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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. 2021-28140-H |
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INTERSTATE
OPTICAL CO., |
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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 Interstate Optical Co. (“Respondent”),
which owns/operates the facility located at 2902 Mitthoeffer
Place, in Indianapolis, Marion 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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Interstate
Optical Co. |
C
T Corporation System, Registered |
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Attn:
John R. Art, President |
Agent
for Interstate Optical Co. |
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680
Lindaire Lane |
334
North Senate Avenue |
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Mansfield,
OH 44906 |
Indianapolis,
IN 46204 |
5.
Respondent is a non-notifier for hazardous
waste activities.
6.
Respondent is an eyeglass lens manufacturer.
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 September 21, 2021 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 40 CFR
262.13, a generator must determine its generator category. A generator’s category is based on the amount
of hazardous waste generated each month and may change from month to month.
As noted during the inspection,
Respondent failed to notify the Commissioner of hazardous waste generator
activities. Specifically, Respondent has operated as a small quantity generator
of hazardous waste since 2018 without notifying of hazardous waste generator
activities.
Respondent notified of hazardous waste
generator activities in 2021.
c. Pursuant to 40 CFR 262.20(a), a
generator who sends hazardous waste off-site must ensure that manifests are
fully filled out and contain accurate information.
Item 1: Enter
the generator’s U.S. EPA twelve-digit identification number, or the State
generator identification number if the generator site does not have an EPA identification
number.
As noted
during the inspection, Respondent did not include all of
the required information on hazardous waste manifests from 2018 through 2021.
Specifically, hazardous waste manifests failed to include the generator’s U.S.
EPA identification number.
d. Pursuant to 329 IAC 3.1-1-13, the commissioner
shall require the use of identification numbers issued by the U.S.
Environmental Protection Agency.
As noted during the inspection,
Respondent failed to obtain and utilize a U.S. EPA identification number.
Respondent obtained and utilized a U.S.
EPA identification number beginning in October 2021.
e. 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 one
(1) 5-gallon satellite accumulation container of D006, D008 waste in the
Blocking Department with the words “Hazardous Waste.”
Respondent provided photographic
documentation of the properly marked satellite accumulation container on
January 5, 2022.
f. 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 one (1) 5-gallon satellite accumulation container of D006, D008
waste in the Blocking Department with an indication of the hazards of the
contents.
Respondent provided photographic
documentation of the properly marked satellite accumulation container on
January 5, 2022.
g. Pursuant to IC 13-22-4-3.1(b), a
hazardous waste small quantity generator (SQG), i.e., a person that generates,
in any one or more calendar months of a calendar year:
a) more than one hundred (100) kilograms
but less than one thousand (1,000) kilograms of hazardous waste;
b) less
than one (1) kilogram of acute hazardous waste; or
c) less than one hundred (100) kilograms
of material from the cleanup spillage of acute hazardous waste; or
accumulates at least one thousand
(1,000) kilograms of hazardous waste or less than one (1) kilogram of acute
hazardous waste shall, before March 1 of each year, submit to the department on
forms provided by the department, a report that summarizes the person's
hazardous waste shipments during the previous calendar year.
Respondent changed generator status from
a very small quantity generator of hazardous waste to a small quantity
generator of hazardous waste during the years 2018 through 2021. Respondent failed
to submit an annual manifest report for the years 2018 through 2020.
Respondent submitted manifest reports
for 2018 and 2019 on January 11, 2022.
Respondent also submitted the 2020 manifest report in 2021.
h. Pursuant to 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 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, Respondent failed to mark or label eight
(8) four-foot waste fluorescent bulbs with words to accurately identify the
universal waste lamps.
Respondent provided photographic
documentation of properly marked universal waste containers on January 5, 2022.
i. Pursuant to 40
CFR 273.13(d)(1), a small quantity handler of universal waste must contain
any lamp in containers or packages that are structurally sound, adequate to
prevent breakage, and compatible with the contents of the lamps. Such
containers and packages must remain closed and must lack evidence of leakage,
spillage or damage that could cause leakage under reasonably foreseeable
conditions.
As noted during the inspection,
Respondent failed to store eight (8) four-foot waste fluorescent bulbs in the
Connex Storage Area in a closed container.
Respondent provided photographic
documentation of properly closed universal waste containers on January 5, 2022.
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 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 their generator category on a monthly basis.
4. Upon the Effective Date of the Agreed
Order, Respondent shall comply with 40 CFR 262.20(a). Specifically,
Respondent shall ensure that manifests are fully filled out and contain
accurate information.
5. Within
thirty (30) days of the Effective Date, Respondent shall notify the receiving
facility from hazardous waste shipments between 2018 through 2021 of the
revised generator’s EPA identification number. Submit
corrected copies of hazardous waste manifests shipped between 2018 through 2021
documenting the revised generator ID number to IDEM.
6. 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 |
7. Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Ten Thousand Two Hundred Dollars
($10,200). 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.”
8.
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 5 |
$100
per week |
9.
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.
10.
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 |
11.
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
10, above.
12.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
13.
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.
14.
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.
15.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21. 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:
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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 |
________________________, |
20__. |
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For
the Commissioner: |
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Signed 01/28/22 |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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