STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2010-19591-H
					)
KENNEDY TANK & MANUFACTURING COMPANY, INC.,					)
					)
Respondent.					)

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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Kennedy Tank & Manufacturing Company, Inc., which owns and/or operates a facility with U.S. EPA I.D. number IND 006412928, located at 833 E. Sumner Avenue in Indianapolis, Marion 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 (“NOV”) via Certified Mail to:

Patrick W. Kennedy, President	Patrick W. Kennedy, Registered Agent for
Kennedy Tank & Manufacturing Company, Inc.	Kennedy Tank & Manufacturing Company, Inc.
50 W. 75^th Street	833 E. Sumner Avenue
Indianapolis, IN 46260	Indianapolis, IN 46227

5. Respondent last notified the United States Environmental Protection Agency (“EPA”) of hazardous waste small quantity generator activities on February 27, 2007.

6. Respondent manufactures rolled steel storage and process tanks.

7. 329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270, and Part 273 including these identified below.

8. During an investigation, including an inspection 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.

As noted during the inspection, Respondent did not make proper hazardous waste determinations on still bottoms generated from on-site methyl ethyl ketone (“MEK”) reclamation and on paper debris onto which MEK solvent was splashed or spilled, both of which were solid waste(s) generated by Respondent. Respondent had determined that these waste streams were non-hazardous; however, they are F005 listed hazardous wastes.

Respondent presented information at a settlement conference between the two parties on April 8, 2011, indicating that both waste streams have been determined to be F005 hazardous wastes.

b. Pursuant to 40 CFR 262.12(c), a generator must not offer its hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number.

As noted during the inspection, Respondent offered the hazardous wastes identified in Finding a. above to a transporter and to a treatment, storage, or disposal facility that did not have an EPA identification number(s). The hazardous wastes had been offered to Ray’s Trash Service for transport and treatment and/or disposal.

c. Pursuant to 40 CFR 262.20, a generator who transports, or offers for transportation, hazardous waste for offsite treatment, storage, or disposal, must prepare a manifest. A generator must designate on the manifest one facility which is permitted to handle the waste described on the manifest. A generator may designate an alternate facility to handle his waste in the event that an emergency prevents delivery of the waste to the primary designated facility.

As noted during the inspection, Respondent offered the hazardous wastes identified in Finding a. above for transportation for off-site treatment, storage, or disposal without preparing a manifest.

d. Pursuant to IC 13-30-2-1(12), a person may not cause or allow the transportation of a hazardous waste without a manifest if a manifest is required by law.

As noted during the inspection, Respondent caused or allowed the transportation of the hazardous wastes identified in Finding a. above without a manifest as required by law.

e. Pursuant to 40 CFR 268.7(a), with the initial shipment of waste to each treatment, storage, or disposal facility, a generator must send a one-time written notice to each facility receiving the waste and place a copy in the file.

As noted during the inspection, Respondent failed to provide the one-time written notice to the disposal facility for the hazardous wastes identified in Finding a. above, and did not place a copy in the file.

f. Pursuant to 40 CFR 262.34(c)(1)(ii), a generator may accumulate as much as 55 gallons of hazardous waste in containers at or near the point of generation without a permit and without complying with 40 CFR 262.34(a), provided that the containers are marked with either the words "Hazardous Waste" or with other words describing the contents.

As noted during the inspection, Respondent did not properly mark four (4) satellite accumulation containers of F005 listed hazardous waste, located at a cabinet at the northwest corner of the paint shop (P5), and one (1) satellite accumulation container accumulating discarded paint waste, located outside south of the paint and blast building and west of the product paint storage sheds, with either the words “Hazardous Waste” or with other words describing the contents.

The violation was corrected at the time of the inspection.

g. Pursuant to 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a), a container holding hazardous waste must always be closed during storage, except when it is necessary to add or remove waste.

As noted during the inspection, Respondent did not store four (4) satellite accumulation containers of F005 listed hazardous waste, located at a cabinet at the northwest corner of the paint shop (P5), closed.

The violation was corrected at the time of the inspection.

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 the rules listed in the findings here and/or above at issue.

3. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.11. Specifically, Respondent shall ensure that proper waste determinations are made for all wastes generated at the Site.

4. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 268.7(a). Specifically, Respondent shall ensure that with the initial shipment of waste to each treatment, storage, or disposal facility, it provides a one-time written notice to each facility receiving the waste and places a copy in the file.

5. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.12(c). Specifically, Respondent shall ensure that it does not offer its hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number.

6. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.20 and IC 13-30-2-1(12). Specifically, Respondent shall ensure that it does not cause or allow the transportation of a hazardous waste without a manifest.

7. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(c)(1)(ii). Specifically, Respondent shall ensure that satellite accumulation containers are marked with either the words "Hazardous Waste" or with other words describing the contents.

8. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a). Specifically, Respondent shall ensure that satellite accumulation containers are kept closed during storage, except when it is necessary to add or remove waste.

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

Brenda Lepter, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

10. Respondent is assessed a civil penalty of Eleven Thousand Three Hundred and Twenty Two Dollars ($11,322). Said penalty amount shall be due and payable to the Environmental Management Special Fund in four (4) quarterly installments of Three Thousand Three Hundred Thirty Dollars and Fifty Cents ($3,330.50) each. The first installment shall be due on or before thirty (30) days after the Effective Date; the second installment shall be due on or before August 31, 2011; the third installment shall be due on or before November 30, 2011; and the final installment shall be due on or before February 28, 2012. In the event that the civil penalty is not paid according to the time frames set forth in this Agreed Order, 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.

11. The civil penalty is 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

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 permits 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.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				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	_________________,	201_.
				For the Commissioner:
				Signed on July 22, 2011
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality