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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2010-19034-H |
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MID-STATE CHEMICAL &
SUPPLY CORP., |
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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 Mid-State Chemical & Supply Corp. (“Respondent”), which owned and/or operated
the facility with United States Environmental Protection Agency ("EPA")
ID No. IND 039995121, 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 ("NOV") via
Certified Mail to:
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Paul J. Bosler, Jr., President |
Paul J. Bosler, Jr., Registered
Agent for |
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Mid-State Chemical & Supply
Corp. |
Mid-State Chemical & Supply
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5. Respondent
closed the facility in October 2008, leaving behind solid and hazardous wastes
in containers and bags. Prior to
closing, Respondent had operated as a chemical compound formulator at this Site
and had supplied industrial cleaning compounds.
6. Respondent
last notified the U.S. EPA of conditionally exempt small quantity generator
activities on August 23, 2005. At the
time of the facility's closing, Respondent had accumulated enough hazardous waste
on-site to be subject to the large quantity generator requirements of 40 CFR
262.
7. 329
a. Pursuant
to 40 CFR 262.11, a person who generates a solid waste must determine if that
waste is hazardous.
As noted during the inspections,
Respondent did not make hazardous waste determinations on the wastes left
behind on-site. Multiple containers on
the north and east sides of the property, as well as within the shipping and
receiving warehouse, had not had hazardous waste determinations made on their
contents.
Respondent presented information at
a settlement conference between the two parties on July 1, 2010 indicating
that, even though many of the containers were eventually shipped off as
containing hazardous wastes, company representatives had believed that their
contents could be used by a new owner once the Site was purchased.
b. Pursuant
to 40 CFR 270.1(c), a permit is required for the treatment, storage and
disposal of any hazardous waste as identified or listed in 40 CFR Part 261.
As noted during the inspections,
Respondent stored hazardous waste identified or listed in 40 CFR Part 261
without a permit. Numerous containers
holding hazardous wastes, located in the main shipping and receiving warehouse,
outside on the east side of the main building, and on the north side of the
property, were stored on-site for greater than 90 days without a permit.
Respondent provided IDEM with
documentation on November 1, 2010, demonstrating that the wastes on the north
side of the property were non-hazardous.
c.
Pursuant
to IC 13-30-2-1(10), a person may not commence or engage in the operation of a
hazardous waste facility without having first obtained a permit from the
department.
As noted during the inspections,
Respondent operated a hazardous waste facility without having first obtained a
permit from the department.
d.
Pursuant
to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or
operator of a hazardous waste facility shall notify the commissioner of its
hazardous waste activity on the approved forms.
As noted during the inspections,
Respondent failed to notify the Commissioner of hazardous waste storage
activities.
e. Pursuant
to 40 CFR 262.34(b), a generator who accumulates hazardous waste for more than
90 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 unless he has
been granted an extension to the 90 day period.
As noted during the inspections,
Respondent stored hazardous waste on-site for greater than 90 days without
complying with 40 CFR Part 264 and 40 CFR Part 270. Numerous containers holding hazardous wastes,
located in the main shipping and receiving warehouse, outside on the east side
of the main building, and on the north side of the property, were stored
on-site for greater than 90 days without a permit.
Respondent provided IDEM with
documentation on November 1, 2010, demonstrating that the wastes on the north
side of the property were non-hazardous.
e.
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 inspections,
Respondent accumulated hazardous waste on-site, without a permit, and did not
mark any hazardous waste containers stored for greater than 90 days and located
in the main shipping and receiving warehouse, outside on the east side of the
main building, and on the north side of the property with accumulation start
dates.
Respondent provided IDEM with
documentation on November 1, 2010, demonstrating that the wastes on the north
side of the property were non-hazardous.
f.
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, while being accumulated
on-site, each container and tank is labeled or marked clearly with the words
"Hazardous Waste."
As noted during the inspections,
Respondent accumulated hazardous waste on-site, without a permit, and did not
label or clearly mark any hazardous waste containers stored for greater than 90
days and located in the main shipping and receiving warehouse, outside on the
east side of the main building, and on the north side of the property with the
words "Hazardous Waste."
Respondent provided IDEM with
documentation on November 1, 2010, demonstrating that the wastes on the north
side of the property were non-hazardous.
g.
Pursuant
to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must inspect areas where containers are stored, at
least weekly, looking for leaks and deterioration caused by corrosion or other
factors.
As noted during the inspections, Respondent
failed to conduct weekly inspections at the container/storage areas.
i. Pursuant
to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31, facilities must be maintained
and operated to minimize the possibility of a fire, explosion, or any unplanned
sudden or non-sudden release of hazardous waste or hazardous waste constituents
to air, soil, or surface water which could threaten human health or the
environment.
As noted during the inspections,
Respondent failed to properly manage the facility to minimize a release to the
environment. Numerous containers and
bags of abandoned chemical wastes stored in lieu of disposal and located in the
main shipping and receiving warehouse, outside on the east side of the main
building, and on the north side of the property were not managed in a manner to
minimize the possibility of a fire, explosion, or any unplanned sudden or
non-sudden release of hazardous waste or hazardous waste constituents to air,
soil, or surface water which could threaten human health or the environment.
Respondent provided IDEM with
documentation on November 1, 2010, demonstrating that the wastes on the north
side of the property were non-hazardous.
j. 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 inspections,
Respondent caused and/or allowed solid waste, including, but not limited to
numerous containers and bags of abandoned chemical wastes located in the main
shipping and receiving warehouse, outside on the east side of the main
building, and on the north side of the property, to be stored and disposed at
the Site in a manner which creates a threat to human health or the environment.
k.
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 any form that causes or would cause pollution
that violates or would violate 40 CFR 265.31 and/or 329 IAC 10-4-2, rules
adopted by the board under the environmental management laws.
As noted during the inspections,
Respondent, by abandoning wastes at the site, threatened to discharge, emit,
cause, or allow contaminants and wastes into the environment in a form that causes
or would cause pollution in violation of 40 CFR 265.31 and/or 329 IAC 10-4-2.
l. Pursuant
to 40 CFR 268.50, the storage of hazardous wastes restricted from land disposal
is prohibited unless each container is clearly marked to identify its contents and
the date each period of accumulation begins and each tank is marked with the same,
unless the information for each tank is recorded and maintained in the operating
record at the facility.
As noted during the inspections,
Respondent stored hazardous wastes restricted from land disposal and had not
clearly marked the containers to identify their contents and had not marked the
date each period of accumulation began.
8. On
February 9, 2010, Respondent submitted shipping documents including manifests
and bills of lading to IDEM via E-mail.
The documents indicated that the abandoned wastes included, but were not
limited to, the following: two hundred
and fifteen (215) gallons of hazardous waste designated as D002; one thousand
two hundred (1200) pounds of hazardous waste designated as D001; sixty five
(65) gallons of hazardous waste designated as D001/F003; ten (10) pounds of
hazardous waste designated as U219: and five hundred (500) gallons of
non-hazardous waste regulated liquids.
The February 12, 2010 IDEM inspection verified that all wastes at the
Site have been transported off-site.
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.
Respondent
shall comply with statutes, rules, and/or permit conditions or listed in the
findings here and/or above at issue.
3. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
submit three (3) hard copies and one complete copy of the entire document on
CD, in PDF format no greater than 100 megabytes per file, of a hazardous waste
closure plan for all areas at the Site where hazardous wastes were stored for
greater than 90 days including, but not limited to, the main shipping and
receiving warehouse and outside on the east side of the main building, 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.
4. 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.
5. 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.
6. Within
thirty (30) days of the Effective Date, Respondent shall submit documentation
to IDEM demonstrating that all wastes, both solid and hazardous, at the Site
have been properly transported off-site and disposed of at permitted
facilities.
7. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Brenda
Lepter, Enforcement Case Manager |
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Office
of Land Quality – Mail Code 60-02L |
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Indiana
Department of Environmental Management |
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8. Respondent
is assessed a civil penalty of Thirty Thousand Four Hundred Dollars
($30,400). Within thirty (30) days of
the Effective Date of the Agreed Order, Respondent shall pay a portion of this
penalty in the amount of Eight Thousand Four Hundred Dollars ($8,400). Said penalty amount shall be due and payable
to the Environmental Management Special Fund. In lieu of payment of the remaining civil
penalty, Respondent shall perform and complete a Supplemental Environmental
Project (“SEP”). Respondent estimates
that this SEP will cost Twenty Two Thousand Dollars ($22,000). Within thirty days of completing this SEP, Respondent
shall submit written notice and documentation to IDEM which substantiates all actions
taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less
than $22,000, Respondent shall pay one
hundred percent of the difference between the proposed cost of the SEP ($22,000)
and the actual cost of the SEP.
As a Supplemental Environmental
Project, Respondent shall perform a pollution prevention project which results
in conservation of energy. Specifically,
Respondent shall make a one-time payment to Bosler Energy Technologies, LLC for
the design, purchase, and installation of an Energy Automation Systems, Inc.
system for the Clay Township Regional Waste Treatment Plant in
In the event that Respondent does
not complete the SEP according to the timeframes set forth above, the full
amount of the civil penalty as stated above, plus interest established by IC
24-4.6-1-101, will be due within fifteen (15) days from Respondent's receipt of
IDEM’s notice to pay. Interest, at the
rate established by IC 24-4.6-1-101, shall be calculated on the amount due from
the date which is thirty (30) days after the Effective Date of this Agreed
Order until the full civil penalty is paid.
9. 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 No. 3 |
$500 per week |
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Failure to comply with Order No. 4 |
$500 per week |
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Failure to comply with Order No. 5 |
$500 per week |
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Failure to comply with Order No. 6 |
$250 per week |
10. 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.
11. 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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12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
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Printed: ______________________ |
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Office of Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental
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By: ________________________ |
By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
Date: ______________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT
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DAY
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2010. |
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For the Commissioner: |
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Signed on 1/5/2011 |
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Bruce
H Palin |
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Assistant Commissioner |
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Office of Land Quality |
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