STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. )CAUSE NO. 1999-8305-H or H-13653
)CAUSE NO. 1999-5033-S or SW-393
GUARDIAN INDUSTRIES CORPORATION )
)
Respondent. )
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of
the Indiana Department of Environmental Management, a department of the State
of Indiana created by IC 13-13-1-1.
2. Respondent is Guardian Industries Corporation (hereinafter referred to as
"Respondent"), who owns a company doing business at 1900 South Center Street,
Auburn, Dekalb County, Indiana.
3. The Indiana Department of Environmental Management ("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 via Certified Mail
to:
Guardian Industries Corporation Central Indiana Paralegal Services, Inc.
William Davison, President Registered Agent
2300 Harmon Road 55 Monument Circle
Auburn Hills, Michigan 48326-1714 Indianapolis, Indiana 46204
5. Respondent manufactures tempered and laminated glass. Hazardous waste and
special waste is generated from the urethane coating, PVC encapsulation, and silk
screening processes. Pursuant to 40 CFR 261.6 and 40 CFR 266.70,
Respondent's silver paint waste which is sent for reclamation is exempt from 40
CFR 262 Subpart C and the requirements described in paragraph two (2) of the
Order section of this Agreed Order which are based on those Subpart C
requirements. Respondent notified as a large quantity generator on January 23,
1985, and operates with the U.S. EPA identification number IND 980998645.
IDEM issued to the Respondent Special Waste Certification No. 50827 for silica
sludge on September 28, 1995. Special Waste Certification No. 50827 is effective
for exactly five (5) years from September 28, 1995.
6. Respondent was inspected on November 30, 1998, by Ms. Mary Shelton, Ms.
Kimberly Whittington, and Mr. Andrew Tirmenstein of the Office of Solid and
Hazardous Waste Management (hereinafter referred to as "OSHWM"). Based on
this investigation, IDEM contends that the following violations were in existence
or observed at the time of inspection.
B. Cause No. H-13653
a. Pursuant to 40 CFR 262.11 and 40 CFR 268.7(a), a person who generates
a solid waste must determine if that waste is hazardous. Based on
information gathered by IDEM, Respondent did not conduct a hazardous
waste determination on liquid silver paint waste mixed with trash in one
(1) 55-gallon container inside the silver paint room. Also, Respondent did
not make a proper hazardous waste determination on the following waste
streams:
1) Frit debris (D007/008/011) mixed with trash in one (1) 55-
gallon container inside the black frit room; and
2) Silver paint contaminated rags (D007/008/011) mixed with
trash in two (2) 55-gallon containers inside the silver paint
room.
Agreed Order H-13653 and SW-393
Guardian Industries
Page #3
On January 9, 1999, Respondent notified IDEM that a hazardous waste
determination was conducted on the liquid paint waste and was found to
be characteristic for silver (D011).
b. Pursuant to 40 CFR 262.34(a)(2) and (3), generators may accumulate
hazardous waste on-site for 90 days or less without a permit, provided that,
but not limited to, the date when the accumulation begins is clearly
marked and visible for inspection on each container and containers are
marked with the words "Hazardous Waste." Based on information
gathered by IDEM, Respondent did not mark one (1) 55-gallon container
of frit debris with the start of accumulation date. This container was
located in the less than ninety (90) day accumulation area outside on the
south side of the facility. Respondent did not mark two (2) 55-gallon
containers of frit debris mixed with trash with the start of accumulation
date and the words "Hazardous Waste." These containers were located in
the silver paint room.
c. Pursuant to 40 CFR 262.34(c)(1)(ii), generators must mark satellite
accumulation containers with the words "Hazardous Waste" or other
words that identify the contents of the containers. Based on the
information gathered by IDEM, Respondent did not label the following
containers with the words "Hazardous Waste" or other words that identify
the contents of the containers:
1) One (1) 55-gallon container of paint chips and silver paint
contaminated rags in the satellite accumulation area in between the
black frit and silver paint rooms (at the cleaning station); and
2) One (1) 55-gallon container of frit debris mixed with trash in the
satellite accumulation area located in the black frit room.
d. Pursuant to 40 CFR 262.34(c)(1), a generator may accumulate as much as
55 gallons of hazardous waste in containers at or near any point of
generation where wastes initially accumulate, which is under the control of
the operator of the process generating the waste. Based on information
gathered by IDEM, the 55-gallon container of frit debris in the satellite
accumulation area outside the silver paint room was not visible to the
silver paint room operator, and therefore was not under his control.
e. Pursuant to 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a),
containers holding hazardous waste must always be stored closed, except
when it is necessary to add or remove waste. Based on information
gathered by IDEM, the following containers were not stored closed:
1) Two (2) 55-gallon containers of frit debris mixed with trash in the
less than ninety (90) day accumulation area inside the silver paint
room;
2) One (1) 55-gallon drum of paint chips and silver paint
contaminated rags in the satellite accumulation area in between the
black frit and silver paint rooms (at the cleaning station); and
3) One (1) 55-gallon drum of frit debris mixed with trash in the
satellite accumulation area inside the black frit room.
f. Pursuant to 40 CFR 262.34(c)(2), generators who accumulate in excess of
55 gallons of hazardous waste in a satellite accumulation area must
properly label that excess hazardous waste with the accumulation start date
and must move that excess hazardous waste to a less than ninety (90) day
accumulation area within 3 days. Based on information gathered by
IDEM, Respondent accumulated more than 55 gallons of frit debris in the
satellite accumulation area behind the black frit room without an
accumulation start date and stored in excess of 3 days.
g. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, owners
and operators of hazardous waste facilities must inspect container storage
areas for leaks and deterioration at least once a week. Based on
information gathered by IDEM, Respondent did not conduct the required
weekly inspections of the less than ninety (90) day accumulation area
inside the silver paint room.
C. Cause No. SW-393
. h. Pursuant to IC 13-30-2-1(4) and (5), no person shall deposit any
contaminates upon the land in a place and manner that creates or would
create a pollution hazard that violates or would violate a rule adopted by
one (1) of the boards, or deposit or cause or allow the deposit of any
contaminants or solid waste upon the land, except through the use of
landfills, incineration, composting, garbage grinding, or another method
acceptable to the solid waste management board. Based on the
information gathered by IDEM, Respondent allowed the silica sludge roll-
off storage container to leak silica sludge. Silica sludge has spilled onto
the cement pad and surrounding soil.
Agreed Order H-13653 and SW-393
Guardian Industries
Page #5
i. Pursuant to 329 IAC 10-8.1 and Special Waste Certification No. 50827,
silica sludge must be void of free liquids prior to disposal. Based on
information gathered by IDEM, on October 28, 1998, Respondent
attempted to dispose of a load of silica sludge that contained free liquids at
Ransbottom Landfill. Furthermore, Respondent did not provide a passing
paint filter test for this load of silica sludge to Ransbottom Landfill.
j. Pursuant to 40 CFR 262.11 and 40 CFR 268.7(a), a person who generates
a solid waste must determine if that waste is hazardous. Based on
information gathered by IDEM, Respondent did not make a proper
hazardous waste determination on its silica sludge because a waste
determination was not conducted on each individual silica sludge waste
stream (privacy glass shavings, tinted glass shavings, and coated glass
shavings).
7. In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
b. Ensure that all hazardous waste containers in satellite accumulation areas
are marked with the words "Hazardous Waste" or other words identifying
the contents of the containers.
c. Ensure that all containers of hazardous waste containers are stored closed,
except when it is necessary to add or remove waste.
d. Ensure no more than 55-gallons of hazardous waste is stored in satellite
accumulation areas.
e. Conduct weekly inspections of hazardous waste containers in less than
ninety (90) day accumulation areas.
f. Ensure roll-off containers used to store silica sludge are managed in a
manner that prevents rain water mixing with silica sludge.
g. Ensure all silica sludge loads are void of free liquids when disposed.
3. Within thirty (30) days of the effective date of this Agreed Order, Respondent
shall remove all silica sludge contamination from the cement pad and the
surrounding soil. Soil shall be excavated to six (6) inches below visible signs of
contamination.
4. Within sixty (60) days of the effective date of this Agreed Order, Respondent shall
dispose of all contaminated soil at a landfill permitted to accept special waste.
Respondent shall submit documentation of compliance to IDEM.
5. Within one hundred eighty (180) days of the effective date of this Agreed Order,
Respondent shall:
a. Conduct hazardous waste determinations on each individual glass shaving
waste stream (privacy glass, tinted glass, and coated glass shavings).
Based on the results of the hazardous waste determinations, Respondent
shall dispose of these waste streams as either special waste or hazardous
waste.
b. Submit to IDEM for review, a Best Management Practices (BMP) plan
describing current operating procedures at the facility for the proper
management of all hazardous and special waste streams. Respondent shall
also ensure that all personnel are properly trained in the management of
hazardous and special waste streams at the facility.
6. All submissions required by this Agreed Order, unless notified otherwise in
writing, shall be sent to:
Jennifer Reno
Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
Agreed Order H-13653 and SW-393
Guardian Industries
Page #7
7. All submissions required by this Agreed Order shall contain the following
certification:
"I certify under penalty of law that this document and all attachments were
prepared under my direction or supervision in accordance with a system designed
to assure that qualified personnel properly gather and evaluate the information
submitted. Based on my inquiry of the person ore persons who mange the system,
or those persons directly responsible for gathering the information, the
information submitted is, to be the best of my knowledge and belief, true,
accurate, and complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and imprisonment
for knowing violations."
8. Respondent is assessed a civil penalty of Twenty-Five Thousand Two Hundred
Dollars ($25,200). Said penalty amount shall be due and payable to the
Environmental Management Special Fund within thirty (30) days of the effective
date of this Agreed Order.
9. In the event the following terms and conditions are violated, the Complainant may
assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
Order Condition #3, 4, and 5a $1,000 per day
10. Stipulated penalties shall be due and payable within thirty (30) days after
Respondent receives written notice that the Complainant has determined a
stipulated penalty is due. Assessment and payment of stipulated penalties shall
not preclude the Complainant from seeking any additional relief against the
Respondent for violation of the Agreed Order. In lieu of assessment of any of the
stipulated penalty given above, the Complainant may seek any other remedies or
sanctions available by virtue of Respondent's violation of this Agreed Order, or
Indiana Law, including but limited to civil penalties pursuant to IC 13-30-4.
11. "Force Majeure," for purposes of this Agreed Order, is defined as any event
arising from causes beyond the control of the Respondent that delays or prevents
the performance of any obligation under this Agreed Order despite Respondent's
best efforts to fulfill the obligation. The requirement that the Respondent exercise
"best efforts to fulfill the obligation" includes using best efforts to anticipate any
potential force majeure event and best efforts to address the effects of any
potential force majeure event (1) as it is occurring and (2) following the potential
force majeure event, such that the delay is minimized to the greatest extent
possible. "Force Majeure" does not include financial inability to complete the
work required by this Agreed Order or increases in costs to perform the work.
The Respondent shall notify IDEM by calling within five (5) calendar days and by
writing no later than ten (10) calendar days after any event which the Respondent
contends is a force majeure. Such notification shall describe the anticipated
length of the delay, the cause or causes of the delay, the measures taken or to be
taken by the Respondent to minimize the delay, and the timetable by which these
measures will be implemented. The Respondent shall include with any any notice
all available documentation supporting their claim that the delay was attributable
to a force majeure. Failure to comply with the above requirements shall preclude
Respondent from asserting any claim of force majeure for that event. The
Respondent shall have the burden of demonstrating that the event is a force
majeure. The decision of whether an event is a force majeure shall be made by
IDEM. Said decision shall be promptly communicated to the Respondent.
If a delay is attributable to a force majeure, IDEM shall extend, in writing, the
time period for performance under this Agreed Order, by the amount of time that
is attributable to the event constituting the force majeure.
12. 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, IN 46207-7060
13. In the event the the civil penalty required by paragraph 8 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.
14. This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. The
Respondent's 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.
15. In the event that any terms of the 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.
Agreed Order H-13653 and SW-393
Guardian Industries
Page #9
16. 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 ensure that all contractors, firms and other persons performing
work under this Agreed Order comply with the terms of this Agreed Order.
17. This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause
letter to Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: _________________________ By: _________________________
Nancy L. Johnston, Chief
Hazardous Waste Section Printed: ______________________
Office of Enforcement
Title: ________________________
Date: ________________________ Date: ________________________
By: _________________________
Paul Higginbotham, Chief
Solid Waste Section
Office of Enforcement
Date: _______________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Office of Legal Counsel
Department of Environmental Management
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS _____ DAY OF ____________________, 2000.
For the Commissioner:
__Signed 2/8/00____
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement
Converted by Andrew Scriven