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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2021-27651-H |
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E & H TUBING, INC., |
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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 E & H Tubing, Inc.
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. INR000128280, located at 848
West Sweet Street, in Brownstown, Jackson 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:
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E
& H Tubing, Inc. |
E
& H Tubing, Inc., Registered Agent |
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Attn:
Gary Birnbaum, Chairman |
848
West Sweet Street |
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4401
West Roosevelt Road |
Brownstown,
IN 47220 |
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Chicago,
IL 60624 |
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5.
Respondent notified EPA of Large Quantity Generator activities.
6.
Respondent manufactures steel tubing primarily
for the agricultural industry.
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 January 21, 2021 conducted by a
representative of IDEM, the following violations were found:
a. During the inspection, IDEM noted that
an Alternate Emergency Coordinator was handling the inspection and could not
locate all of the required paperwork because the
Primary Emergency Coordinator was not available due to COVID-19. E&H Tubing
later provided records to IDEM as noted further below. E&H Tubing asserts
that it has remedied training of any non-primary personnel.
b. Pursuant to 40 CFR 262.17(a)(1)(v), at
least weekly, the large quantity generator must inspect central accumulation areas.
The large quantity generator must look for leaking containers and for
deterioration of containers caused by corrosion or other factors.
As noted during the inspection,
Respondent failed to conduct weekly inspections of the 90-day accumulation area
in the Coolant Room.
On May 14, 2021, Respondent provided
weekly inspection logs for the month of April 2021.
c. 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,
Respondent accumulated hazardous waste on-site, without a permit, and did not
label or clearly mark one (1) 55-gallon container located in the Coolant Room
with an indication of the hazards of the contents.
d. Pursuant to 40 CFR 262.17(a)(5)(i)(C), a large quantity 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 did not
mark one (1) hazardous waste container located in the Coolant Room with
accumulation start date.
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 hazardous waste training to employees.
On April 30, 2021, Respondent provided documentation
of the 2018, 2019, and 2020 personnel training logs.
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 and records on-site.
On April 30, 2021, Respondent provided a
job description and training logs for 2018, 2019, and 2020.
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,
Respondent did not maintain copies of hazardous waste training records for
current and past employees.
On April 30, 2021, Respondent provided
training records for 2018, 2019, and 2020.
h. 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 for hazardous waste streams generated. Specifically, land ban
notification forms were not provided for hazardous waste streams.
On May 14, 2021, Respondent provided
land ban notification forms along with hazardous waste manifests for 2019,
2020, and 2021.
i. Pursuant to 40
CFR 262.23(a)(3) and 40 CFR 262.40(a), the generator must retain copies of
hazardous waste manifests for a period of three (3) years from the date of
receipt of the hazardous waste by the designated facility.
As noted during the inspection, Respondent
failed to retain copies of hazardous waste manifests as required.
On May 14, 2021, Respondent provided
manifest copies of all 2019, 2020, and 2021 hazardous waste manifests to IDEM.
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. Immediately upon the Effective Date,
Respondent shall comply with 40 CFR 262.17(a)(5)(i)(B).
Specifically, Respondent shall ensure all less than ninety (90) day hazardous
waste containers are clearly labeled or marked with an indication of the
hazards of the contents.
4.
Immediately
upon the Effective Date, Respondent shall comply with 40 CFR 262.17(a)(5)(i)(C). Specifically, Respondent shall ensure all less than
ninety (90) day hazardous waste containers are clearly marked with the start of
accumulation date.
5. 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.
6. Within forty-five (45) days of the
Effective Date, Respondent shall submit to IDEM documentation of hazardous
waste management training completed in 2021 to all individuals involved with
hazardous waste management.
7. 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 2021 hazardous waste training related documents
including a description of the type and amount of required training.
8. Immediately
upon the Effective Date, Respondent shall comply with 40 CFR 262.17(a)(7)(v). Specifically, Respondent shall maintain hazardous
waste training records on current personnel until closure of the facility.
Records on former employees must be maintained for at least three years from
the date the employee last worked at the facility.
9. All submittals required by this Agreed
Order, unless IDEM notifies the Respondent
otherwise in writing, shall be sent to:
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Debbie
Chesterson, Enforcement Case Manager |
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Office
of Land Quality |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
10. Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Five Thousand Four Hundred Dollars
($5,400). 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.”
11. 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:
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Paragraph |
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$100 per
week |
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$100 per
week |
12.
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.
13.
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:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
14.
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 13, above.
15.
Signatories to this Agreed Order certify that they
are fully authorized to execute this Agreed Order and legally bind the party
they represent.
16.
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.
17.
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.
18.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24. This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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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 11/16/21_________________ |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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