STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

) CAUSE NO. 99-W-E-2450

vs. ) (B-2376 & SW 388)

)

RAYBESTOS PRODUCTS COMPANY )

)

Respondent. )

AGREED ORDER

The Complainant and the Respondent pursuant to IC 13-30-3-6 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 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.

 

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. The Respondent is the Raybestos Products Company (hereinafter referred to as "Respondent"), located at 1204 Darlington Avenue, Crawfordsville, Montgomery County, Indiana ("the Site").

3. IDEM has jurisdiction over the parties and subject matter of this action.
  1. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on November 9, 1998 via Fed Ex Priority Mail, Telefax, and Certified Mail to:

    2. Mr. Timothy P. Dibble, CHMM C.T. Corporation Systems

    Raybestos Products Company 1 North Capitol Avenue

    1204 Darlington Avenue Indianapolis, Indiana 46204

    Crawfordsville, Indiana 47933

  2. The Respondent received the Notice of Violation on November 10, 1998.

6. Based on investigations by designated representatives of the Indiana Department of

Environmental Management (IDEM), the Respondent violated the following environmental rules:

    1. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into the waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

B. Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places,including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices or other discharges that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, odor or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, and which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance, be unsightly, or impair the designated uses.

C. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any waters of the state, or to cause, permit, or suffer to be thrown, run, drain, allowed to seep, or otherwise disposed into any waters any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters, according to any rule of the board under sections 1 and 3 of this chapter.

    1. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state contain the spill, if possible, to prevent additional spilled material from entering the waters of the state; undertake or cause others to undertake activities needed to accomplish a spill response; and as soon as possible but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response.
    2. Pursuant to IC 13-20-15-6, a person may not dispose of solid or liquid waste resulting from the use in the person’s business of:

      3. 1. PCB; or

      2. an item, a product, or a material containing or that has contained PCB; except in conformity with rules adopted by the board.

    3. Pursuant to IC 13-30-2-1, a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

7. a. On September 30, 1998, representatives from IDEM observed a blue-gray water with a foul smelling odor being discharged from a culvert (culvert #3) on the southwest side of the Site. On October 2, 1998, samples were taken from the aforementioned culvert by IDEM inspectors. An analysis of the sampled discharge showed 0.650 parts per billion (ppb) of Polychlorinated Biphenyls (PCBs) Aroclor-1248. An analysis of a duplicate sample showed 0.680 ppb PCBs. Both of these analyses demonstrate a violation of 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), IC 13-18-4-5, IC 13-30-2-1, and IC 13-20-15-6.
    1. On October 20, 1998, a sample was obtained from one of the culverts (culvert #3) on the southwest side of the Site. An analysis of this sample showed 2.7 ppb of PCBs Aroclor 1248. An analysis of a duplicate sample showed 6.7 ppb of PCBs Aroclor 1248. Both of these analyses demonstrate a violation of 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), IC 13-18-4-5, IC 13-30-2-1, and IC 13-20-15-6.
    2. These violations continued as evidenced by sampling occurring on the following dates:

      3. 1. On November 4, 1998, samples were taken from each of the three culverts on the southwest side of the Site, in addition to other samples. An analysis of the sample from culvert #1 showed 0.54 ppb of total PCBs. An analysis of the sample from culvert #3 showed 6.68 ppb of total PCBs (the analysis of the duplicate of this sample showed 4.88 ppb of total PCBs). These analyses demonstrate a violation of 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), IC 13-18-4-5, IC 13-30-2-1, and IC 13-20-15-6.

      2. On May 21, 1999, samples were taken from each of the three culverts on the southwest side of the Site and from each of the three culverts on the northwest side of the Site, in addition to other samples. An analysis of the sample from culvert #3 showed 15 ppb of PCBs Aroclor 1248. An analysis of a duplicate sample showed 7.5 ppb of PCBs Aroclor 1248. An analysis of a sample from the northernmost culvert on the northwest side of the Site showed 10 ppb of PCBs Aroclor 1248. All of these analyses demonstrate a violation of 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), IC 13-18-4-5, IC 13-30-2-1, and IC 13-20-15-6.

      3. On August 5, 1999, samples were taken from each of the three culverts on the southwest side of the Site, in addition to other samples. An analysis of the sample from culvert #1 showed 0.70 ppb of total PCBs. An analysis of the sample from culvert #3 showed 1.39 ppb of total PCBs (the analysis of the duplicate of this sample showed 0.64 ppb of total PCBs). All of these analyses demonstrate a violation of 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), IC 13-18-4-5, IC 13-30-2-1, and IC 13-20-15-6.

    3. IDEM has no record of the Site making a timely spill report of any of the contaminated discharges noted above. The Respondent’s failure to report the above noted reportable spills is in violation of 327 IAC 2-6.1-7.

8. On October 25, 1999 IDEM sent a letter to USEPA Region 5 referring Resource Conservation and Recovery Act violations against Respondent which would support an appropriate order of corrective action for the remediation of on site contamination.

