STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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Complainant,

 

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v.

 

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Case No. 2015-23166-H

 

 

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ficosa north america corporation,

 

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

 

2.            Respondent is Ficosa North America Corporation (“Respondent”), which operates the facility with United States Environmental Protection Agency (“EPA”) ID No.  IND152719878, located at 917 Liechty Rd., in Berne, Adams 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 (“NOV”) via Certified Mail to Ficosa North America Corporation’s Secretary, Bruce Boyce and Registered Agent, Frederick James Zicard.

 

5.            Respondent notified EPA of Large Quantity Generator activities on January 19, 2011.

 

6.            Respondent’s facility is currently not operating.  Previously, the facility produced parts for the automotive and appliance industries.

 

7.            329 Indiana Administrative Code (“IAC”) 3.1 incorporates certain federal hazardous waste management requirements found in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270, and Part 273 including those identified below.

 

8.            During an investigation including an inspection on May 26, 2015 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 hazardous waste determinations on three 5 gallon pails of paint sludge stored in the Paint Storage Room and four bulk boxes full of 1 and 5 gallon containers in the Paint Storage Room, which contained solid wastes generated by Respondent.

 

b.            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 inspection, Respondent operated a hazardous waste facility, storing hazardous for more than 90 days without having first obtained a permit from the department.

 

c.            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 inspection, Respondent stored twenty-nine (29) 55 gallon drums and numerous 5 and 1 gallon pails in bulk boxes of hazardous waste on-site for greater than 90 days without complying with 40 CFR Part 264 and 40 CFR Part 270.  The hazardous waste was being stored on site since the facility stopped operations in May or June of 2013.

 

d.            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 inspection, Respondent stored twenty-nine (29) 55 gallon drums and numerous 5 and 1 gallon pails in bulk boxes of hazardous waste identified or listed in 40 CFR Part 261 without a permit.

 

e.            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 inspection, Respondent failed to notify the Commissioner of hazardous waste storage activities.

 

f.             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 inspection, Respondent failed to conduct weekly inspections at the Site.  Respondent has contracted a former employee, Mr. Chris Scott, to turn on lights and heat as needed.  Mr. Scott began conducting waste inventory activities after IDEM contacted the Respondent on March 26, 2015.

 

g.            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, with the exception of seven (7) 55 gallon drums and three (3) 5 gallon pails, did not mark hazardous waste containers with accumulation start dates.

 

h.            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 inspection, Respondent accumulated hazardous waste on-site, without a permit, and, with the exception of seven (7) 55 gallon drums and three (3) 5 gallon pails, did not label or clearly mark hazardous waste containers with the words "Hazardous Waste."

 

i.              Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, a generator must maintain aisle space to allow the unobstructed movement of personnel, fire protection, equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency.

 

As noted during the inspection, Respondent failed to provide the required aisle space in the Reclaim/Solvent Room and Paint Storage Room.

 

j.              Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a), (b), & (c), facility personnel must complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in compliance with the hazardous waste management rules.  Employees must be trained within six months after their date of hire and must take part in an annual review of the initial training.

 

As noted during the inspection, Respondent did not provide Mr. Scott with initial hazardous waste training.  Mr. Scott has received training from his current place of employment.

 

k.            Pursuant to 329 IAC 3.1-6-2(2), Respondents in actions to enforce regulations implementing IC 13 who raise a claim that a certain material is not a solid waste, or is conditionally exempt from regulation, must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption.  In doing so, they must provide appropriate documentation to demonstrate that the material is not a waste or is exempt from regulation.

 

As noted during the inspection, the facility has not demonstrated that there is a known market or disposition for materials, including the Chrysler paint and Electrolux material, and that they meet the terms of the exclusion or exemption.

 

After the Notice of Violation was mailed on October 8, 2015, Respondent demonstrated a known market for the Chrysler paint and Electrolux material that meet the terms of the exemption.

 

9.            As of January 2016, all waste at the Site has been properly identified, and all hazardous waste has been manifested off-site or Respondent has demonstrated a known market for reuse.

 

10.         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 statutes and rules listed in the findings above.

 

3.            Within thirty (30) days of the Effective Date, 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 the Paint Storage Room 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 may (a) revise and resubmit the plan to IDEM in accordance with IDEM’s notice; (b) schedule a meeting with IDEM to attempt to reach a mutually acceptable resolution to IDEM’s concerns; or (c) appeal IDEM’s notice as a final order pursuant to Ind. Code 4-21.5 et seq. either within 18 days of receipt of an IDEM determination that a plan is deficient or unacceptable or within 18 days of a meeting with IDEM under option (b) above in which it is determined that it is not possible to reach a mutually acceptable resolution of IDEM’s concerns.  A final approved plan shall mean the plan that (1) has been submitted to IDEM and approved; (2) has been modified and approved by IDEM and not appealed; or (3) a plan that has been appealed and fully adjudicated.

           

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

 

Trent Lindley, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.            Respondent is assessed and agrees to pay a civil penalty of Thirty Three Thousand Two Hundred Twenty-five Dollars ($33,225.00).  Said penalty amount shall be due and payable to the Environmental Management Special Fund and paid in the following manner:  within thirty (30) days of the Effective Date, the 30th day being the “Due Date,” the first installment of $1,384.49 will be due.  A total of twenty-four (24) installments shall be made consecutively within a twenty-four (24) month period, in thirty (30) day intervals, with the remaining twenty-three (23) installments in the amount of $1,384.37.

 

8.            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

Penalty

Order Paragraph #3

$200 per week late

 

9.            Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30th day being the “Due Date”.  Complainant may notify Respondent at any time that a stipulated penalty is due.  Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order.  Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

10.         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

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

 

11.         In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1.  The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance.  Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 10, above.

 

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 RESPONDENT:

 

 

 

 

 

By: ________________________

 

 

 

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

________

DAY OF

________________________,

20__.

 

 

For the Commissioner:

 

 

 

Signed on December 12, 2016

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality