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. 2022-28821-H
					)
Lowe’s Home Centers, 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 Lowe’s Home Centers, LLC (“Respondent”), which operates the facility with United States Environmental Protection Agency (“EPA”) ID No. INR000002675 located at 1301 JFK Drive in North Vernon, Jennings 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:

Corporation Service Company, Registered

Agent for Lowe’s Home Centers, LLC

135 North Pennsylvania Street, Suite 1610

Indianapolis, IN 46204

5. Respondent notified EPA of Large Quantity Generator activities on September 8, 2021.

6. 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.

7. During an investigation including an inspection and a record review on July 19, 2022 conducted by a representative of IDEM, the following violations were found:

a. 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.” Specifically, Respondent failed to mark or label one (1) fifty-five (55) gallon container located in the Hazmat Storage Shed with the words “Hazardous Waste.”

On January 26, 2023, Respondent submitted photo documentation showing “Hazardous Waste” labels on containers in the Hazmat Storage Shed.

b. 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. Specifically, Respondent failed to label or mark three (3) fifty-five (55) gallon containers located in the Hazmat Storage Shed with an indication of hazard.

On January 26, 2023, Respondent submitted photo documentation showing indication of hazard labels on containers in the Hazmat Storage Shed.

c. 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 a hazardous waste container with accumulation start date. Specifically, Respondent failed to mark or label one (1) fifty-five (55) gallon container located in the Hazmat Storage Shed with the accumulation start date.

On January 26, 2023, Respondent submitted photo documentation showing accumulation start dates on containers in the Hazmat Storage Shed.

d. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and above ground tanks with the words "Used Oil."

As noted during the inspection, one (1) 275-gallon tote located in the Maintenance shop was not labeled “Used Oil.”

Labels were given to Respondent’s representative at the time of the inspection and the container was labeled.

e. 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, four (4) 2-ft. containers of spent fluorescent lamps were being stored without the words “Universal Waste Lamps” or “Waste Lamps” or “Used Lamps” in the Server Room.

On January 26, 2022, Respondent submitted photo documentation showing “Universal Waste Lamp(s)” labels on containers in the Server Room.

f. Pursuant to 40 CFR 273.14, universal waste batteries, or a container in which the batteries are contained, must be labeled or marked clearly with any one of the following phrases: “Universal Waste-Battery(ies),” or “Waste Battery(ies),” or “Used Battery(ies).”

As noted during the inspection, one (1) five (5) gallon container of waste lithium-ion batteries were being stored without the words “Universal Waste Batteries” or “Waste Batteries” in the Server Room.

On January 26, 2023, Respondent submitted photo documentation showing “Universal Waste Battey(ies)” labels on containers in the Server Room.

g. Pursuant to 40 CFR 273.13, a universal waste handler must contain wastes in containers that are in good condition, compatible with the waste, closed, and lack evidence of leakage.

As noted during the inspection, four (4) 2-ft. containers of universal waste bulbs were not properly contained. Specifically, the bulbs were stored in open boxes.

On January 26, 2023, Respondent submitted photo documentation showing container of bulbs was properly closed.

h. 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.

Pursuant to IC 13-30-2-1(10), a person may not 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), RCRA requires a permit for the treatment, storage, or disposal of any hazardous waste as identified or listed in 40 CFR Part 261.

Specifically, three (3) fifty-five (55) gallon containers of hazardous waste were stored for greater than 90 days in the Hazmat Storage Area. One container of D002 organic peroxide was dated 4/3/22, one container of D002 liquid oxidizer was dated 1/28/22, and one container of multi-coded toxic waste was dated 4/8/22.

On January 19, 2023, Respondent provided manifest showing the waste has been appropriately disposed of.

i. Pursuant to 40 CFR 262.17(a)(7)(i), (ii), and (iii), facility personnel must complete a program of classroom instruction, online training, or on-the-job training that teaches them to perform their duties in compliance with the hazardous waste management rules. Employees must be trained within six months after their date of hire and must take part in an annual review of the initial training.

As noted during the inspection, Respondent did not provide initial hazardous waste training.

On January 26, 2023, Respondent submitted documentation of competition of training.

j. 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 inspection, Respondent did not maintain all of the required hazardous waste training related documents and records on-site. Specifically, the hazardous waste training documents and records information for the Hazmat Team, Emergency Coordinators, and on-site security that have hazardous waste management duties.

On January 26, 2023, Respondent submitted training records for Hazmat Team, Emergency Coordinators and on-site security.

8. 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. Upon the Effective Date, Respondent shall comply with 40 CFR 262.17(a)(7)(iv). Specifically, Respondent shall maintain hazardous waste training and records on-site for the Hazmat Team, Emergency Coordinators, and on-site security that have hazardous waste management duties.

4. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Six Thousand Eight Hundred ($6,800). After this Agreed Order is adopted (signed by the Assistant Commissioner of the Office of Land Quality), Respondent shall pay by the due date printed on the Invoice that will be attached to the adopted Agreed Order.

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:

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 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.

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

7. 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.

8. 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.

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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 February 2, 2023
			Peggy Dorsey
			Assistant Commissioner
			Office of Land Quality