9. On December 15, 1999, IDEM issued to the Respondent a Notice and Order of the Commissioner of the Department of Environmental Management ("Commissioner’s Order").

10. On December 30, 1999, the Respondent filed a Petition for Review of the Commissioner’s Order with the Office of Environmental Adjudication.

11. Since December 30, 1999, the parties have been involved in the discovery process. Negotiations have been ongoing in this matter. The parties have reached a settlement agreement.

12. On May 15, 2001 USEPA Region 5 issued to Respondent a Pre-filing Notice and Opportunity to Confer letter advising Respondent that a civil action alleging environmental rule violations at its Crawfordsville, Indiana facility is contemplated.

13. On January 31, 2002, the Respondent submitted the quality assurance package covering the stormwater sampling events at Raybestos Products Company during the year 2001. The quality assurance package documents indicate that the samples were received at the laboratory at a higher temperature than recommended (4° C ± 2). Although PCBs are not highly volatile, the sample results could be determined as estimated values. Except for the sample taken from "Stormwater Site #4" on January 30, 2001, where the concentration for PCB Aroclor 1248 was 0.12 ug/L and the Detection Limit was 0.10 ug/L, the sample taken from "18" Fallout" taken on August 17, 2001, where the concentration for PCB Aroclor 1248 was 0.41 ug/L and the Detection Limit was 0.30 ug/L, and the sample taken from "36" Fallout" on August 17, 2001, where the concentration form PCB Aroclor 1248 was 0.31 ug/L and the Detection Limit was 0.30 ug/L, all the other sample results indicated an estimate of the concentration in samples of less than the Detection Limit. The quality assurance package documents indicate that samples taken by IDEM during 2000 all indicated concentrations of PCBs of less that the Level of Detection in the stormwater runoff from Raybestos Products Company.

14. On November 29, 2001 IDEM issued a NPDES Storm Water Permit No. IN 0061018 to Respondent for its Crawfordsville, Indiana facility.

15. In recognition of the settlement reached, Respondent 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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. The Respondent shall comply with 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), 327 IAC 2-6.1-7, IC 13-20-15-6, IC 13-30-2-1, and IC 13-18-4-5.

3. This Agreed Order is not and shall not be interpreted to be a Permit, or a modification of an existing Permit, nor shall it in any way relieve Respondent of its obligation to comply with the requirements of its applicable permits or with any other applicable federal or state law or regulation. Nor will this Agreed Order operate to limit the rights exercised by USEPA with respect to any activities at Respondent’s facility

4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Mark W. Stanifer, Chief

Water Enforcement Section

Office of Enforcement

Indiana Department of Environmental Management

P.O. Box 6015

Indianapolis, Indiana 46206-6015

5. Respondent is assessed a civil penalty of Two Hundred Twenty-five Thousand Dollars ($225,000). The penalty for the violations of IC 13-20-15-6 is Twenty-five Thousand dollars ($25,000). The penalty for the violations of 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), IC 13-30-2-1 and IC 13-18-4-5 is Two Hundred Thousand Dollars ($200,000). This penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.

6. Pursuant to IC 13-25-6-3, Respondent shall reimburse complainant for the cost incurred by IDEM for the sampling events referenced in the Commissioner’s Order, which is the subject of this action. IDEM has determined this amount to be Thirty-three Thousand Ninety-nine Dollars and Ninety-one Cents ($33,099.91). This dollar amount is strictly for the purposes of cost recovery, and is separate and distinct from any penalty, which may also be assessed in this case. Payment shall be made to the Hazardous Substances Response Trust Fund within thirty (30) days of the Effective Date of this Agreed Order, and sent to:

Cashier, IDEM

100 N. Senate Avenue

P.O. Box 7050

Indianapolis, Indiana 46207-7050

7. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

Cashier, IDEM

100 N. Senate Avenue

P.O. Box 7060

Indianapolis, Indiana 46207-7060

8. In the event that the civil penalty required by paragraph 5 is not paid within thirty (30) days of the Effective Date of this Agreed Order Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

9. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

10. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, its permits, or state law.

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 the Agreed Order did not contain the invalid terms.

12. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall by contract require that all contractors, firms, and other persons acting for it comply with the terms of this Agreed Order.

13. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

 

TECHNICAL RECOMMENDATION: RESPONDENT

Department of Environmental Management

By: _________________________ By: ________________________

Mark Stanifer, Section Chief John J. Easton, President

Water Section Raybestos Products Co., Inc.

Office of Enforcement

Date: _______________

 

 

By: _________________________

Paul Higginbotham, Chief

Solid Waste – UST Section

Office of Enforcement

Date: _______________

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

By: _________________________ By: ________________________

Jay Rodia

Office of Legal Counsel

Department of Environmental Management

Date: _______________ Date: _______________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________________ DAY OF ____________________, 2002.

 

 

FOR THE COMMISSIONER:

 

__Signed 6/3/02_____

Felicia A. Robinson

Deputy Commissioner for Legal Affairs