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. 2022-28672-H

 

 

)

 

FLYERVOL PROPERTIES 01, LLC,

 

)

 

 

 

)

 

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 FlyerVol Properties 01, LLC, which owns the Site where the former Muncie Precision Hard Chrome facility (“MPHC”) once operated under EPA ID No. IND984868117, located at 1001 E. 18th Street, in Muncie, Delaware County, Indiana (“Site”).

 

3.            Respondent did not conduct waste-generating operations at the Site. Respondent is holding the Site to secure environmental restrictions on the Site for MPHC to complete its IDEM-approved Closure Plan connected to its historic chrome-plating operations at the Site (“MPHC Closure Plan”).

 

4.            IDEM approved the former MPHC RCRA Closure Plan on April 2, 2019 [VFC# 82739693]. A RCRA Closure Report was received on March 10, 2020 [VFC# 82945441] that IDEM responded to on June 5, 2020. IDEM did not approve the Closure Report because (1) Item 1 remains incomplete and (2) the remaining HWMA-1 concrete footers will have to be addressed either through removal (if the building is demolished) or with an appropriate environmental restrictive covenant (“ERC”) (if the building remains in place) [VFC #82980073].

 

5.            Respondent conducts interim remediation measures as a part of the Closure Plan, to include monthly inspections and recovery of chromium contaminated water [D007] from within the HWMA-1 sump. The recovered chromium contaminated water [D007] is staged within HWMA-1 in three (3) 275-gallon totes and vacuumed out periodically. This remediation-derived waste (“RDW”) and other investigation-derived waste (“IDW”) associated with addressing the remaining items of the MPHC Closure Plan, all of which are generated and managed by MPHC, are the only wastes that will be generated under Respondent’s ownership.

 

6.            A “Notice and Order of the Commissioner of the Department of Environmental Management,” was filed on June 12, 2012, against MPHC and Muncie Warehousing Technologies, Inc. (“MWT”) [VFC# 66183914]. MPHC and MWT, failed to comply with the terms of the Order.

 

7.            A “Judgment and Order Against Respondent,” was filed October 8, 2013, against MPHC and MWT [VFC# 83126150]. The Closure Plan remains responsive to that Judgment.

 

8.            An “Agreed Partial Satisfaction of Judgment,” was filed October 6, 2021 [VFC# 83354625], against MPHC and MWT, which required MWT to enter into a mutually acceptable purchase agreement to sell the Site to Respondent. MPHC’s completion of the MPHC Closure Plan will fully satisfy the Judgment.

 

9.            Respondent purchased the Site from MWT on March 4, 2022, to allow MPHC to complete its Closure Plan obligations. At that time, Respondent re-established access. MPHC’s consultant, The ELAM Group, has spent over 165 hours inventorying materials in the building leftover from MWT, properly shipping them out for reuse and/or recycling and disposing of RDW and/or IDW associated with efforts to address the releases to the environment as required by Item 1 of the MPHC Closure Plan.

 

10.         IDEM has jurisdiction over the parties and the subject matter of this action.

11.         Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

 

James Hogan, Manager

James B. Williams, Registered Agent

FlyerVol Properties 01, LLC

FlyerVol Properties 01, LLC

161 Lakeview Drive

15936 Symphony Blvd.

Noblesville, Indiana 46060

Noblesville, Indiana 46060

james.hogan@elamusa.com

 

 

12.         MPHC notified EPA of Small Quantity Generator activities on February 21, 2019.

 

13.         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.

 

14.         During an investigation including an inspection on May 5, 2022, conducted by a representative of IDEM, the following violations were found:

 

a.       Pursuant to 40 CFR 262.11(a),  A person who generates a solid waste must determine if that waste is a hazardous waste at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste such that the RCRA classification of the waste may change.

 

As noted during the inspection, Respondent did not make hazardous waste determinations on approximately 25 containers, which contained oils, sealants, paint remover, resins, and herbicides, solid wastes generated by Respondent.

 

Upon acquisition of the Site on March 4, 2022, and re-assessment of the 25 containers, Respondent found that MWT’s usable materials remained usable and/or recyclable. None were determined to be solid waste. Subsequently, Respondent removed all these items from the Site for reuse or recycling.

