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. 2019-26113-H
					)
INDIANA HEAT TRANSFER company,					)
CORPORATION, IHT Development					)
and cummins inc. DBA Cummins					)
Engine company iNC.,					)
					)
Respondents.					)

AGREED ORDER

Complainant and Respondents 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 Indiana Code (“IC”) 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents 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 IC 13-13-1-1.

2. Respondents are Indiana Heat Transfer Corporation, IHT Development Corporation, and Cummins Inc. DBA Cummins Engine Company Inc. (“Respondents”), which own and/or operate the facility, with EPA ID No. IND005421623, located at 500 West Harrison Street, in Plymouth, Marshall County, Indiana (“Site”).

3. Respondents own and/or operate a facility that engineers and fabricates radiators and cooling system components. The facility is a large quantity generator of hazardous waste.

4. IDEM has jurisdiction over the parties and the subject matter of this action.

5. Pursuant to IC 13-30-3-3, on October 1, 2019, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Daniel B. Altman, President and Registered

Agent for Indiana Heat Transfer Corporation and

IHT Development Corporation

1341 North Capitol Avenue

Indianapolis, IN 46202

Cummins Inc. d.b.a. Cummins Engine Company Inc.

Richard Joseph Freeland, President

500 Jackson Street

Columbus, IN 47201

Corporation Service Company

Registered Agent for Cummins Inc.

d.b.a. Cummins Engine Company Inc.

135 North Pennsylvania Street, Suite 1610

Indianapolis, IN 46204

6. 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.

7. During an investigation, including an inspection on March 18, 2019 conducted by a representative of IDEM, the following violations were found:

a. 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.

Based on an inspection conducted on March 18, 2019, Respondents stored hazardous waste for greater than ninety (90) days and failed to comply with 40 CFR Part 264 and 40 CFR Part 270.

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.

Based on an inspection conducted on March 18, 2019, Respondents failed to obtain a permit for hazardous waste storage. Respondents stored two (2) 55-gallon containers of D001 paint waste and approximately seven hundred fifty (750) gallons of D002 acid waste for more than ninety (90) days.

c. 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.

Based on an inspection conducted on March 18, 2019, Respondents stored hazardous waste identified or listed in 40 CFR Part 261 without a permit.

d. Pursuant to 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.

Based on an inspection conducted on March 19, 2019, Respondents failed to maintain and operate the facility in a manner that minimized the risk of harm to human health and the environment. On August 7, 2018, IDEM was notified that the facility had ceased operations on May 2, 2018. Hazardous waste remaining at the facility was exposed to summer and winter weather extremes and lacked routine inspections to identify potential risks.

e. Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous.

Based on an inspection conducted on March 19, 2019, Respondents failed to make a waste determination on product containers; liquids observed in troughs, vaults, and other containment systems throughout the facility; and residues observed on the ground.

f. Pursuant to 40 CFR 273.14(e) and 329 IAC 3.1-16-2(4), each lamp or a container or package in which such lamps are contained must be labeled or marked clearly with one of the following phrases: “Universal Waste-Lamp(s),” “Waste Lamp(s),” “Used Lamp(s),” or with other words that accurately identify the universal waste lamps.

Based on an inspection conducted on March 19, 2019, Respondents failed to properly label universal waste boxes. At total of 20 boxes of lamps in the less than 90-day accumulation shed and five (5) to six (6) boxes of lamps in the boiler room were not labeled or marked as universal waste.

g. Pursuant to 40 CFR 273.13, a universal waste handler must contain wastes in containers that are in good condition, compatible with the waste, closed, and lack evidence of leakage.

Based on an inspection conducted on March 19, 2019, Respondents failed to maintain universal waste lamp containers located in the less than 90-day accumulation shed and boiler room in good condition and closed.

h. Pursuant to IC 13-30-2-1(3), a person may not deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard.

Based on an inspection conducted on March 19, 2019, oily staining was observed near a vault located outside of the building on the northwest side.

8. IDEM conducted an inspection on January 17, 2020 and confirmed that all waste as described in the Notice of Violation issued on October 1, 2019 had been disposed of properly with the open tanks and trenches filled with concrete. The yellow and white residue observed on the ground near the welding department and die rack storage was removed and properly disposed in September 2020.

9. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondents acknowledges notice of this right and 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondents shall comply with the rules listed in the findings of fact above.

3. Within thirty (30) days of the Effective Date, Respondents shall demonstrate financial assurance in accordance with 329 IAC 3.1-15-4.

4. Within ninety (90) days of the Effective Date of this Agreed Order, Respondents shall submit a hazardous waste closure plan to IDEM for review and approval. The closure plan shall include all areas used for hazardous waste storage, as documented in the March 19, 2019 inspection, and listed below. The 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. A total of three (3) hard copies and one complete copy of the entire document on CD, in PDF format no greater than one hundred (100) megabytes per file, shall be submitted.

a. Liquid observed in a trough near the former filter press.

b. Liquid observed near the north side of the wastewater treatment plant.

c. Oily liquid in a containment systems near the packing and final inspection area.

d. Yellow and white residue observed on the ground near the welding department

and die rack storage.

e. Liquid with an oily layer in a concrete vault on the northwest side of the facility.

f. Oily liquids in two vaults near the press room.

g. Tank with approximately 600-750 gallons of aluminum sulfate.

h. Tank with approximately 700-800 gallons of calcium chloride.

i. Hydraulic oil tanks near the press room.

j. Containers ranging from 5 – 55 gallons, including, but not limited to:

1. Sulfuric acid

2. Phosphoric acid

3. Soldering flux

4. Sodium hypochlorite

5. Ammonium zinc chloride

6. Tectyl 900

7. Enprep 527

8. Sodium hydroxide

9. Paint

10. Zinc chloride

5. Within ten (10) days of notice of IDEM’s approval of the closure plan, Respondents shall implement the plan as approved and in accordance with the time frames contained therein.

6. In the event IDEM determines that any plan submitted by Respondents is deficient or otherwise unacceptable, Respondents shall revise and resubmit the plan to IDEM in accordance with IDEM's notice. After three (3) submissions of such plan by Respondents, IDEM may modify and approve any such plan and Respondents 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.

7. All submittals required by this Agreed Order, unless IDEM notifies the Respondents otherwise in writing, shall be sent to:

Linda McClure, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

8. Pursuant to IC 13-30-4-1, Respondents are assessed and agree to pay a civil penalty of Thirty-Seven Thousand Two Hundred Dollars ($37,200). Respondents are jointly and severally liable for all civil penalty assessments, including stipulated penalties. Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.”

9. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondents shall pay stipulated penalties in the following amounts:

Paragraph	Stipulated Penalty
Order paragraph #3	$200 per month late
Order paragraph #4	$200 per month late
Order paragraph #5	$300 per month late
Order paragraph #6	$150 per month late

10. Stipulated penalties shall be due and payable no later than the thirtieth day after Respondents receive written notice that Complainant has determined a stipulated penalty is due; the thirtieth day being the “Due Date.” Complainant may notify Respondents at any time a stipulated penalty is due. Failure to notify Respondents in writing in a timely manner of a stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondents 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.

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:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

12. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondents 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 Respondents pay 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 12, above.

13. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

14. This Agreed Order shall apply to and be binding upon Respondents and all successors and assigns. Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

15. No change in ownership, corporate, or partnership status of Respondents shall in any way alter the Respondents’ status or responsibilities under this Agreed Order.

16. Respondents shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

17. 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.

18. 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 Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents of the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

19. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents may incur as a result of Respondents’ efforts to comply with this Agreed Order.

20. 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 violations specified in the NOV.

21. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. EPA or any other agency or entity.

22. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondents.

TECHNICAL RECOMMENDATION:
Department of Environmental Management
By: _________________________
	Jennifer Reno, Section Chief
	Enforcement Section
	Office of Land Quality
Date: __________________
COUNSEL FOR RESPONDENT:					RESPONDENT:
Indiana Heat Transfer Corporation					Indiana Heat Transfer Corporation
By: ________________________________					By: ______________________________
Printed: _____________________________					Printed: __________________________
Date: _______________________________					Printed: __________________________
COUNSEL FOR RESPONDENT:					RESPONDENT:
IHT Development Company					IHT Development Company
By: ________________________________					By: ______________________________
Printed: _____________________________					Printed: __________________________
Date: _______________________________					Printed: __________________________
COUNSEL FOR RESPONDENT:					RESPONDENT:
Cummins Engine Company Inc.					Cummins Engine Company Inc.
By: ________________________________					By: ______________________________
Printed: _____________________________					Printed: __________________________
Date: _______________________________					Printed: __________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	_______________, 20_____.
				For the Commissioner:
				Signed 11/4/2021
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality