or facility from which a spill occurs shall, upon discovery of a
reportable spill to the soil or surface waters of the state, do the following:
A. contain
the spill, if possible, to prevent additional spilled material from entering
the waters of the state.
B. undertake
or cause others to undertake activities needed to accomplish a spill response.
C. as
soon as possible, but within two hours of discovery, communicate a spill report
to the Department of Environmental Management, Office of Environmental Response
at 1-888-233-7745.
D. submit
to the Department of Environmental Management a written copy of the spill
report, if requested in writing by the department.
E. except
from modes of transportation other than pipelines, exercise due diligence and
document attempts to notify the following:
i. for
spills to surface water that cause damage, the nearest affected downstream
water user located within ten miles of the spill and in the state of
ii. for
spills to soil outside the facility boundary, the affected property owner or
owners, operator or operators, or occupant or occupants.
As
noted during the inspection, Respondent’s failure to contain and/or report the
spills of spent burning table slag and spent sandblasting grit to IDEM in a
timely manner was in violation of 327 IAC 2-6.1-7.
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 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 40 CFR
262.34(a)(2). Specifically, Respondent
shall ensure that the date when the accumulation begins is clearly marked and
visible for inspection on each container holding hazardous waste.
3. Upon
the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR
262.34(a)(3). Specifically, Respondent
shall ensure that each container holding hazardous waste is labeled or marked
clearly with the words "Hazardous Waste."
4. Upon
the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR
265.173(a). Specifically, Respondent
shall ensure that containers holding hazardous waste are kept closed during
storage, unless necessary to add or remove waste.
5. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
comply with 40 CFR 265.52. Specifically,
Respondent shall submit an updated contingency plan to IDEM, including Randy
Schaefer identified as an alternate hazardous waste emergency coordinator.
6. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
comply with 40 CFR 265.16(d)(1-4).
Specifically, Respondent shall submit updated annual refresher training
records for Tom Hauser.
7. Within
thirty (30) 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 areas of concern which include those areas described in Findings of Fact
Nos. 8.f. through 8.j. above 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.
8. 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.
9. 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.
10. 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 work plan time frames for its implementation.
11. Within
fifteen (15) days of approval by IDEM of the remediation work plan, Respondent
shall implement the plan as approved and in accordance with the time frames
contained therein.
12. 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.
13. 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.
14. Upon
the Effective Date of this Agreed Order, Respondent shall comply with 327 IAC
2-6.1-7 upon discovery of a reportable spill to the soil or surface waters of
the state.
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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Kris
Mangold, 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 Nine Thousand Four Hundred Dollars ($9,400). 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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Failure
to comply with Order paragraph no. 5 |
$250
per week |
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Failure
to comply with Order paragraph no. 6 |
$250
per week |
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Failure
to comply with Order paragraph no. 7 |
$1,000
per week |
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Failure
to comply with Order paragraph no. 8 |
$500
per week |
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Failure
to comply with Order paragraph no. 9 |
$500
per week |
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Failure
to comply with Order paragraph no. 10 |
$500
per week |
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Failure
to comply with Order paragraph no. 11 |
$500
per week |
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Failure
to comply with Order paragraph no. 12 |
$500
per week |
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Failure
to comply with Order paragraph no. 13 |
$500
per week |
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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 its obligation to comply with
the requirements of its 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 Return to Compliance
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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By: |
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Nancy L. 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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OF |
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, 2007. |
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For the Commissioner: |
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Signed on October 29, 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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