STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS:
COUNTY OF MARION ) OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) Cause No. H-13769
v. )
)
DELPHI DELCO ELECTRONICS SYSTEMS )
)
)
Respondent. )
)
The Complainant and the 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 IC 13-30-3-3(c), entry into this agreement does not
constitute an admission of any violation contained herein.
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 Delphi Delco Electronics Systems (hereinafter referred to as
"Respondent"), which operates a place of business, located at 1800 East Lincoln
Road, Kokomo, Indiana.
3. The Indiana Department of Environmental Management ("IDEM") has
jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail
to:
J.T. Battenberg III, President CT Corporation System
Delphi Automotive Systems Registered Agent for
5725 Delphi Dr. Delphi Automotive Systems
Troy, Michigan 48098 One N. Capitol Avenue
Indianapolis, Indiana 46204
5. The U.S. Environmental Protection Agency (EPA) was first notified of hazardous
waste activities at the site on August 18, 1980. The last notification update was
made on February 11, 1997. Respondent's permit for the storage of hazardous
waste expired on July 15, 1998. The facility is in the midst of an on-going
RCRA Facility Investigation (RFI). Respondent is currently operating as a large
quantity generator of hazardous waste. The U.S. EPA I.D. No. of the facility is
IND 000806851.
6. Respondent is an electronics manufacturing and light assembly operation.
Electronic components are produced and assembled for automobile audio and
electrical systems.
7. IDEM contends that the following violations were in existence or observed by the
Office of Solid and Hazardous Waste Management at the time of an inspection
conducted on April 8 and 9, 1999.
a. Pursuant to 40 CFR 262.11 and 40 CFR 268.7(a), a person who
generates a solid waste, as defined in 40 CFR 261.2, must
determine if that waste is a hazardous waste. If a generator's
waste is hazardous, the generator must determine if the waste is
restricted from land disposal under 40 CFR 268. Based on
information gathered by IDEM, Respondent failed to make a
proper hazardous waste determination and failed to determine if
the waste is restricted from land disposal for the following wastes:
(1) In the North Container Accumulation Building;
One (1) container labeled U2873899-714
Rho Tron HMM#H9883
Hysol Solder Resist Curtain & Catalyst WF82352
Eco STS 450 VF082350
Tennant 7200, 7210, AND 7130
Eco Cru Primer Parts A & B
MacDermid Solder Mask SM3230 HV
Ace Glazing Compound
(2) In the Drum Rinsing Area;
One (1) unlabeled 55-gallon metal container
(3) Plant 8;
One (1) unlabeled, undated 55-gallon container
located near the basement solvent still
(4) Outside the west end of the North Container Accumulation
Building;
One (1) blue 30-gallon container
One (1) black and white 30-gallon container
Two (2) 5-gallon containers
One (1) 7-gallon container.
Respondent submitted information on June 4, 1999, indicating that
waste determinations have been made since the date of the
inspection on the above-listed wastes. The following wastes were
determined to be hazardous: 1) the waste in the container labeled
U2873899-714; 2) one part of the Tennant products; Eco Cru
Primer Part B; and the waste in the 55-gallon container located
near the basement solvent still in Plant 8. The remaining wastes
were determined to be non-hazardous by Respondent.
On January 25, 2000, Respondent notified IDEM that a new system is being implemented at the facility whereby a waste
determination is made at the point of generation and either a
"Hazardous Waste," Non-hazardous Waste," or "Used Oil" label is
applied to the container or tank holding the waste at that time.
Based on the waste determination, the waste is then managed
according to all applicable rules and regulations.
b. Pursuant to 329 IAC 3.1-7-3(d) and 329 IAC 3.1-7-8(7), if the
transporter is unable to deliver the hazardous waste to the
designated facility or the alternate facility, the generator must
either designate another facility or instruct the transporter to return
the waste. A generator, if applicable, must enter the company
name of the second transporter who will transport the waste. If
more than two (2) transporters are used to transport the waste, the
generator must use a continuation sheet and list the transporters in
the order they will be transporting the waste. Based on
information gathered by IDEM, Respondent failed to provide the
proper manifest complete with all the transporters listed on
manifest Nos. INA 1243869 and INA 1243877. The manifests
were altered by a third party. The wastes were received by
transporter no. 2 (Conrail), but after several days, transporter no. 2
was struck out and replaced with a third transporter.
