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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. 2022-28887-H |
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PRECOAT
METALS CORP., |
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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 Precoat Metals Corp.
(“Respondent”), which operates the facility with United States Environmental
Protection Agency (“EPA”) ID No. IND990873606, located at 858 E. Hupp Rd., in
LaPorte, LaPorte 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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Precoat Metals Corp. |
C T Corporation System |
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Attn: Kurt Russell, President |
334 North Senate Ave. |
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635 Maryville Center Dr., Suite 300 |
Indianapolis, IN, 46204, USA |
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Saint Louis, MO, 63141, USA |
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5.
Respondent notified EPA of Large Quantity Generator activities.
6.
The
facility supplies steel and aluminum coil coating services for the automobile,
construction, and appliance industries.
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 August 2, 2022,
conducted by a representative of IDEM, the following violations were found:
a.
Pursuant to 40 Code of Federal Regulations (“CFR”)
262.17, a large quantity generator may accumulate hazardous waste on site
without a permit or interim status, and without complying with the requirements
of parts 124, 264 through 267, and 270 of this chapter, or the notification
requirements of section 3010 of RCRA, provided that all the conditions of
262.17 are met.
Pursuant
to Indiana Code (“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.
At the time of the inspection, IDEM staff
observed a steel 55-gallon drum of spent aerosol cans marked as a hazardous waste
with an accumulation start date of 12/17/19 located in the northwest corner of
the 90-day storage area underneath the racking.
b.
Pursuant to 40 CFR 262.17(a)(1)(ii), if a
container holding hazardous waste is not in good condition, or if it begins to
leak, the large quantity generator must immediately transfer the hazardous
waste from this container to a container that is in good condition, or
immediately manage the waste in some other way that complies with the
conditions for exemption of this section.
At the time of the inspection, IDEM staff
identified one (1) drum of hazardous waste paint located on the west side of
the 90-day storage area dated 7/27/22 that was dented on the bottom and
therefore not in good condition, The drum was located on the inside of the row,
3rd row in from the large door to the north, in the middle of the row.
c.
Pursuant to 40 CFR 262.17(a)(1)(iv)(A), a
container holding hazardous waste must always be closed during storage, except
when it is necessary to add or remove waste.
At
the time of the inspection, IDEM staff identified one (1) 55-gallon drum of
spent aerosol cans in the 90-day temporary storage area that was not properly
closed; the latch was left open in the upright position. Facility staff
corrected the violation during the inspection.
d.
Pursuant to 40 CFR 262.17(a)(5)(i)(B), a large quantity generator must mark or label its
containers with an indication of the hazards of the contents (examples include,
but are not limited to, the applicable hazardous waste characteristic(s) (i.e.,
ignitable, corrosive, reactive, toxic); hazard communication consistent with
the Department of Transportation requirements at 49 CFR part 172 subpart E
(labeling) or subpart F (placarding); a hazard statement or pictogram
consistent with the Occupational Safety and Health Administration Hazard
Communication Standard at 29 CFR 1910.1200; or a chemical hazard label
consistent with the National Fire Protection Association code 704).
At
the time of the inspection, IDEM staff identified six (6) drums of waste paint
on the east side of the 90-day storage area that did not have a label with the
indication of the hazards of the contents. Facility staff corrected the
violation during the inspection.
IDEM
staff identified one (1) 330-gallon tote of chrome liquid on the south side of
the 90-day storage area that did not have a label with the indication of the
hazards of the contents.
IDEM
staff identified one (1) 55-gallon drum of spent aerosol cans date 12/17/19 in
the 90-day storage area that did not have a label with the indication of the
hazards of the contents.
IDEM
staff identified one (1) 55-gallon drum of spent aerosol cans in the 90-day
temporary storage area that did not have a label with the indication of the
hazards of the contents.
e.