 

b.         Pursuant to 40 CFR 262.17(a), a large quantity generator that accumulates hazardous waste on site for more than 90 days is an operator of a storage facility and is subject to the requirements of 40 CFR Part 264 and the permit requirements of 40 CFR Part 270 unless he has been granted an extension to the 90 day period.

 

As noted during the inspection, three (3) 275-gallon totes containing chromium contaminated water [D007], was stored on-site within HWMA-1 for greater than 90 days without complying with 40 CFR Part 264 and 40 CFR Part 270. The totes were generated by MPHC and were labeled with an accumulation start date of December 21, 2021.

 

Following acquisition of the Site on March 4, 2022. Respondent properly disposed of the material in the three (3) 275-gallon totes containing chromium contaminated water [D007] on May 12, 2022.

 

c.         Pursuant to IC 13-30-2-1(10), a person may not commence or engage in the operation of a hazardous waste facility without having first obtained a permit from the department.

Pursuant to 40 CFR 270.1(c), a permit is required for the treatment, storage and disposal of any hazardous waste as identified or listed in 40 CFR Part 261.

 

As noted during the inspection, Respondent operated a hazardous waste facility without having first obtained a permit from the department. Specifically, Respondent stored hazardous waste, three (3) 275-gallon totes containing chromium contaminated water [D007], identified or listed in 40 CFR Part 261 without a permit.

 

On May 12, 2022, Respondent disposed of the material in the three (3) 275-gallon totes containing chromium contaminated water [D007] following Respondent’s acquisition of the Site on March 4, 2022.

 

d.         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 container accumulation area(s).

 

Respondent resumed weekly inspections of container accumulation area(s) following acquisition of the Site on March 4, 2022.

 

e.         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, three (3) 275-gallon totes containing chromium contaminated water [D007], was stored on-site within HWMA-1 without being labeled or marked with an indication of the content hazards. The totes were generated and labeled by MPHC in December 2021.

 

On May 5, 2022, Respondent correctly labeled/marked and disposed of the material in the three (3) 275-gallon totes containing chromium contaminated water [D007] following Respondent’s acquisition of the Site on March 4, 2022.

 

f.          Pursuant to 40 CFR 262.17(a)(6) referencing 40 CFR 262.256, a large quantity generator must attempt to make arrangements with local emergency authorities to familiarize them with the facility.

 

As noted during the inspection, Respondent did not attempt to make these arrangements with local emergency authorities.

 

Respondent prepared a Contingency Plan for the Site for the generation of IDW and RDW in addition to the preexisting Site-specific HASP and informed the local Fire Department of the same. IDEM was provided a courtesy copy of the Contingency Plan.

 

g.         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.

 

Respondent prepared a Contingency Plan for the Site for the generation of IDW and RDW in addition to the preexisting Site-specific HASP and informed the local Fire Department of the same. IDEM was provided a courtesy copy of the Contingency Plan.

 

h.         Pursuant to the “Judgment and Order Against Respondents” Cause No.: 18C02-1301-PL-0004, issued October 8, 2013 [VFC # 83126150], Order No. 7, within five (5) days of the Effective Date, MPHC and MWT shall provide security at the Site in order to minimize the unauthorized entry of persons onto the Site, pursuant to 40 CFR 264.14.

 

As noted during the inspection, security was not provided at the Site.

 

Upon acquisition of the Site on March 4, 2022, Respondent immediately secured the Site with new locks on the building’s entry points and by boarding up open windows accessible at ground level.

 

15.         On August 1, 2022, The ELAM Group updated IDEM that all noted violations stemming from MWT and MPHC that were observed during IDEM’s inspection on May 5, 2022, were addressed [VFC# 83362044].

 

16.         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.            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). Respondent shall pay by the due date printed on the Invoice, as attached.

 

Civil 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:

 

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.

 

4.            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 3, above.

 

5.            Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

 

6.            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.

 

7.            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.

 

8.            Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

9.            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.

 

10.         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.

 

11.         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.

 

12.         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.

 

13.         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.

 

14.         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, Chief

Printed:

 

 

Land Enforcement Section

Title:

 

 

Compliance Branch

 

 

 

Office of Land Quality

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

By:

 

 

 

Printed:

 

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 20_____

 

 

 

 

 

 

For the Commissioner:

 

 

Signed 1/30/2023

 

 

 

 

Peggy Dorsey

 

 

Assistant Commissioner

 

 

Office of Land Quality