|
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. 2021-28246-H |
|||
|
|
|
) |
|
||||
|
Nippon express usa incorporated, |
|
) |
|
||||
|
|
|
) |
|
||||
|
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 Nippon Express USA Incorporated (“Respondent”), which operates the facility
with United States Environmental Protection Agency (“EPA”) ID No. INR000144089,
located at 3810, Suite 188, Plainfield, in Indianapolis, Hendricks 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:
|
Nippon
Express USA Incorporated |
|
Attn:
Angela Rich, Sr. Customer Service Coordinator |
|
3810
Plainfield Road, Suite #188 |
|
Indianapolis,
IN 46231 |
5.
Respondent
notified IDEM it was a non-handler of hazardous waste in June 2018.
6.
Nippon
Express USA Inc. is an international freight forwarding company that specializes
in automotive products. It operated at the Hanna Circle address from 11/08/2013
until 05/09/2020. The facility previously generated (D001) hazardous waste in
2017 due to expired styrene varnish. The expired styrene varnish was disposed
of in April 2020 and this action placed the facility into the large quantity
generator (LQG) category of hazardous waste generation.
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 28, 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, the Respondent failed to notify IDEM that it operated as
a Large Quantity Generator (“LQG”) of hazardous waste in March 2020.
On January 26,
2022, Respondent submitted documentation notifying the commissioner of it
hazardous waste activity according to 329 IAC 3.1-1-10.
b.
Pursuant to 329 IAC 3.1-1-10, ever hazardous
waste generator, transporter, 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, the Respondent failed to notify the Commissioner of
hazardous waste LQG activities. The facility operated as a LQG for at least one
calendar month in 2020 according to manifest (012217915 FLE).
On January 26,
2022, Respondent submitted documentation notifying the commissioner of it
hazardous waste activity according to 329 IAC 3.1-1-10.
c.
Pursuant to 40 CFR 262.17(a)(6) referencing 40
CFR 262.260(a), a LQG must have a contingency plan for the facility. The
contingency plan must be designed to minimize hazards to human health or the
environment from fires, explosions, or any unplanned sudden or non-sudden
releases of hazardous waste or hazardous waste constituents to air, soil, or
surface water.
As noted in
the inspection, the Respondent did not develop a contingency plan as required
for LQGs.
On January 26,
2022, Respondent submitted a contingency plan. IDEM reviewed the plan and
determined it was inadequate because the quick reference guide was not
included.
d.
Pursuant
to 40 CFR 262.17(a)(7)(iv), a LQG must maintain the following documents and
records at the facility:
(A) The job title for each person at the facility related to
hazardous waste management, and the name of the employee filling each job;
(B) A written job description for each position listed under
paragraph (a)(7)(iv)(A) of this section. This description may be consistent in
its degree of specificity with descriptions for other similar positions in the
same company location or bargaining unit, but must include the requisite skill,
education, or other qualifications, and duties of facility personnel assigned
to each position;
(C) A written description of the type and amount of both
introductory and continuing training that will be given to each person filling
a position listed under paragraph (a)(7)(iv)(A) of this section;
(D) Records that document that the training or job experience,
required under paragraphs (a)(7)(i), (ii), and (iii)
of this section, has been given to, and completed by, facility personnel.
As noted in
the inspection, the Respondent did not have the required personnel training
documentation for the individuals who managed hazardous waste.
On February 8,
2022, Respondent submitted all requested documentation and records according to
40 CFR 262.17(a)(7)(iv).
e.
Pursuant
to 40 CFR 262.17(a)(9) referencing 40 CRF 268.7(a), with the initial shipment
of hazardous 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
for the waste and place a copy in the file.
On January 26,
2022, Respondent submitted documentation according to 40 CFR 262.17(a)(9).
f.
Pursuant
to IC 13-22-4-3.1(c), a person that in any one (1) or more calendar years
generates more than one thousand (1,000) kilograms of hazardous waste shall,
before March 1 of each year, submit to the department either the biennial
report required by the U.S. EPA concerning the person’s hazardous waste
activities during the previous calendar year, or an annual report on forms
provided by the department, containing no more than a compilation of
information from the Uniform Hazardous Waste Manifest form described in section
1(a) of this chapter, that summarized the person’s hazardous waste shipment
during the previous calendar year.
g.
As noted in the inspection, the Respondent
generated LQG volumes of hazardous waste in 2020 and failed to submit the
required annual hazardous waste report.
On February
8, 2022, Respondent submitted the requested annual hazardous waste report according
to IC 13-22-4-3.1(c).
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 statutes and rules listed in the
findings of fact above.
3.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.17(a)(6) referencing 40 CFR
262.262(b). Specifically, Respondent
shall submit to IDEM a quick reference guide of the contingency plan.
4.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Six
Thousand Six Hundred Dollars ($6,600.00). 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.”
The civil penalty is payable to the
Environmental Management Special Fund by:
Mail:
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:
|
Indiana
Department of Environmental Management |
|
Accounts
Receivable |
|
IGCN, Room
1340 |
|
100 North
Senate Avenue |
|
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.
5.
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:
|
Paragraph |
Stipulated Penalty |
|
Order
paragraph 3 |
$100
per week |
6.
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.
7.
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 4,
above.
8.
Signatories
to this Agreed Order certify that they are fully authorized to execute this
Agreed Order and legally bind the party they represent.
9.
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.
10.
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.
11.
Respondent
shall ensure that all contractors, firms, and other persons performing work
under this Agreed Order comply with the terms of this Agreed Order.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
|
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
||||
|
Department
of Environmental Management |
|||||
|
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 on 2/22/22 |
|||||
|
Peggy
Dorsey, Assistant Commissioner |
|||||
|
Office
of Land Quality |
|||||