Pursuant to 40 CFR 262.17(a)(6) referencing 40
CFR 262.252, all areas where hazardous waste is generated or accumulated must
be equipped with the items in paragraphs (a) through (d) of this section
(unless none of the hazards posed by waste handled at the facility could
require a particular kind of equipment specified below or the actual hazardous
waste generation or accumulation area does not lend itself for safety reasons
to have a particular kind of equipment specified below). A large quantity
generator may determine the most appropriate locations within its facility to
locate equipment necessary to prepare and respond to emergencies:
(a)
An internal communications or alarm system
capable of providing immediate emergency instruction (voice or signal) to
facility personnel;
(b)
A device, such as a telephone (immediately
available at the scene of operations) or a hand-held two-way radio, capable of
summoning emergency assistance from local police departments, fire departments,
or state or local emergency response teams;
(c)
Portable fire extinguishers, fire control
equipment (including special extinguishing equipment, such as that using foam,
inert gas, or dry chemicals), spill control equipment, and decontamination
equipment; and
(d)
Water at adequate volume and pressure to supply
water hose streams, or foam producing equipment, or automatic sprinklers, or
water spray systems.
The
building that housed the 90-day storage area for hazardous waste did not
contain any fire control equipment at the time of inspection. The facility
considered this building a sacrificial building, and if a fire were to break
out in this building, Respondent would have no way to control it.
On
December 21, 2022, IDEM received written documentation stating the 90-day
storage area is equipped with four portable fire extinguishers that meet OHSA
and NFPA requirements and a phone is located inside the building to alert
facility personnel and contact the local police, fire, and state or local
emergency response teams.
f.
Pursuant to 40 CFR 262.17(a)(1)(vi)(B), the
large quantity generator must take precautions to prevent accidental ignition
or reaction of ignitable or reactive waste. This waste must be separated and
protected from sources of ignition or reaction including but not limited to the
following: Open flames, smoking, cutting and welding,
hot surfaces, frictional heat, sparks (static, electrical, or mechanical),
spontaneous ignition (e.g., from heat-producing chemical reactions), and
radiant heat. While ignitable or reactive waste is being handled, the large
quantity generator must confine smoking and open flame to specially designated
locations. “No Smoking” signs must be conspicuously placed wherever there is a
hazard from ignitable or reactive waste.
At
the time of the inspection, it was noted that none of the drums containing
flammable hazardous waste were grounded.
On
December 21, 2022, IDEM received a written response from Respondent informing
IDEM that when facility personnel periodically consolidate partial paint drums
in the building that houses the less than 90-day storage area, pneumatic air
pumps and hoses are used, which are intrinsically safe. Additionally, Respondent
informed IDEM that Danger Signs are posted outside of the building near all
entrances with the words “No Smoking or Open Flames within 40 Feet.”
g.
Pursuant to 40 CFR 262.17(a)(6) referencing 40
CFR 262.255, the large quantity generator must maintain aisle space to allow
the unobstructed movement of personnel, fire protection equipment, spill
control equipment, and decontamination equipment to any area of the facility
operation in an emergency, unless aisle space is not needed for these purposes.
At
the time of the inspection, IDEM staff identified a block of 55-gallon drums
containing hazardous waste paint that was four (4) rows wide. These drums were
located on the east wall of the 90-day storage area, next to the large overhead
door and blocking an exit door. There was not adequate aisle space maintained
in this area to provide unobstructed movement or to conduct a proper inspection
of the middle rows.
h.
Pursuant to 40 CFR 262.15(a)(4), a container
holding hazardous waste must be closed at all times
during accumulation, except: when adding, removing, or consolidating waste; or
when temporary venting of a container is necessary for the proper operation of
equipment, or to prevent dangerous situations, such as build-up of extreme
pressure.
At
the time of the inspection, IDEM staff identified one (1) 55-gallon satellite
container of solvent solids at the front end of the coater in the prime coating
area on the bottom head that was open. In the finish coating area on the top
head, IDEM staff identified one (1) 55-gallon drum of spent solvent at the back
of the coater that was open.
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.”
