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. 2023-29512-H
					)
h.b. fuller company					)
					)
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 H.B. Fuller Company which operates the facility with EPA ID No. IND985097559, located at 1945 North Bendix Drive, South Bend, in St Joseph, 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:

CT Corporation System, Registered Agent for

H.B. Fuller Company

334 North Senate Avenue

Indianapolis, IN 46204

5. Respondent notified EPA of Small Quantity Generator activities on April 22, 2021.

6. The facility operates an aerosol can/canister line that fills pressurized canisters and small cans with adhesive and flush 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. During an investigation including an inspection on June 12, 2023 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 waste generated each month and may change from month to month.

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 inspection, Respondent failed to determine its proper generator category and failed to notify the commissioner of hazardous waste activities. Respondent operated as a large quantity generator of hazardous waste in 2022 while being notified as a small quantity generator.

b. 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 required by the United States Environmental Protection Agency (“U.S. EPA”) 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 required by the U.S. EPA by March 1 of each even numbered year and the IDEM annual manifest report by March 1 of each odd numbered year.

As noted during the inspection, Respondent changed generator status from a small quantity generator of hazardous waste to a large quantity generator of hazardous waste during the year 2022. Respondent failed to submit an annual manifest report for the year 2023.

On June 7, 2023, Respondent submitted an annual manifest report/notification for the

year 2022.

c. 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 a permit, and did not label or clearly mark one (1) 55-gallon drum of waste aerosols (D001) with the words “Hazardous Waste.”

This violation was corrected at the time of the inspection.

d. 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 without a permit, and did not label or clearly mark two (2) 55-gallon drums of waste aerosols (D001) in the Production Area and four (4) 55-gallon drums of waste aerosols (D001) and one (1) 55-gallon drum of waste flammable liquids (D001, F003, F005) in the Hazardous Waste Storage Area with an indication of the hazards of the contents.

This violation was corrected at the time of the inspection.

e. 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 without a permit, and did not mark three (3) drums of waste aerosols (D001), one (1) 55-gallon drum of waste solids containing flammable liquids (D001, F003, F005), and one (1) 55-gallon drum of waste flammable liquids (D001, F003, F005) in the Hazardous Waste Storage Area with accumulation start dates.

This violation was corrected at the time of the inspection.

f. 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 inspection, Respondent accumulated hazardous waste in containers at or near the point of generation without a permit and did not properly mark a satellite accumulation drum of waste solids containing flammable liquids (D001, F003, F005) near the Set-up Room entrance with the indication of hazards of the contents.

This violation was corrected at the time of the inspection.

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 inspection, Respondent failed to develop a quick reference guide.

On June 9 and June 12, 2023, Respondent provided a quick reference guide.

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 rule listed in the findings of fact above.

3. Upon the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR 262.13. Specifically, Respondent shall determine their generator category on a monthly basis.

4. All submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent to:

Samantha Nunnery, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

5. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Five Thousand Two Hundred Dollars ($5,200). 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 “Indiana Department of Environmental Management” by:

Mail:

Civil penalties are payable by check to the “Indiana Department of Environmental Management.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Accounts Receivable

P.O. Box 3295

Indianapolis, IN 46206

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 $0.40 plus 2.06% will be charged for credit card payments.  A processing fee of $0.15 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 $0.40 plus 2.06% will be charged for credit card payments.  A processing fee of $0.15 will be charged for eCheck payments.

The Case Number is required to complete the process.

6. 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 “Indiana Department of Environmental Management,” and shall be payable to IDEM in the manner specified in Paragraph 5, above.

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

8. 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.

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

REMAINDER OF PAGE LEFT BLANK INTENTIONALLY

TECHNICAL RECOMMENDATION:			RESPONDENT:
Department of Environmental Management
By:			By:
	Jennifer Reno, Chief		Printed:
	Land Enforcement Section		Title:
	Compliance Branch
	Office of Land Quality
Date:	10/30/23		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 1/10/2024
			Peggy Dorsey
			Assistant Commissioner
			Office of Land Quality