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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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Complainant, |
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Case No. 2021-28231-H |
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BRULIN
HOLDING COMPANY, 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 Brulin Holding Company, Inc.
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. IND006414692, located at 2920 Dr
Andrew J Brown Avenue, 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”) via Certified Mail to:
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Charles
Pollnow, CEO |
Kim
Essenburg, Registered Agent |
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Brulin Holding Company, Inc. |
Brulin Holding Company, Inc. |
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2920
Dr Andrew J Brown Avenue |
2920
Dr Andrew J Brown Avenue |
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Indianapolis,
Indiana 46205 |
Indianapolis,
Indiana 46205 |
5.
Respondent notified EPA of Large Quantity
Generator activities on January 19, 2021.
6.
Respondent manufactures cleaning and sanitation
products.
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.
Respondent
operated as a large quantity generator in February 2020 and was inspected as a
large quantity generator during the August 3, 2021
inspection, at which time twenty-six (26) containers of expired materials were
documented as being stored for six (6) months or greater. After completion of a
waste determination in October 2021, only four (4) containers were determined
to be hazardous and stored for greater than 180 days at the time of the August
3, 2021 inspection.
9.
During
an investigation, including record reviews on July 29, 2021
and November 4, 2021 and an inspection on August 3, 2021, conducted by a
representative of IDEM, the following violations were found:
a.
Pursuant to 40 CFR 262.13(a), a generator who either generates acute
hazardous waste or non-acute hazardous waste in a calendar month shall
determine its generator category for that month by doing the following:
(1) Counting the total amount of hazardous
waste generated in the calendar month;
(2) Subtracting from the total any amounts of
waste exempt from counting as described in paragraphs (c) and (d) of
this section; and
(3) Determining the resulting generator
category for the hazardous waste generated using Table 1 of this section.
As noted during the July 29, 2021 record review, Respondent failed to notify the
Commissioner of a status change to hazardous waste generator activities.
Respondent notified as a conditionally exempt small quantity generator [now
very small quantity generator] of hazardous waste on February 7, 2008. In 2020, while operating as a very small
quantity generator, Respondent became a large quantity generator as indicated
by the following manifest: Manifest
#020898135JJK, dated February 25, 2020, 4,420.36 pounds of waste flammable
liquid [D001].
b.
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 July 29, 2021 record review, Respondent failed to notify the
Commissioner of a status change to hazardous waste generator activities.
Respondent notified as a conditionally exempt small quantity generator [now
very small quantity generator] of hazardous waste on February 7, 2008. In 2020, while as very small quantity
generator, Respondent became a large quantity generator as indicated by the
following manifest: Manifest #020898135JJK,
dated February 25, 2020, 4,420.36 pounds of waste flammable liquid [D001].
c.
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 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 by March 1 of each even
numbered year and the IDEM annual manifest report by March 1 of each odd
numbered year.
Respondent accumulated over 2,000
kilograms or 4,420.36 pounds of waste
flammable liquid [D001] in February 2020 and notified as a conditionally
exempt small quantity generator [now very small quantity generator] of
hazardous waste on February 7, 2008. IDEM
has no indication that Respondent ceased large quantity generator activities at
the Site in 2020, and thus believes that Respondent should have submitted a
2020 annual manifest report by March 1, 2021.
d.
Pursuant to 40 CFR 273.14(e) and 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 one of the following
phrases: “Universal Waste - Lamp(s),” or “Waste Lamp(s),” or “Used Lamp(s)” or
other words
that accurately identify the universal waste lamps may be used.
As
noted during the August 3, 2021 inspection, Respondent
stored ten (10) used fluorescent lamps without labeling in the Maintenance
Area.
e.
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 August 3, 2021 inspection, Respondent
stored ten (10) used fluorescent lamps without a container in the Maintenance
Area.
f.
Pursuant to 40 CFR 262.17(a)(6) referencing 40
CFR 262.261, the content of the contingency plan must include the following: a
description of appropriate actions, arrangements with local emergency response
teams, contact information for the emergency coordinators, emergency equipment,
and an evacuation plan.
As noted during the August 3, 2021 inspection, Respondent did not have the required
information for the emergency coordinator(s).
g.
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:
(1)
The
types/names of hazardous wastes in layman’s terms and the associated hazard
associated with each hazardous waste present at any one time.
(2)
The
estimated maximum amount of each hazardous waste that may be present at any one
time.
(3)
The
identification of any hazardous wastes where exposure would require unique or
special treatment by medical or hospital staff.
(4)
A
map of the facility showing where hazardous wastes are generated, accumulated and treated and routes for accessing these
wastes.
(5)
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.
(6)
The
locations of water supply.
(7)
The
identification of on-site notification systems; and
(8)
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 August 3, 2021 inspection, Respondent did not have a Quick Reference
Guide.
h.
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 August 3, 2021 inspection, Respondent did not maintain all of the
required hazardous waste training related documents and records on-site.
i.
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 August 3, 2021 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 with the words “Hazardous
Waste.”
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.
As noted during the August 3, 2021 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 with an
indication of the hazards of the contents.
k.
Pursuant to 40 CFR 262.16(b)(9)(ii), the small
quantity generator must 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.
As noted during the August 3, 2021 inspection and subsequent record review on November 3,
2021, Respondent failed to post the required information next to the telephone.
10.
On
or before October 22, 2021, Respondent completed required actions to correct
the violations as stated in Findings of Fact paragraphs #9a through #9k.
11.
The
August 3, 2021 inspection and subsequent record review
on November 3, 2021, noted twenty-six (26) containers stored at the Site. The
containers were expired products waiting a determination for reuse in the
manufacturing process. At the time of the inspection, the containers were not
considered a waste.
12. 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, Respondents 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 Respondents.
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.
Respondent shall actively manage expired
materials such that there shall be no expired materials in storage awaiting
production demand for more than twelve (12) months.
4.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.16(b)(9)(ii). Specifically, Respondent shall
post the required information next to the telephone.
5.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise
in writing, shall be sent to:
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Linda
McClure, 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 |
6.
Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Eight Thousand Four Hundred Dollars
($8,400). Respondent shall pay by the due date printed on the Invoice, as
attached.
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.
7.
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 4 |
$100
per week |
8.
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.
9.
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
6, above.
10.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
11.
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.
12.
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.
13.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL
RECOMMENDATION: Department
of Environmental Management |
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COUNSEL FOR
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For
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Signed
5/16/2022 |
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Peggy
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Assistant
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