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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. Koch
originals, 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 Koch
Originals, Inc. (“Respondent”), which owns and operates the company with United
States Environmental Protection Agency (EPA) ID No. IND000807008, 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 via Certified Mail to:
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Albert W. Koch, President |
Louis J. Koch III, Registered Agent |
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Koch Originals, Inc. |
Koch Originals, Inc. |
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5.
Respondent
notified EPA of Large Quantity Generator activities on January 12, 2005.
6.
Respondent is a
manufacturer of wedding and party equipment.
Respondent conducts nickel, brass and trivalent chrome plating at the
Site.
7.
329 IAC 3.1
incorporates certain Federal hazardous waste management requirements found in 40
CFR Parts 260 through Part 270 and Part 273, including those identified below.
8.
During an
investigation, including an inspection on June 27, 2007, 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 hazardous waste determinations on several 55-gallon containers stored
outside near the wastewater treatment area which contained solid wastes
generated by Respondent.
Respondent determined after the inspection that the 55-gallon containers stored
outside near the wastewater treatment area contained non-hazardous Floc
Polymer.
b. Pursuant
to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must conduct
weekly inspections of container storage areas.
Respondent did not conduct weekly inspections of the container storage
area.
Respondent instituted a documented weekly inspection of the container storage
areas on September 27, 2007.
c.
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 labeled or marked
clearly with the words “Hazardous Waste.”
Respondent accumulated hazardous waste on-site, without a permit, and
did not label or clearly mark one (1) tote of wastewater treatment sludge in
the container storage area with the words “Hazardous Waste.”
Respondent labeled the one (1) tote of wastewater treatment sludge in the
container storage area with the words “Hazardous Waste” during the inspection.
d.
Pursuant to 40
CFR 262.34(a)(4) referencing 40 CFR 265.16, training records must include the
job description for each position at the facility related to hazardous waste
management, and annual training records.
Respondent's training records did not include the job descriptions of
personnel handing hazardous waste and did not include a record of required
annual training.
Respondent provided updated training records for each position at the facility related
to hazardous waste management which included a job description and updated
training records to IDEM on December 3, 2007.
f.
Pursuant to IC
13-30-2-1(1), no person shall discharge, emit, cause, allow, or threaten to 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 329 IAC 10-4-2 and 329 IAC 10-4-3. Respondent allowed wastewater treatment
sludge to be discharged to the ground around the two (2) 8,000 gallon tanks.
g. 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 329 IAC 10-4-2. Respondent
deposited wastewater treatment sludge on the ground around the two (2) 8,000
gallon tanks.
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. Respondent caused and/or allowed wastewater
treatment sludge to be disposed at the Site in a manner which creates a threat
to human health or the environment.
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”) three (3) business days after the
date this Agreed Order is signed by the Commissioner or the Commissioner’s
delegate. This Agreed Order shall have
no force or effect until the Effective Date.
2.
Respondent shall
comply with statutes and rules listed in the findings here and above at issue.
3. 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 area of concern which includes the area described in Finding of Fact No. 8(f),
(g) and (h) 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.
4. 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.
5. 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.
6. 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.
7. 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.
8 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.
9. 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.
10. Respondent
shall comply with 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174. Specifically, Respondent shall conduct weekly
inspections of the container storage area.
11.
Respondent shall
comply with 40 CFR 262.34(a)(3).
Specifically, Respondent shall label or mark containers of hazardous
waste with the words “Hazardous Waste”.
12. Respondent
shall comply with IC 13-30-2-1(1).
Specifically, Respondent shall cease allowing wastewater treatment sludge
to be discharged to the ground.
13. 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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14. Respondent
is assessed a civil penalty of Ten Thousand Dollars ($10,000). This penalty
reflects a significant reduction from the original proposed civil penalty based
upon evidence submitted to IDEM by Respondent which adequately demonstrated
Respondent’s inability to pay the original proposed civil penalty. The civil
penalty shall be paid in the following manner: Respondent shall make
twenty-three (23) civil penalty payments of Four Hundred Sixteen Dollars ($416)
and one (1) civil penalty payment of Four Hundred Thirty-Two Dollars
($432). A payment is due every thirty
(30) days with the first payment due and payable to the Environmental Management Special Fund within thirty (30) days of
the Effective Date. Interest shall
accrue on unpaid amounts 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.
15. 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 |
Penalty |
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Order # 3 |
$100 per week late |
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Order # 4 |
$500 per week late |
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Order # 5 |
$100 per week late |
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Order # 6 |
$100 per week late |
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Order # 7 |
$500 per week late |
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Order # 8 |
$100 per week late |
16. 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.
17. 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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18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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 Johnston, Section 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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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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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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OF |
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, 2008. |
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For the Commissioner: |
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Signed on October 24, 2008 |
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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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