At
the time of the inspection, one (1) 55-gallon satellite container of hazardous
waste solvent paint was found in the prime coating area on the bottom head, in
the middle of the coater not labeled 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 (examples include, but are not
limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable,
corrosive, reactive, toxic); hazard communication consistent with the
Department of Transportation requirements at 49 CFR part 172 subpart E
(labeling) or subpart F (placarding); a hazard statement or pictogram
consistent with the Occupational Safety and Health Administration Hazard
Communication Standard at 29 CFR 1910.1200; or a chemical hazard label
consistent with the National Fire Protection Association code 704).
At
the time of the inspection, IDEM staff identified one (1) 55-gallon satellite
container of waste paint in the finish coating area on the top head, in the
middle of the coater, that did not have a label on it indicating the hazards of
its contents. Facility staff corrected the violation during the inspection.
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.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.17, IC 13-30-2-1(10), and 40 CFR
270.1(c). Specifically, Respondent shall ensure hazardous waste is not stored
on-site for more than 90 days and if storing hazardous waste on-site more than
90 days, Respondent shall apply for a treatment, storage, and disposal permit.
4.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.17(a)(1)(ii). Specifically, Respondent
shall ensure that all hazardous waste containers are in good condition, or if a
container becomes damaged, immediately transfer the contents to a container in
good condition.
5.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.17(a)(1)(iv)(A). Specifically, Respondent shall ensure
containers holding hazardous waste are always stored closed during storage,
except when it is necessary to add or remove waste.
6.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.17(a)(5)(i)(B),
40 CFR 262.17(a)(5)(ii)(B), and 40 CFR 262.15(a)(5)(ii). Specifically,
Respondent shall ensure accumulated hazardous waste containers and tanks
on-site are marked or labeled with an indication of the hazards of the
contents.
7.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.17(a)(6) referencing 40 CFR 262.252.
Specifically, Respondent shall be equipped with a firehose on site to be used
in the event of a fire.
9.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.17(a)(6) referencing 40 CFR 262.255.
Specifically, Respondent shall provide adequate aisle space in the ignitable
waste storage area.
10.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.15(a)(4). Specifically, ensure satellite container
holding hazardous waste are closed at all times during
accumulation, except when adding, removing, or consolidating waste.
11.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.17(a)(5)(i)(A),
40 CFR 262.17(a)(5)(ii)(A), and 40 CFR 262.15(a)(5)(i).
Specifically, Respondent shall ensure all hazardous waste containers and tanks
on-site are marked or labeled with the words “Hazardous Waste.”
12.
Effective
immediately, Respondent shall comply with 40 CFR 262.253. Specifically,
Respondent shall ensure that all fire extinguishers on site are maintained and
inspected regularly.
13.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise
in writing, shall be sent to:
Elizabeth
Phillips, Enforcement Case Manager
Office
of Land Quality
Indiana
Department of Environmental Management
100
North Senate Avenue
Indianapolis,
IN 46204-2251
14.
Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Twenty-Eight Thousand Dollars ($28,000).
Respondent shall pay by the due date printed on the Invoice, as attached.
15.
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.
16.
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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$100
per week |
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4 |
$100
per week |
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5 |
$100
per week |
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6 |
$100
per week |
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7 |
$100
per week |
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$100
per week |
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9 |
$100
per week |
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10 |
$100
per week |
17.
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.
18.
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 “Hazardous
Substance Response Trust Fund” and shall be payable to IDEM in the manner specified
in Paragraph 15, above.
19.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
20.
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.
21.
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.
22.
Respondent shall
ensure that all contractors, firms, and other persons performing work under
this Agreed Order comply with the terms of this Agreed Order.
23.
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.
24.
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.
25.
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.
26.
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 violation specified in the NOV.
27.
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.
28.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
REMAINDER
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TECHNICAL
RECOMMENDATION: Department
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Jennifer
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Compliance
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Date: |
3/30/2023 |
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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
May 3, 2023 |
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Peggy
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Assistant
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