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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
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Complainant, |
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v. |
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Case No. 2021-28109-H |
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preferRed Global, 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 Preferred Global, Inc.
(“Respondent”), which operates the facility with EPA ID No. IND016562340,
located at 1360 South 10th Street, in Noblesville, Hamilton 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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John C. Norton, President
and Registered Agent |
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Preferred
Global, Inc. |
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1360
South 10th Street |
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Noblesville,
IN 46060 |
5.
Respondent notified of Very Small Quantity
Generator activities.
6.
The facility is an industrial and commercial
flooring and polishing company.
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 August 31, 2021
conducted by a representative of IDEM, the following violations were found:
9.
Pursuant
to 40 CFR 262.13, a generator must determine its generator category. A generator’s
category is based on the amount of waste generated each month and may change
from month to month.
As noted during the inspection,
Respondent failed to determine its proper generator category. Respondent operated
as a large quantity generator of hazardous waste during the year 2020 and a
small quantity generator of hazardous waste for 2021.
10.
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 generator
activities. Respondent changed generator status from a very small quantity
generator of hazardous waste to a large quality generator of hazardous waste
during 2020.
11.
Pursuant
to IC 13-22-4-3.1(c), a hazardous waste large quantity generator (“LQG"),
i.e., a person that generates, in any one or more calendar months of a calendar
year:
a) more than one thousand (1,000)
kilograms of hazardous waste;
b) at least one (1) kilogram of acute
hazardous waste; or
c) at least one hundred (100) kilograms of
material from the cleanup spillage of acute hazardous waste; or accumulates at
least six thousand (6,000) kilograms of hazardous waste or at least one (1)
kilogram of acute hazardous waste shall, before March 1 of each year, submit to
the department either the biennial report required by the United States
Environmental Protection Agency (“U.S. EPA”) concerning the person's waste
activities during the previous calendar year, or an annual report on
forms provided by the department, that summarizes the person's hazardous waste
shipments during the previous calendar year. LQGs are required to submit the
Hazardous Waste Biennial Report required by the U.S. EPA by March 1 of each
even numbered year and the IDEM annual manifest report by March 1 of each odd
numbered year.
As noted during the inspection, Respondent
changed generator status from a very small quantity generator of hazardous
waste to a large quantity generator of hazardous waste during the year 2020. Respondent
failed to submit an annual manifest report for the year 2020.
12.
Pursuant
to 40 CFR 262.11(a), the hazardous waste determination for each solid waste must
be made at the point of waste generation.
As noted during the inspection,
Respondent did not make hazardous waste determinations on two (2) 55-gallon blue
plastic drums of unknown contents located outside.
13.
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 central accumulation areas.
14.
Pursuant
to 40 CFR 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,
Respondent accumulated hazardous waste on-site without clearly marking
hazardous waste containers with the words "Hazardous Waste."
15.
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, and did not label or clearly
mark containers with an indication of the hazards of the contents.
16.
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, and did not mark hazardous
waste containers with accumulation start dates.
17.
Pursuant
to 40 CFR 262.17(a)(6) referencing 40 CFR 262.260, a generator must have a
contingency plan for the facility.
As noted during the inspection,
Respondent did not have a contingency plan.
18.
Pursuant
to 40 CFR 262.17(a)(6) referencing 40 CFR 262.262(b), a large quantity
generator that first becomes subject to these provisions after May 30, 2017, or
a large quantity generator that is otherwise amending its contingency plan must
at that time submit a quick reference guide of the contingency plan to the
local emergency responders identified at paragraph (a) of this section or, as
appropriate, the Local Emergency Planning Committee. The quick reference guide
must include:
a)
The
types/names of hazardous wastes in layman’s terms and the associated hazard
associated with each hazardous waste present at any one time.
b)
The
estimated maximum amount of each hazardous waste that may be present at any one
time.
c)
The
identification of any hazardous wastes where exposure would require unique or
special treatment by medical or hospital staff.
d)
A
map of the facility showing where hazardous wastes are generated, accumulated,
and treated and routes for accessing these wastes.
e)
A
street map of the facility in relation to surrounding businesses, schools,
residential areas to understand how best to get to the facility and also evacuate citizens and workers.
f)
The
locations of water supply.
g)
The
identification of on-site notification systems; and
h)
The
name of the emergency coordinator(s) and 7/24-hour emergency telephone
number(s) or, in the case of a facility where an emergency coordinator is
continuously on duty, the emergency telephone number for the emergency
coordinator.
As noted during the inspection,
Respondent failed to have a quick reference guide.
19.
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.
As noted during the inspection,
Respondent did not have a designated emergency coordinator.
20.
Pursuant
to 40 CFR 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,
Respondent accumulated hazardous waste in containers at or near the point of
generation without a permit and did not properly mark satellite accumulation
containers in the Paint Area with the words “Hazardous Waste.”
21.
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.