c. Pursuant to 329 IAC 3.1-7-4(b), if the generator is located in
Indiana and the consignment state does not require use of its own
manifest, or if the manifest prescribed by law of the consignment
state is incompatible with the manifest form adopted by the board
(Solid Waste Management Board), then the generator shall use the
manifest form (and continuation sheets) adopted by the board in
accordance with sections 7 through 13 of 329 IAC 3.1-7. Based
on information gathered by IDEM, Respondent failed to use the
proper hazardous waste manifest continuation sheets for manifests
INA 1243890 and INA 1243905.
d. Pursuant to 329 IAC 3.1-7-5 and 40 CFR 262.42, a generator of greater than 1000 kilograms of hazardous waste in a calendar month who does not receive a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within thirty-five (35) days of the date the waste was accepted by the initial transporter must contact the transporter and/or the owner or operator of the designated facility to determine the status of the hazardous waste. The generator must file an Exception Report with the Commissioner if he has not received a copy of the manifest with the handwritten signature of the owner
or operator within forty-five (45) days of the date the waste was
accepted by the initial transporter. Based on information gathered
by IDEM, Respondent had not contacted the transporter or
owner/operator of the designated facility when it had not received
a copy of manifest No. INA 1243912 within the thirty-five (35)
day period after offering waste for transport and had failed to
submit an Exception Report to the Commissioner when it had not
received a copy of the manifest within forty-five (45) days of the
date the waste was accepted by the initial transporter.
e. Pursuant to 329 IAC 3.1-7-7(g), generators who generate waste
excluded from regulation under this article must not use the state
of Indiana provided manifest forms or continuation sheets. These
forms are used for the tracking of hazardous waste regulated under
this article. No other use is authorized. Based on information
gathered by IDEM, Respondent used two (2) Indiana Uniform
Hazardous Waste Manifests (INA 1243909 and INA 1243911) for
the transport and disposal of only non-regulated waste.
f. Pursuant to 329 IAC 3.1-7-8, a generator must complete all
required information on the manifest. Based on information
gathered by IDEM, Respondent failed to include all required
information on manifest No. INA 1243877. The manifest did not
contain the required transporter identification number and/or the
telephone number for transporter no. 2.
g. Pursuant to 40 CFR 262.34(c)(1)(ii), a generator may accumulate
as much as fifty-five (55) gallons of hazardous waste or one (1)
quart of acutely 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, without
a permit or interim status and without complying with 40 CFR
262.34(a) provided that he marks his containers either with the
words "Hazardous Waste" or with other words that identify the
contents of the containers. Based on information gathered by
IDEM, Respondent failed to label one (1) satellite accumulation
container used to accumulate crushed fluorescent lamps with the
words "Hazardous Waste" or with other words to identify the
contents of the container.
h. Pursuant to 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for ninety (90) days or less without a permit or without having interim status provided that the date upon
which each period of accumulation begins is clearly marked and
visible for inspection on each container. Based on information
gathered by IDEM, Respondent failed to provide the start of
accumulation date on the following containers of hazardous waste;
(1) At least thirty-seven (37) containers, and other smaller
containers placed on a skid of assorted lab pack materials,
located in the North Storage Building's less than ninety day
accumulation area;
(2) One (1) 55-gallon metal container, located in the drum
rinse area; and.
(3) One (1) partially-filled three hundred (300) gallon tote used
to accumulate spent solvents, located at the FAB III less
than ninety day accumulation area.
Respondent contends that some of the containers were unused
product and that a waste determination had not been made at the
time of the inspection, even though the containers were located in
a hazardous waste accumulation area and some of the containers
were labeled as "Hazardous Waste."
i. Pursuant to 40 CFR 262.34(a)(3), a generator may accumulate
hazardous waste on-site for ninety (90) days or less without a
permit or without having interim status provided that, while being
accumulated on-site, each container and tank is labeled or marked
clearly with the words "Hazardous Waste." Based on information
gathered by IDEM, Respondent failed to label the following
containers and tanks of hazardous waste with the words
"Hazardous Waste:"
(1) At least sixteen (16) containers, and other smaller
containers placed on a skid of assorted lab pack materials,
located in the North Storage Building's less than ninety day
accumulation area;
(2) One 55-gallon metal container, located in the drum rinse
area;
(3) One (1) three hundred (300) gallon tote used to accumulate
spent solvents, located at the FAB III less than ninety day
accumulation area; and
(4) Tanks 1 & 2.
