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. 2020-27517-H
					)
FAS-PAK, INC.,					)
					)
Respondent.					)

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 Fas-Pak, Inc. which owns and operates the facility with EPA ID No. IND098650484, located at 401 Darlington Street in LaPorte, LaPorte 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”) on March 31, 2021 via United States Postal Service to:

Gregory Ake, President and Registered Agent for

Fas-Pak, Inc.

411 Fairfield Avenue

Michigan City, Indiana 46360

Online.accounts@fas-pak.com

5. Respondent notified EPA of Large Quantity Generator activities on January 24, 2019.

6. Respondent is a full service, contract liquid packager for the automotive appearance and household cleaning products markets.

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 July 21, 2020 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 40 Code of Federal Regulations (“CFR”) 262.11 and 40 CFR 261.22, 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; 40 CFR 261.22, a solid waste exhibits the characteristic of corrosivity if a representative sample of the waste has either of the following properties: It is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5, as determined by a pH meter using Method 9040C in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846, as incorporated by reference in §260.11 of this chapter.

As noted during the inspection, Respondent uses a wide range pH paper that measures full pH units. This is not adequate in making a proper hazardous waste determination to determine if the waste is equal to or less than two (2) or equal to or greater than 12.5 and therefore a D002 hazardous waste. Three (3) totes of waste in the acid production area were improperly determined to be non-hazardous.

Respondent submitted responses on September 4, 2020, October 12, 2020, and November 6, 2020 but did not adequately detail the waste determinations of the hazardous waste or the hazardous waste generation points in the factory, including the satellite accumulation points where drips are collected from line overflows and accumulation totes for the acid, bleach and flammable lines or the chloroform waste in the laboratory, and the locations where hazardous wastes are generated.

Respondent provided a written statement on May 7, 2021 outlining a system identifying use of colored buckets indicating material for production reuse.

Respondent submitted a response on May 18, 2021 providing hazardous waste generation points in the factory, including the satellite accumulation points where drips are collected from line overflows and accumulation totes for the acid, bleach and flammable lines or the chloroform waste in the laboratory, and the locations where hazardous wastes are generated.

On May 25, 2021, Respondent provided a statement that the material in the three totes was incorrectly labeled as non-hazardous waste, when the material is for reuse purposes. Respondent also contends that the materials in the three totes were not “solid waste” and that IDEM has no authority to impose fines or penalties as are claimed in this NOV for the handling of such materials by Respondent.

On September 21 and 22, 2021, Respondent submitted a bleach protocol regarding spills from the production line.

b. Pursuant to 40 CFR 262.17(a)(1)(iv)(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, one container in the acid production area and one container located between the main processing area and mezzanine were not closed. During the inspection, the container in the acid production area was closed.

On September 4, 2020, Respondent submitted photographic documentation that the container located between the main processing area and mezzanine was closed.

c. Pursuant to 40CFR 262.17(a)(5)(i)(A), a large quantity generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that, while being accumulated on-site, each container is labeled or marked clearly with the words "Hazardous Waste.

As noted during the inspection, three containers in the acid production area were not marked with the words “Hazardous Waste”.

On September 4, 2020, Respondent submitted photographic documentation of the three containers in the acid production area marked with the words “Hazardous Waste”.

Respondent contends in statements dated April 27, 2021, May 25, 2021, and June 30, 2021, the three totes in the acid production area were for reuse purposes and therefore, did not need to be labeled with the words “Hazardous Waste”. Respondent also contends that the materials in the three totes were not “solid waste” and that IDEM has no authority to impose fines or penalties as are claimed in this NOV for the handling of such materials by Respondent.

d. Pursuant to 40 CFR 262.17(a)(5)(i)(B), a large quantity generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that, while being accumulated on-site, each container is labeled or marked with an indication of the hazards of the contents.

As noted during the inspection, three containers in the acid production area were not marked or labeled with the indication of their hazards.

On September 4, 2020, Respondent submitted photographic documentation of the three containers in the acid production area were labeled with indication of their hazard contents.

Respondent contends in statements dated April 27, 2021, May 25, 2021, and June 30, 2021, the three totes in the acid productions area were for reuse purposes and therefore, did not need labeled with indications of its hazard contents. Respondent also contends that the materials in the three totes were not “solid waste” and that IDEM has no authority to impose fines or penalties as are claimed in this NOV for the handling of such materials by Respondent.

e. Pursuant to 40 CFR 262.263, the contingency plan must be reviewed, and immediately amended, if necessary, whenever:

(a) Applicable regulations are revised;

(b) The plan fails in an emergency;

(c) The generator facility changes-in its design, construction, operation, maintenance, or other circumstances-in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;

(d) The list of emergency coordinators changes; or

(e) The list of emergency equipment changes.

As noted during the inspection, the current contingency plan suggests that D001 wastes are being neutralized on-site. It also references a procedure of neutralizing wastes in 300-gallon totes. This procedure is no longer being done in this manner, rather D002 acidic corrosive wastes are now being neutralized by pumping waste into a much larger 5,000-gallon tanker. The D002 alkaline corrosive waste is neutralized in a less than 6,000-gallon station tank inside the building.

On September 4, 2020, Respondent submitted an updated contingency plan; however, the quick reference guide and documentation of the submittals to the local emergency response teams were not included as required under 40 CFR 262.262(c).

On November 6, 2020, Respondent submitted a quick reference guide, but it did not include the following elements required under 40 CFR 262.262(b) or show that it was submitted to local emergency response teams:

Element 2 Does not show the total storage capacity and does not show the estimated maximum amount of each hazardous wase that may be present at any one time;

Element 4 Does not include the numerous satellite accumulation areas and accumulation areas in the facility including the acid line, the bleach line, the flammable area, and in between the processing line and mezzanine;

Element 5 The submitted plan does not include a street map in relation to surrounding businesses, etc.

The facility also indicated that it was no longer neutralizing corrosive wastes on-site. It was inquired as to whether this extended to the bleach and the tank the bleach is stored in, stating that if the waste in the tank is no longer being neutralized in the tank, and the pH of the waste in the tank is greater than 12.5, it would be a hazardous waste tank and must comply with 40 CFR 262.16(a)(2).

The facility failed to detail how the bleach in the accumulation container is being managed prior to being pumped into the tank, and it is unclear how the pH of the waste in the tank is being lowered to less than 12.5.

On May 18, 2021 Respondent submitted an updated contingency plan and Quick Reference Guide.

f. Pursuant to 40 CFR 262.17(a)(7)(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, Ms. Kari Reinhart and Mr. Rich Finlay did not receive their annual hazardous waste training in 2020.

On September 4, 2020, Respondent submitted photographic documentation of the annual refresher of initial training for Mr. Rich Finlay and Mr. Brendon Herbert.

g. Pursuant to 40 CFR 262.17(a)(7)(v), hazardous waste training records on current personnel must be kept until closure of the facility. Records on former employees must be kept for at least three years from the date the employee last worked at the facility.

As noted during the inspection, the facility did not have written documentation of the annual training conducted in 2019.

On September 4, 2020, Respondent submitted written documentation of the annual training conducted in 2020.

h. Pursuant to 262.17(a)(9) referencing 40 CFR 268, a generator of hazardous waste must determine if the waste has to be treated before it can be land disposed. This is done by determining if the hazardous waste meets the treatment standards in 40 CFR 268.40, 40 CFR 268.45, or 40 CFR 268.49. This determination can be made in either of two ways: testing the waste or using knowledge of the waste. With the initial shipment of hazardous waste (meeting or not meeting the treatment standards in 40 CFR 268.40 and 40 CFR 268.42) to each treatment or storage facility, the generator must send a one-time written notice to each treatment or storage facility receiving the waste and place a copy in the file. No further notification is necessary until such time that the waste or facility change, in which case a new notification must be sent, and a copy placed in the generator’s file.

As noted during the inspection, the facility did not have land disposal notifications available.

On November 6, 2020, Respondent submitted a land disposal notification (LDR) for a kerosene-methanol waste for profile 02228. That is the profile the current flammable waste (Waste Flammable Liquids, N.O.S. (Isopropyl Alcohol)) is being shipped under. It appears that the waste has changed and a new LDR should have been submitted to Beaver Oil.

Respondent contends that kerosene-methanol waste is not generated, rather the facility generates Isopropyl Alcohol waste and a new LDR is not needed.

A LDR reflecting Isopropyl Alcohol waste has not been provided.

Respondent submitted an updated LDR reflecting Isopropyl Alcohol sent to Beaver Oil on September 22, 2021.

i. Pursuant to 262.15(a)(5)(i), a generator must mark or label its satellite hazardous waste containers with the words “Hazardous Waste”.

As noted during the inspection, satellite accumulation containers used to accumulate hazardous waste below the acid production lines, below the bleach line and under the sinks in the west tank lab were not marked with the words “Hazardous Waste”.

On November 6, 2020, Respondent submitted photographic documentation that the satellite accumulation containers used to accumulate hazardous waste below the acid production lines, below the bleach line and under the sinks in the west tank lab were marked with the words “Hazardous Waste”.

Respondent contends in statements dated April 27, 2021, May 25, 2021, and June 30, 2021, the satellite accumulation containers below the acid production lines and below the bleach lines were for reuse purposes and therefore, did not need labeled with the words “Hazardous Waste”. Respondent also contends that the materials in the satellite accumulation containers were not “solid waste” and that IDEM has no authority to impose fines or penalties as are claimed in this NOV for the handling of such materials by Respondent.

j. Pursuant to 40 CFR 262.15(a)(5)(ii), a generator must mark or label its satellite hazardous waste containers with an indication of the hazards of the contents.

Respondent contends in statements dated April 27, 2021, May 25, 2021, and June 30, 2021, the satellite accumulation containers below the acid production lines and below the bleach lines were for reuse purposes and therefore, did not need labeled with indications of its hazard contents. Respondent also contends that the materials in the satellite accumulation containers were not “solid waste” and that IDEM has no authority to impose fines or penalties as are claimed in this NOV for the handling of such materials by Respondent.

k. Pursuant to 329 IAC 3.1-16-2(4) (Universal Waste Labeling), each lamp or a container or package in which such lamps are contained must be labeled or marked clearly with the phrase “Universal Waste-Lamp(s)” or “Waste Lamp(s)” or “Used Lamp(s)” or with other words that accurately identify the universal waste lamps.