As
noted during the inspection, Respondent accumulated hazardous waste in
containers at or near the point of generation without a permit and did not
properly mark satellite accumulation containers in the Paint Area with an
indication of the hazards of the contents.
22.
Pursuant
to 40 CFR 262.14(a)(4)(iii), if a very small quantity generator accumulates at
any time 1,000 kilograms or greater of non-acute hazardous waste, then
generator is subject to 262.16(b)(2) through (f).
As noted during the inspection, Respondent
became subject to small quantity generator requirements of 262.16(b)(2) through
(f) when it stored 1,000 kilograms or greater of non-acute hazardous waste but
had only notified as a very small quantity generator.
23.
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 statute and rules
listed in the findings of fact above.
3.
Upon
the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.13. Specifically, Respondent shall
determine its generator category on a monthly basis.
4.
Upon
the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR
262.14(a)(4)(iii). Specifically, Respondent shall not store greater than 1,000
kilograms of hazardous waste on-site as a very small quantity generator without
complying with 40 CFR 262.16(b)(2) through (f).
5.
Within
thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR
262.13(a) and 329 IAC 3.1-1-10. Respondent shall notify IDEM of its current
hazardous waste generator activities via RCRAinfo.epa.gov. Instructions can be
found here: IDEM: Managing Waste: How to Obtain a New RCRA ID
Number.
6.
Within
thirty (30) days of completing Order Paragraph 5, submit the annual manifest
report for 2020, including Form OS. The Annual Report for 2020 hazardous waste
activity must be submitted electronically via the Annual Report module in
RCRAInfo. Instructions can be found here: https://www.in.gov/idem/waste/resources/applications-and-forms/annual-report-and-biennial-report/
7.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.11(a). Specifically, Respondent shall conduct
hazardous waste determinations on the two (2) 55-gallon blue plastic containers
located outside.
8.
Within
forty-five (45) days of the Effective Date, Respondent shall submit waste determination
results to IDEM.
9.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.16(b)(2)(iv). Specifically, Respondent shall conduct
weekly inspections of central accumulation areas for as long as Respondent
remains a small quantity generator of hazardous waste.
10.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.16(b)(6)(i)(A) and 40 CFR
262.15(a)(5)(i). Specifically, Respondent shall
ensure all hazardous waste containers are clearly marked with the words “Hazardous
Waste”.
11.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.16(b)(6)(i)(B) and 40 CFR
262.15(a)(5)(ii). Specifically, Respondent shall ensure all hazardous waste containers
are clearly marked or labeled with an indication of the hazards of the contents.
12.
Upon
the Effective Date, Respondent shall comply with 40 CFR 262.16(b)(6)(i)(C). Specifically, Respondent shall ensure all hazardous
waste accumulated on-site is marked with accumulations start dates.
13.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.16(b)(9)(ii). Specifically, the Respondent shall post
the following information next to the telephone: (1) the name and phone number
of the emergency coordinator; (2) location of fire extinguishers and spill
control material and, if present, fire alarm; (3) the telephone number of the
fire department, unless the facility has a direct alarm for as long as
Respondent remains a small quantity generator of hazardous waste.
14.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.16(b)(9)(iii). Specifically, Respondent
shall ensure that all employees are thoroughly familiar with waste handling and
emergency procedures for as long as Respondent remains a small quantity
generator of hazardous waste.
15.
All
submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent
to:
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Samantha
Nunnery, 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 |
16.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Eleven
Thousand Two Hundred Dollars ($11,200). Said penalty amount shall be due and
payable in eleven (11) monthly installments of Nine Hundred Thirty-Three
Dollars ($933.00) and one (1) installment of Nine Hundred Thirty-Four Dollars
($934.00). Respondent shall pay the first installment payment by the due date
printed on the Invoice, as attached. Respondent shall pay by the due date
printed on subsequent invoices in accordance with the agreed upon payment plan.
Civil and stipulated penalties are
payable to the “Environmental Management Special Fund” by:
Mail:
Civil 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 |
Online:
Accounts Receivable is accepting
payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM.
Under Online Services, click Online Payment options and follow the prompts. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
Phone:
You may also call us at 317-234-3099 and
follow the instructions for Master Card, Visa or Discover payments. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
17.
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 |
Stipulated
Penalty |
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Order Paragraph No. 5 |
$100.00 per week |
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Order Paragraph No. 6 |
$100.00 per week |
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Order Paragraph No. 7 |
$100.00 per week |
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Order Paragraph No. 8 |
$100.00 per week |
18.
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.
19.
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 an additional penalty of 10 percent,
payable to the “Environmental Management Special Fund”, and shall be payable to
IDEM in the manner specified in Paragraph 16, above.
20.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
21.
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.
22.
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.
23.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
24.
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.
25.
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.
26.
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.
27.
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.
28.
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.
29.
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
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By:
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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:
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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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For
the Commissioner: |
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Signed 04/20/2022 By: |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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