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. 2024-30184-H

 

 

)

 

Flex dies, llc and

Atlas chem milling,

 

)

)

 

 

 

)

 

Respondents.

 

)

 

 

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. Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents 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 Atlas Chem Milling (“Respondent”), owns and operates the facility, with EPA ID No.: IND092043595, located at 1627 West Lusher Avenue, in Elkhart, Elkhart County, Indiana (“Site”).

 

3.                  Respondent Flex Dies, LLC is also an operator of the facility (pursuant to certain hazardous waste manifests in IDEM’s files), with EPA ID No.: IND092043595, and owns the property, parcel # 20-06-18-201-006.000-011, located at 1627 West Lusher Avenue, in Elkhart, Elkhart County, Indiana (“Site”).

 

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

 

5.                  Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via certified mail to:

 

Christopher Benedict Merendino, CEO

Corporation Service Company, Registered Agent for

Flex Dies, LLC

Flex Dies, LLC

2960 Technology Drive

135 North Pennsylvania Street, Suite 1610

Rochester Hills, MI 48309

Indianapolis, IN 46204

 

 

Leslie Kuhn, Facility Manager

 

Atlas Chem Milling

 

1627 West Lusher Avenue

 

Elkhart, Indiana 46517

 

 

6.                  Respondent notified EPA of Large Quantity Generator activities on February 7, 2024.

 

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 inspections on February 5, 2024 and April 30, 2024, 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 on February 5, 2024, Respondents did not conduct hazardous waste determinations on approximately sixty-one (61) containers which contained solid wastes generated by Respondent.

 

Prior to the April 30, 2024 inspection, Respondents submitted documentation of hazardous waste determination and proper disposal of approximately 44 containers, tank residues, and fluids from machine reservoirs.

 

As noted during the inspection on April 30, 2024, there remained approximately fifteen (15) containers in Bulk Storage, identified during the February 5, 2024 inspection, that required a hazardous waste determination.

 

b.         Pursuant to 40 CFR 262.17(b), 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 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 on February 5, 2024, Respondents stored two (2) containers of hazardous waste identified or listed in 40 CFR Part 261, without a permit, on-site for greater than 90 days without complying with 40 CFR Part 264 and 40 CFR Part 270.

 

c.         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 February 5, 2024 inspection, Respondents failed to notify the Commissioner of hazardous waste storage activities.

 

d.         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.

 

As noted during the inspections on February 5, 2024 and April 30, 2024, Respondents did not accumulate containers of hazardous waste closed.

 

e.         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 on February 5, 2024, Respondents failed to conduct weekly inspections of the Central Accumulation Area.

 

f.          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 on April 30, 2024, Respondents accumulated hazardous waste on-site, without a permit, and did not label or clearly mark hazardous waste containers with the words "Hazardous Waste."

 

g.         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 inspections on February 5, 2024 and April 30, 2024, Respondents accumulated hazardous waste on-site, without a permit, and did not label or clearly mark containers with an indication of the hazards of the contents.

 

h.         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 inspections on February 5, 2024 and April 30, 2024, Respondents accumulated hazardous waste on-site, without a permit, and did not mark hazardous waste containers with accumulation start dates.

 

i.          Pursuant to 40 CFR 262.17(a)(2), referencing 40 CFR 265.192(a), a large quantity generator with a new tank system must have a written assessment certified by a qualified professional engineer in accordance with 40 CFR 270.11(d) attesting that the system has sufficient structural integrity.

 

As noted during the February 5, 2024 inspection, Respondents did not provide the required written assessment for the fiberglass 2,000 gallon (approximately) hazardous waste tank.

 

j.          Pursuant to 40 CFR 262.17(a)(2) referencing 40 CFR 265.195, a large quantity generator must inspect tank systems once each operating day. Large quantity generators of tank systems that either use leak detection equipment to alert facility personnel to leaks, or implement established workplace practices to ensure leaks are promptly identified, must inspect tank systems at least weekly. Use of the alternate inspection schedule must be documented.

 

As noted during the inspections on February 5, 2024 and April 30, 2024, Respondents did not conduct the required inspections.

 

k.         Pursuant to 40 CFR 262.17(a)(6) referencing 40 CFR 262.251, a large quantity generator must maintain and operate the facility to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment.

 

As noted during the inspection on February 5, 2024, Respondents failed to properly manage Etching Room to minimize a release to the environment.

 

l.          Pursuant to 40 CFR 262.17(a)(6) referencing 40 CFR 262.263, a facility’s contingency plan must be amended whenever applicable regulations are revised; the plan fails in an emergency; the facility changes its design, construction, or operation; or the list of emergency coordinators or emergency equipment changes.

 

As noted during the February 5, 2024 inspection, Respondents failed to amend the contingency plan to reflect the correct emergency coordinator.

 

m.        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 inspections on February 5, 2024 and April 30, 2024, Respondents failed to have a Quick Reference Guide.

 

n.         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 February 5, 2024 inspection, Respondents did not attempt to make these arrangements.

 

o.         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 inspections on February 5, 2024 and April 30, 2024, Respondents did not provide one (1) employee with initial hazardous waste training.

 

p.         Pursuant to 40 CFR 262.17(a)(8)(ii)(A), a large quantity generator must notify EPA no later than 30 days prior to closing the facility.

 

As noted during the inspections on February 5, 2024 and April 30, 2024, Respondents failed to notify EPA of the facility closing. To date, IDEM has not been properly notified of the facility closing.

 

q.         Pursuant to 40 CFR 273.14(e), regarding Universal Waste lamps, each lamp or a container or package in which such lamps are contained must be labeled or marked clearly with one of the following phrases: “Universal Waste—Lamp(s),” or “Waste Lamp(s),” or “Used Lamp(s)”.

 

Pursuant to 329 IAC 3.1-16-2(a)(4), exceptions and additions to 40 CFR 273 include the following: “In addition to the labeling and marking requirements in 40 CFR 273.14(e) add the following: Other words that accurately identify the universal waste lamps may be used.”

 

As noted during the inspections on February 5, 2024 and April 30, 2024, Respondents did not label a universal waste (lamps) container as required.

 

r.          Pursuant to 40 CFR 273.13(d)(1), a small quantity handler of universal waste must contain any lamp in containers or packages that are structurally sound, adequate to prevent breakage, and compatible with the contents of the lamps. Such containers and packages must remain closed and must lack evidence of leakage, spillage or damage that could cause leakage under reasonably foreseeable conditions.

 

As noted during the inspection on February 5, 2024 and April 30, 2024, Respondents failed to store a universal waste (lamps) container closed.

 

s.          Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground tanks with the words “Used Oil.”

 

As noted during the inspections on February 5, 2024 and April 30, 2024, Respondents did not label used oil containers with the words “Used Oil.”

 

t.          Pursuant to 40 CFR 261.4(b)(18)(v)(A), generators must maintain at their site the following documentation:

(A)       Name and address of the landfill or combustor that is receiving the solvent-contaminated wipes.

 

As noted during the inspections on February 5, 2024 and April 30, 2024, Respondents did not have documentation of the name and address of the landfill that was receiving its solvent contaminated wipes.

 

9.         Findings of Fact Paragraphs #7b-7o and #7q-7s have been addressed either by documentation submittal and/or by the Site ceasing operations and closing.

 

10.       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, Respondents 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  Respondents shall comply with the statutes and rules listed in the findings of fact above.

 

3.         Within five (5) days of the Effective Date, Respondents shall comply with 329 IAC

            3.1-1-10. Specifically, Respondent shall submit an updated electronic notification noting STORAGE ACTIVITIES [box 10.A.3] and FACILITY CLOSURE [box 15] in the       myRCRAid module of RCRAInfo. Instructions can be found here:           https://www.in.gov/idem/waste/waste-industries/waste-transportation/how-to-obtain-a-          new-rcra-id-number/. Stipulated penalties as stated in Order paragraph 9 will begin on the         6th day from the Effective Date and will continue until the documentation is submitted             as required by this paragraph.

 

4.         Within thirty (30) days of the Effective Date, Respondents shall comply with 40 CFR       262.11(a). Specifically, Respondent shall complete and submit documentation of the hazardous waste determinations made on the containers noted in the April 30, 2024   inspection report [VFC# 83636681] and, if applicable, hazardous waste determination for     other remaining containers located at the Site. Stipulated penalties as stated in Order            paragraph 9 will begin on the 31st day from the Effective Date and will continue until the       documentation is submitted as required by this paragraph.

 

5.         Within thirty (30) days of the Effective Date, Respondents shall comply with 40 CFR             2621.4(b)(18)(v)(A). Specifically, Respondent shall submit documentation of the landfill or combustor which received the solvent contaminated wipes. Stipulated penalties as             stated in Order paragraph 9 will begin on the 31st day from the Effective Date and will       continue until the documentation is submitted as required by this paragraph.

 

6.         Field verification by IDEM is required prior to this Agreed Order being closed.

 

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

 

Linda McClure, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

8.                  Pursuant to IC 13-30-4-1, Respondents are assessed and agree to pay a civil penalty of Twenty-Nine Thousand Two Hundred Dollars ($29,200) for which Respondents are jointly and severally liable. 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.

 

9.                  In the event the terms and conditions of the following paragraphs are violated, Complainant may assess, and Respondent shall pay a stipulated penalty in the following amount:

 

Paragraph

Stipulated Penalty

Order paragraph # 3

$300 per week

Order paragraph # 4

$300 per week

Order paragraph # 5

$300 per week

 

10.              Stipulated penalties shall be due and payable no later than the thirtieth day after Respondents receives written notice that Complainant has determined a stipulated penalty is due; at which time, a separate invoice will be issued. Complainant may notify Respondents at any time that a stipulated penalty is due. Failure to notify Respondents 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 Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondents 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. Respondents are jointly and severally liable for all stipulated penalty assessments.

 

11.              In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondents 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 8, above.

 

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

 

13.              This Agreed Order shall, jointly and severally, apply to and be binding upon Respondents and all successors and assigns. Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

 

14.              No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondents’ status or responsibilities under this Agreed Order.

 

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

 

16.              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.

 

17.              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 Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents of the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

 

18.              Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents may incur as a result of Respondents’ efforts to comply with this Agreed Order.

 

19.              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.

 

20.              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 Respondents may incur as a result of such communications with the U.S. EPA or any other agency or entity.

 

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

 

REMAINDER OF PAGE LEFT INTENTIONALLY BLANK

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

 

 

By:

 

 

By:

 

 

Jennifer Reno, Chief

Printed:

 

 

Land Enforcement Section

Title:

 

 

Compliance Branch

 

 

 

Office of Land Quality

 

 

Date:

 

10/31/2024

 

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 12/9/2024

 

 

 

 

 

 

 

 

Brian Wolff

 

 

Assistant Commissioner

 

 

Office of Land Quality