As noted during the inspection, universal waste lamp containers in the maintenance storage area were not marked with the phrase “Universal Waste-Lamp(s)” or with other words that accurately identify the universal waste lamps.

On September 4, 2020, Respondent submitted photographic documentation of the maintenance storage marked with the phrase “Universal Waste-Lamp(s)”.

l. Pursuant to 40 CFR 273.13 (Containers-closed, good condition, no evidence of leaks), a universal waste handler must contain wastes in containers that are in good condition, compatible with the waste, closed, and lack evidence of leakage.

As noted during the inspection, universal waste lamp containers located in the maintenance storage area were not closed.

On September 4, 2020, Respondent submitted photographic documentation of no longer storing universal waste fluorescent bulbs on-site.

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 rules listed in the findings of fact above.

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

Jodi Pisula, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

4. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Twelve Thousand Nine Hundred Twenty-Five Dollars ($12,900.00). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Two Thousand Five Hundred Eighty Dollars ($2,580.00). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the 30th day being the “Due Date.”

In lieu of payment to IDEM of the remaining civil penalty, Respondent shall, as a Supplemental Environmental Project (SEP), make a cash payment of Ten Thousand Three Hundred Twenty Dollars ($10,320.00) to the United States Environmental Protection Agency to partially support the Great Lakes Legacy Act project described in Subparagraph A. below. Respondent shall make such payment in accordance with Subparagraph F through G below. Timely, full payment to the United States Environmental Protection Agency satisfies Respondent’s obligation to undertake a SEP to offset a portion of the civil penalty assessed in this matter.

A. The project to be partially supported by the SEP lies within the Grand Calumet River / Indiana Harbor Ship Canal Great Lakes Area of Concern (AOC) designated by the International Joint Commission. Specifically, the project consists of sediment remediation and habitat restoration in and adjacent to a 3.1-mile reach of the East Branch Grand Calumet River (EBGCR) that extends from the most upstream boundary of either the: (1) ConRail Bridge; or (2) the downstream terminus of the US Steel sediment project (near the Gary Sanitary District National Pollutant Discharge Elimination System permitted outfall) to Cline Road.

B. If, following deposit of the funds pursuant to Subparagraphs F through G of this Agreed Order, IDEM determines that the aforementioned Great Lakes Legacy Act project is no longer viable, the agency reserves the right to apply the cash payment described in Subparagraph A to another, similar Great Lakes Legacy Act project within the Grand Calumet River / Indiana Harbor Ship Canal AOC.

C. The implementation of this SEP will benefit human health and the environment within the AOC by reducing exposure to sediment contaminants, including PCBs, oil and grease, and heavy metals, via direct contact and through the food chain. Remediation of contaminated sediments is the key action that has been identified as needed to remove six of the 12 remaining Beneficial Use Impairments (“BUIs”) negatively impacting the AOC. These BUIs are:

· Restrictions on fish and wildlife consumption

· Tainting of fish and wildlife flavor

· Fish tumors or other deformities

· Bird or animal deformities or reproduction problems

· Degradation of benthos (aquatic organisms that live on, in, or near the bottom of waterways)

· Restriction on dredging activities.

D. In addition to the direct impacts on human health and the environment, remediation of contaminated sediment at Great Lakes AOCs has been linked to economic growth and revitalization at affected communities.

E. Respondent agrees to invoicing by the United States Environmental Protection Agency, for the full amount of the SEP, via electronic mail sent to the following address for Ed Wing, Vice President, Fas-Pak Inc.: ed.wing@fas-pak.com.

F. The Respondent shall render payment via check to the United States Environmental Protection Agency by the due date printed on the Invoice, which shall be no sooner than 30 days following the issuance of the Invoice. The Respondent shall include the account number listed on the invoice in the memo line of the check. The check shall be sent via Certified Mail or an equivalent shipping method utilizing signed receipt confirmation, along with a printed copy of the invoice received from the United States Environmental Protection Agency, to:

U.S. Environmental Protection Agency

FOIA & Miscellaneous Payments

Government Lockbox 979078

1005 Convention Plaza

SL-MO-C2-GL

St. Louis, MO 63101

G. Respondent shall provide Complainant with: (1) documentation of payment, (2) a copy of the invoice issued by the United States Environmental Protection Agency and (3) a copy of this Agreed Order via Certified Mail within one (1) week of such payment.

H. In the event that Respondent does not make its SEP payment to the United States Environmental Protection Agency by the due date printed on the invoice, the full amount of the civil penalty as stated in this paragraph, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due to IDEM 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 due date printed on the invoice received from the United States Environmental Protection Agency until the full civil penalty is paid.

5. 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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

6. 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 5, above.

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

8. 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.

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

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

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management				Fas-Pak, Inc.

By: ___________				By: _________________________
	Jennifer Reno, Section Chief
	Land 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 11/23/2021
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality