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STATE OF
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BEFORE THE
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COUNTY OF
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COMMISSIONER
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Complainant, |
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v. |
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Case No. 2025-30630-H |
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custom superior paint incorporated, |
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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 Custom Superior Paint
Incorporated (“Respondent”), which owns/operates the facility with United
States Environmental Protection Agency (“EPA”) ID No. INR000157941, located at 1700
West Lusher Avenue, in Elkhart, Elkhart 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”) on April 16, 2025, via certified mail to:
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Oscar
Orta, President |
Duran
Tax Services Inc. |
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Custom
Superior Paint Incorporated |
Registered
Agent |
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1700
West Lusher Avenue |
1818
Miami Street |
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Elkhart,
Indiana 46517 |
South
Bend, Indiana 46613 |
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Gladys
Figueroa, President |
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Custom
Superior Paint Incorporated |
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1301
Harrison Street |
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Elkhart,
Indiana 46516 |
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5.
Respondent notified EPA of Very Small Quantity Generator activities on June
19, 2025
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 on
October 8, 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,
Respondent did not make a hazardous waste determination on four (4) wastestreams, which were solid
waste, generated at the Site. Specifically, ignitable paint and solvents; still
bottoms; paint filters; and old paint.
On December 18, 2024, Respondent
submitted the required waste determination documentation.
b. 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.
Pursuant
to 40 CFR 262.13, a generator must determine its generator category. A
generator's category is based on the amount of hazardous waste generated each
month and may change from month to month.
As noted during the inspection,
Respondent failed to notify the Commissioner of hazardous waste generator
activities.
On December 3, 2024, Respondent
submitted a Handler ID Form notifying the Commissioner of small quantity
generator activities.
c. Pursuant
to 40 CFR 262.15(a)(4), a satellite accumulation container holding hazardous
waste must be closed at all times during accumulation,
except when adding, removing or consolidating waste.
As noted during the inspection,
Respondent accumulated hazardous waste in a satellite accumulation container
that was not closed.
d. 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.”
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 satellite accumulation
containers with the words “Hazardous Waste.”
e. Pursuant
to 40 CFR 262.16(b)(2)(iii)(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 inspection,
Respondent did not store six (6) containers of hazardous waste closed.
f. Pursuant
to 40 CFR 262.16(b)(2)(iv), at least weekly, the small quantity generator must
inspect central accumulation areas. The small 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 the central accumulation
area.
g. Pursuant
to 40 CFR 262.16(b)(6)(i)(A), a small quantity
generator may accumulate hazardous waste on-site for 180 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 failed to mark hazardous waste containers with the words
"Hazardous Waste."
h. Pursuant to 40 CFR
262.16(b)(6)(i)(B), a small quantity generator may
accumulate hazardous waste on-site for 180 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 failed to
clearly mark hazardous waste containers with an indication of the contents.
i. Pursuant
to 40 CFR 262.16(b)(6)(i)(C), a small quantity
generator may accumulate hazardous waste on-site for 180 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 failed to
clearly mark hazardous waste containers with accumulation start dates.
j. Pursuant
to 40 CFR 262.16(b)(8)(vi), the small quantity generator must attempt to make arrangements with the local police department, fire
department, other emergency response teams, emergency response contractors,
equipment suppliers and local hospitals, taking into account
the types and quantities of hazardous wastes handled
at the facility. Arrangements may be made with the Local Emergency Planning
Committee, if it is determined to be the appropriate organization with which to
make arrangements.
As noted during the inspection,
Respondent did not attempt to make these arrangements.
k. Pursuant
to 40 CFR 262.16(b)(9)(ii), the small quantity generator must post the
following information next to the telephone: (1) the name and phone number of
the emergency coordinator; (2) location of fire extinguishers and spill control
material and, if present, fire alarm; (3) the telephone number of the fire
department, unless the facility has a direct alarm.
As noted during the inspection, Respondent failed to post the required information next to
the telephone.
l. Pursuant
to 40 CFR 262.16(b)(9)(iii), the small quantity generator must ensure that all
employees are thoroughly familiar with proper waste handling and emergency
procedures, relevant to their responsibilities during normal facility
operations and emergencies.
As
noted during the inspection, Respondent failed to ensure employees were thoroughly
familiar with proper waste handling and emergency procedures, relevant to their
responsibilities during normal facility operations and emergencies
m. Pursuant
to 40 CFR 261.4(a)(26)(i), solvent-contaminated wipes that are sent for cleaning
and reuse are not solid wastes from the point of generation, provided that (i) The solvent-contaminated wipes, when accumulated, stored,
and transported, are contained in non-leaking, closed containers that are
labeled “Excluded Solvent-Contaminated Wipes.” The containers must be able to
contain free liquids, should free liquids occur. During accumulation, a
container is considered closed when there is complete contact between the
fitted lid and the rim, except when it is necessary to add or remove
solvent-contaminated wipes. When the container is full, or when the
solvent-contaminated wipes are no longer being accumulated, or when the
container is being transported, the container must be sealed with all lids
properly and securely affixed to the container and all openings tightly bound
or closed sufficiently to prevent leaks and emissions.
As
noted during the inspection, Respondent failed to have the spent solvent
contaminated wipes accumulated and stored in a non-leaking, closed container
and failed to store the cardboard box closed. At the time of the inspection,
solvent spent wipes were stored in an open cardboard box.
On
or before June 11, 2025, Respondent implemented a new process in which solvent
is no longer used to remove silicone caulk from RVs, thereby eliminating spent
solvent contaminated wipes as a wastestream.
n. Pursuant
to 40 CFR 261.4(a)(26)(i), solvent-contaminated wipes
that are sent for cleaning and reuse are not solid wastes from the point of
generation, provided that (i) The
solvent-contaminated wipes, when accumulated, stored, and transported, are
contained in non-leaking, closed containers that are labeled “Excluded
Solvent-Contaminated Wipes.” The containers must be able to contain free
liquids, should free liquids occur. During accumulation, a container is
considered closed when there is complete contact between the fitted lid and the
rim, except when it is necessary to add or remove solvent-contaminated wipes.
When the container is full, or when the solvent-contaminated wipes are no
longer being accumulated, or when the container is being transported, the
container must be sealed with all lids properly and securely affixed to the
container and all openings tightly bound or closed sufficiently to prevent
leaks and emissions.
Pursuant to 329
IAC 3.1-6-2(13), at 40 CFR 261.4(a)(26)(i) *
and 40 CFR 261.4(b)(18)(i) *, delete the
phrase "Excluded Solvent-Contaminated Wipes" and substitute the phrase "'Excluded Solvent-Contaminated Wipes' or other
words indicating the contents of the container."
As
noted during the inspection, Respondent failed to label the accumulation and
storage container as required.
On
or before June 11, 2025, Respondent implemented a new process in which solvent
is no longer used to remove silicone caulk from RVs, thereby eliminating spent
solvent contaminated wipes as a wastestream.
o. Pursuant
to 40 CFR 261.4(a)26(v)(A),(B), and (C), generators must maintain at their site
the following documentation:(A) Name and address of the laundry or dry cleaner
that is receiving the solvent-contaminated wipes;(B) Documentation that the
180-day accumulation time limit in 40 CFR 261.4(a)(26)(ii) is being met;(C)
Description of the process the generator is using to ensure the
solvent-contaminated wipes contain no free liquids at the point of being
laundered or dry cleaned on-site or at the point of being transported off-site
for laundering or dry cleaning.
As
noted during the inspection, Respondent failed to maintain the required records
for solvent contaminated wipes.
On
or before June 11, 2025, Respondent implemented a new process in which solvent
is no longer used to remove silicone caulk from RVs, thereby eliminating spent
solvent contaminated wipes as a wastestream.
p. Pursuant
to 40 CFR 262.10(a)(3), a generator shall not transport, offer its hazardous
waste for transport, or otherwise cause its hazardous waste to be sent to a
facility that is not a designated facility, as defined in § 260.10 of this
chapter, or not otherwise authorized to receive the generator's hazardous
waste.
As
noted during the inspection, Respondent offered for transportation still
bottoms, a hazardous waste, to a non-hazardous waste transporter and disposed
of the still bottoms, a hazardous waste, at a non-permitted facility.
q. Pursuant
to 40 CFR 262.20, a generator who transports, or
offers for transportation, hazardous waste for offsite treatment, storage, or
disposal, must prepare a manifest. A generator must designate on the manifest
one facility which is permitted to handle the waste described on the manifest.
A generator may designate an alternate facility to handle his waste in the event that an emergency prevents delivery of the
waste to the primary designated facility.
Pursuant to IC 13-30-2-1(12), a person
may not do any of the following: (12) Cause or allow the transportation of a hazardous waste without a manifest if a manifest is
required by law.
Pursuant to 329 IAC 3.1-1-13, the
commissioner shall require the use of identification numbers issued by the
United States. Environmental Protection Agency (U.S. EPA).
As noted during the inspection,
Respondent offered hazardous waste for transportation for offsite treatment,
storage, or disposal without preparing a manifest.
r. Pursuant
to 40 CFR 262.16(b)(7), a small quantity generator
must comply with all the applicable requirements under 40 CFR part 268.
As noted during the inspection,
Respondent failed to comply with all the applicable requirements under 40 CFR
part 268.
8.
Orders
of the Commissioner are subject to administrative review by the Office of Administrative
Law Proceedings under IC 4-21.5; however, in recognition of the settlement
reached, Respondent acknowledge 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.
Immediately upon the Effective Date, Respondent
shall comply with 40 CFR 262.15(a)(4) and 40 CFR 262.16(b)(2)(iii)(A),
Specifically, Respondent shall ensure containers are stored closed, except when
adding, removing or consolidating waste.
4. Immediately upon the Effective Date,
Respondent shall comply with 40 CFR 262.15(a)(5)(i),
40 CFR 262.16(b)(6)(i)(A), 40 CFR 262.16(b)(6)(i)(B), and 40 CFR 262.16(b)(6)(i)(C).
Specifically, Respondent shall ensure containers are
labelled/marked appropriately.
5. Respondent shall comply with 40 CFR
262.16(b)(2)(iv), when upon or on discovery of a change in generator status to
a small quantity generator or a large quantity generator, Respondent shall
ensure compliance with 40 CFR 262, to include conducting weekly inspections of
the central accumulation area(s).
6. Within five (5) days of the Effective
Date, Respondent shall notify the facility that received the still bottom waste
for disposal that they have received a hazardous waste. This notification
should include the approximate dates of disposal and
the approximate amount sent for disposal. Documentation of sent notification
shall be submitted to IDEM.
7. Respondent shall comply with 40 CFR
262.16(b)(8)(vi), when upon or on discovery of a change in generator status to
a small quantity generator or a large quantity generator, Respondent shall
ensure compliance with 40 CFR 262, to include making
arrangements with local authorities.
8. Respondent
shall comply with 40 CFR 262.16(b)(9)(ii), when upon or on discovery of a
change in generator status to a small quantity generator or a large quantity
generator, Respondent shall post the required emergency information next to
the telephone. Respondent shall submit photographic documentation of the
posting.
9. Respondent shall comply with 40 CFR
262.16(b)(9)(iii), when upon or on discovery of a change in generator status to
a small quantity generator or a large quantity generator, Respondent shall
ensure employees are thoroughly familiar with proper waste handling and
emergency procedures, relevant to their responsibilities during normal facility
operations and emergencies. Documentation of completed training, including
syllabus, shall be submitted.
10. Immediately upon the Effective Date,
Respondent shall comply with 40 CFR 262.10(a)(3). Specifically, Respondent
shall ensure all hazardous waste is transported by a hazardous waste
transporter to a designated facility authorized to receive the generator's
hazardous waste.
11. Respondent shall comply with 40 CFR
262.20, IC 13-30-2-1(12), and 329 IAC 3.1-1-13, when upon or on discovery of a
change in generator status to a small quantity generator or a large quantity
generator, Respondent shall ensure hazardous waste is shipped on a hazardous
waste manifest.
12. Respondent shall comply with 40 CFR
262.16(b)(7), when upon or on discovery of a change in generator status to a
small quantity generator or a large quantity generator, Respondent shall
determine if a hazardous waste must be treated before it can be land disposed.
This is done by determining if the hazardous waste meets the treatment
standards in § 268.40, 268.45, or § 268.49.
13. All submittals required by this Agreed
Order, unless IDEM notifies the Respondent
otherwise in writing, shall be sent to:
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Linda
McClure, Enforcement Case Manager |
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Office of
Land Quality |
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Indiana
Department of Environmental Management |
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100 North
Senate Avenue |
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Indianapolis, IN 46204-2251 |
14.
Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Nineteen Thousand Two Hundred
Dollars ($19,200). Said penalty amount shall be due and payable in twelve (12)
monthly installments of One Thousand Six Hundred Dollars ($1,600). Respondent
shall pay the first installment by the due date printed on the Invoice, as
attached. Respondent shall pay by the due date printed
on subsequent invoices in accordance with the agreed upon
payment plan.
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:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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P.O.
Box 3295 |
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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.
15.
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:
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Paragraph |
Stipulated Penalty |
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Order
paragraph #6 |
$200
per week |
Stipulated
penalties shall begin to be assessed on the date after the Effective Date and
shall continue until the documentation is submitted as required by the
associated paragraph.
16.
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; at which time, a separate invoice will be issued.
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.
17.
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 14,
above.
18.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
19.
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.
20.
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.
21.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
22.
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.
23.
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.
24.
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.
25.
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.
26.
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.
27.
This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.
REMAINDER
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TECHNICAL
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Jennifer
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APPROVED
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MANAGEMENT
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For
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Signed
7/21/2025 |
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Brian
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