STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY 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. 2020-27464-H |
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HIGHWATER MARINE, LLC D/B/A |
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Godfrey Marine, |
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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 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. 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 IC
13-13-1-1.
2.
Respondent is Highwater Marine, LLC d/b/a
Godfrey Marine (“Respondent”), which owns/operates the facility with United
States Environmental Protection Agency (“EPA”) ID No. INT190010140, located at 720
County Road 15, in Elkhart, Elkhart 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”) to:
Highwater
Marine, LLC |
C
T Corporation System, Registered Agent for |
d/b/a/
Godfrey Marine |
Highwater
Marine, LLC d/b/a Godfrey Marine |
2805
Decio Drive |
334
North Senate Avenue |
Elkhart,
IN 46514 |
Indianapolis,
IN 46204 |
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Highwater
Marine, LLC d/b/a Godfrey Marine |
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Attn:
Heather Tallman, EHS Manager |
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4500
Middlebury Street |
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Elkhart,
IN 46516 |
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5.
Respondent notified EPA of Large Quantity Generator activities.
6.
Respondent manufactures fiberglass boats.
7. 329 Indiana Administrative Code (“IAC”)
3.1 incorporates 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 October 13, 2020 conducted by a
representative of IDEM, the following violations were found:
a. Pursuant
to 40 CFR 262.11(a), a person who generates a solid waste must determine if
that waste is a hazardous waste at the point of waste generation, before any
dilution, mixing, or other alteration of the waste occurs, and at any time in
the course of its management that it has, or may have, changed its properties
as a result of exposure to the environment or other factors that may change the
properties of the waste such that the RCRA classification of the waste may
change.
As noted during the inspection,
Respondent did not make a proper hazardous waste determination on plastic waste liners, a D001 hazardous waste. The plastic waste liners were commingled with
municipal trash and disposed of as a solid waste.
b. Pursuant to 40 CFR 262.17(a)(6)
referencing 40 CFR 262.251(b)(8)(i), a large quantity
generator must maintain and operate the facility 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 inspection,
Respondent failed to maintain and operate
the facility in a manner that minimized the risk of harm to human health and
the environment. Plastic waste liners, a D001 hazardous waste, were
commingled with municipal trash prior to disposal as a solid waste.
c. Pursuant to 40 CFR 262.17(a)(6)
referencing 40 CFR 262.261(d), the contingency plan must include a list of
names and emergency telephone numbers for all persons qualified to act as
emergency coordinator and this list must be kept up to date.
As noted during the inspection,
Respondent's contingency plan did not include an up to date
list of emergency coordinators with names and phone numbers.
d. Pursuant to 40 CFR 262.17(a)(6)
referencing 40 CFR 262.264, at all times there must be
at least one employee either at the facility or on call with responsibility for
coordinating emergency response measures. The emergency coordinator must be
thoroughly familiar with all aspects of the contingency plan, operation and
activities at the facility, location and characteristics of hazardous waste
handled, locations of records, and layout of the facility.
As noted
during the inspection, Respondent did not designate an emergency coordinator.
The primary emergency coordinator no longer worked at the facility. Respondent verbally
identified Heather Tallman, Collin McGann, and Mark Mast as the emergency
coordinators, but they were not listed in the contingency plan. Darryl Roberts,
who was identified as an alternative coordinator in the contingency plan,
verbally commented that he was unaware that he was an emergency coordinator.
e. Pursuant to 40 CFR 262.17(a)(7)(i),(ii), and (iii), facility
personnel must complete a program of classroom instruction, online training, 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 adequate hazardous waste training as required.
On April 29, 2021, Respondent provided
via email training documentation that was reviewed and deemed not adequate by
IDEM.
f. Pursuant to 40 CFR 262.17(a)(7)(iv),
certain hazardous waste training related documents and
records including job title, job descriptions, a description of the type and
amount of required training, and completion documents with respect to the
hazardous waste management training must be maintained on-site.
As noted during the inspection, Respondent
did not maintain the required hazardous waste training related documents to
include job title, job descriptions, a description of the type and amount of
required training on-site.
g. Pursuant to 40 CFR 262.17(a)(9)
referencing 40 CFR 268.7(a), a generator must determine if a hazardous waste is
restricted from land disposal and if the waste has to
be treated before being land disposed. 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 and place a copy in
the file.
On April 29, 2021, Respondent provided
via email a Land Disposal Restriction Notification Form dated 01/21/21.
h. 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 D001 plastic waste liners commingled
with municipal trash for transportation without preparing a manifest.
On April 29, 2021, Respondent provided
analytical results via email documenting the plastic waste liners are a
non-hazardous waste.
i. 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 record review,
Respondent caused or allowed the transportation of D001 plastic waste liners
commingled with municipal trash without a hazardous waste manifest as required
by law.
On April 29, 2021, Respondent provided
analytical results via email documenting the plastic waste liners are a
non-hazardous waste.
j. Pursuant to 40 CFR 262.18(c), a
generator must not offer its hazardous waste to transporters or to treatment,
storage, or disposal facilities that have not received and EPA identification
number.
As noted
during the inspection, Respondent offered D001 plastic waste liners
commingled with municipal trash to a transporter and disposal facility that had
not received an EPA identification number.
On April 29, 2021, Respondent provided
analytical results via email documenting the plastic waste liners are a
non-hazardous waste.
k. Pursuant to 40 CFR 261.4(a)(23)(ii)(A)
and 40 CFR 260.10, a hazardous secondary material is contained as defined in §
260.10 of this chapter. Contained means held in a unit (including a land-based
unit as defined in this subpart) that meets the following criteria: (2) The
unit is properly labeled or otherwise has a system (such as a log) to
immediately identify the hazardous secondary materials in the unit.
As noted
during the inspection, Respondent failed to label one (1) 55-gallon container of
spent acetone located in the Spent Acetone Reclamation Area with words to
properly identify the contents as a hazardous secondary material.
l. Pursuant to 40 CFR 260.42(a),
facilities managing hazardous secondary materials under §260.30, 261.4(a)(23),
or 261.4(a)(27) must send a notification prior to operating under the
regulatory provision and by March 1 of each even-numbered year thereafter to
the Regional Administrator using EPA Form 8700-12.
As noted during the inspection,
Respondent failed to submit a notification for managing hazardous secondary
materials by March 1, 2020.
On October 19, 2020, Respondent
submitted a notification for managing hazardous secondary materials.
m. Pursuant to 40 CFR 261.4(a)(23)(ii)(E),
persons performing the recycling of hazardous secondary materials under this
exclusion must maintain documentation of their legitimacy determination
on-site. Documentation must be a written description of how the recycling meets
the factors in §260.43(a)(1-3). Documentation must be
maintained for three years after the recycling operation has ceased.
As noted during the inspection,
Respondent failed to maintain legitimacy criteria documentation.
On April 29, 2021, Respondent provided via
email legitimacy criteria documentation.
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, Respondent 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 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 of fact above.
3.
Within thirty (30) days of the Effective Date, Respondent
shall comply with 40
CFR 262.17(a)(6) referencing 40 CFR 262.261(d). Specifically, Respondent shall submit to IDEM
a copy of the contingency plan that includes a list of individuals designated
to act as emergency coordinator along with their phone numbers.
4. Within thirty
(30) days of the Effective Date, Respondent shall comply with 40
CFR 262.17(a)(7). Specifically, Respondent shall provide personnel training to
all individuals involved with hazardous waste management that teaches them to
perform their duties in compliance with the hazardous waste management rules.
5. Within forty-five (45) days of the
Effective Date, Respondent shall submit to IDEM documentation of hazardous
waste management training to all individuals involved with hazardous waste
management.
6. Within forty-five (45) days of the
Effective Date, Respondent shall comply with 40 CFR 262.17(a)(7)(iv).
Specifically, Respondent shall submit to IDEM hazardous waste training related
documents and records including job title, job descriptions, a description of
the type and amount of required training, and completion documents with respect
to the hazardous waste management training.
7. Upon the Effective Date of the Agreed
Order, Respondent shall comply with 40 CFR 261.4(a)(23)(ii)(A) and 40 CFR
260.10. Specifically, Respondent shall label spent acetone containers managed
as a hazardous secondary material with words to properly identify the hazardous
secondary material.
8. Within fifteen (15) days of the
Effective Date, Respondent shall comply with 40 CFR 260.42(a). Specifically,
Respondent shall submit to IDEM a notification form for handling hazardous
secondary materials for the years 2019 and 2020.
9. Within thirty (30) days of the Effective
Date, Respondent shall comply with 40 CFR 261.4(a)(23)(ii)(E). Specifically,
Respondent shall maintain documentation of their legitimacy determination
on-site. Documentation must be a written description of how the recycling meets
the factors in §260.43(a)(1-3). Documentation must be
maintained for three years after the recycling operation has ceased.
10. All submittals required by this Agreed
Order, unless IDEM notifies the Respondent
otherwise in writing, shall be sent to:
Debbie
Chesterson, Enforcement Case Manager |
Office
of Land Quality |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
11. Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Eighteen Thousand Six Hundred Dollars
($18,600). 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.”
12.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess
and Respondent shall pay stipulated penalties in the following amounts:
Paragraph |
Stipulated Penalty |
Order paragraph
#3 |
$100
per week |
Order paragraph
#5 |
$100
per week |
Order paragraph
#6 |
$100
per week |
Order paragraph
#8 |
$100
per week |
Order paragraph
#12 |
$100
per week |
Order paragraph
#14 |
$100
per week |
Order paragraph
#16 |
$100
per week |
13.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondent receives written notice that
Complainant has determined a stipulated penalty is due; the thirtieth 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 a
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.
14.
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 |
15.
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 14, above.
16.
Signatories to this Agreed Order certify that they
are fully authorized to execute this Agreed Order and legally bind the party
they represent.
17.
This Agreed Order shall apply to and be binding
upon Respondent and all successors and assigns. Respondent shall provide a copy
of this Agreed Order, if in force, to any subsequent owners, successors, or
assigns before ownership rights are transferred.
18.
No change in ownership, corporate, or
partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this
Agreed Order.
19.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
20.
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.
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 the obligation to
comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
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 violations
specified in the NOV.
24.
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.
25. This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________ |
By:
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Jennifer
Reno, Section Chief |
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Land Enforcement
Section |
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 RESPONDENT: |
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By: ________________________ |
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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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DAY
OF |
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20__. |
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For the
Commissioner: |
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_Signed on
07/26/21__________ |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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