Respondent contends that some of the containers were unused
product and that a waste determination had not been made at the
time of the inspection, even though the containers were located in
a hazardous waste accumulation area.
j. Pursuant to 40 CFR 262.34(b), IC 13-30-2-1(10), and 40 CFR
270.1(c), a generator who accumulates hazardous waste for more
than ninety (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. A person may not commence or
engage in the operation of a hazardous waste storage facility
without having first obtained a permit from IDEM. Based on
information gathered by IDEM, Respondent stored the following
hazardous wastes for greater than ninety (90) days without
obtaining a permit from IDEM or complying with the 40 CFR Part
264 requirements:
1) One (1) 5-gallon metal container of Rho Tron. The
container was marked with a 12-10-1998 start of
accumulation date. The Container Inventory, dated 4/8/99,
listed this as hazardous. Respondent submitted information
to IDEM on June 4, 1999, indicating that the Rho Tron was
determined to be non-hazardous;
2) One (1) 55-gallon metal container of Rho Tron. The
container was marked with a 12-9-1998 start of
accumulation date. The Container Inventory, dated 4/8/99,
listed this as hazardous. Respondent submitted information
to IDEM on June 4, 1999, indicating that the Rho Tron was
determined to be non-hazardous;
3) One (1) 55-gallon partially filled container used to
aggregate smaller amounts of paint waste. The container
was marked with a 11-14-1998 start of accumulation date;
4) One (1) skid of assorted lab pack materials. The containers
were either marked with a 1-6-1999 start of accumulation
date, or not marked with a date at all;
5) One (1) three hundred (300) gallon container of skimmer
pit oil. The tote was marked with a 11-11-1998 start of
accumulation date and marked with a "Hazardous Waste"
label. Respondent submitted information to IDEM on
January 25, 2000, indicating that the container actually
held non-hazardous Used Oil. A waste determination for
Used Oil was submitted to IDEM on the same date;
6) One (1) 55-gallon container of Vertrl XMS Liquid. The
container was marked with a 7-17-1998 start of
accumulation date. The Container Inventory, dated 4/8/99,
listed this as hazardous. Respondent contends that the
Vertrel XMS Liquid was determined to be non-hazardous,
even though no supporting documentation was submitted to
IDEM.
k. 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 such activities on forms provided
by the Commissioner. Based on information gathered by IDEM,
Respondent failed to notify the Commissioner of its hazardous
waste storage activities.
l. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.171
40 CFR 265.173(b), a generator may accumulate hazardous waste
on-site for ninety (90) days or less without a permit or without
having interim status provided that, if a container holding the
hazardous waste is not in good condition, or if it begins to leak, the
hazardous waste is transferred from this container to a container
that is in good condition, or managed in a way that ensures
compliance with this requirement. A container holding hazardous
waste must not be opened, handled, or stored in a manner which
may rupture the container or cause it to leak. Based on
information gathered by IDEM, Respondent stored lead solder
contaminated hazardous waste in a metal 55-gallon container that
was crushed or damaged to a point where the sides were caved in.
The container was located in the North Building. Respondent
contends that the container was managed in a way that ensured
compliance with the requirement.
m. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16, a generator may accumulate hazardous waste on-site for ninety (90) days or less without a permit or without having interim status provided that facility personnel involved with hazardous waste
management are provided with a program of classroom instruction
or on-the-job training that teaches them to perform their duties in a
way that ensures compliance with 40 CFR 265.16. Based on
information gathered by IDEM, Respondent failed to provide
facility personnel involved in hazardous waste management with
the required training specific to their particular duties. Respondent
failed to provide Peggy Williard, who was signing hazardous
waste manifests, with hazardous waste manifest training.
n. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, a
generator may accumulate hazardous waste on-site for ninety (90)
days or less without a permit or without having interim status
provided that aisle space is maintained to allow the unobstructed
movement of personnel, fire protection equipment, spill control
equipment, and decontamination equipment to any area of facility
operation in an emergency, unless aisle space is not needed for any
of these purposes. Based on information gathered by IDEM,
Respondent failed to provide adequate aisle space for nine (9) 55-
gallon containers of hazardous waste located in the North Building
less than ninety day accumulation area. The containers were
grouped in three (3) rows with three (3) containers in each row.
o. Pursuant to 329 IAC 13-4-3(d), containers and aboveground tanks
used to store used oil at generator facilities must be labeled or
marked clearly with the words "Used Oil." Based on information
gathered by IDEM, Respondent failed to label two (2) 55-gallon
containers and two (2) 5-gallon containers of used oil with the
words "Used Oil." The containers were incorrectly labeled as
"Waste Oil." The violation was corrected at the time of the
inspection.
8. In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order. In the event a
dispute arises regarding a final action taken by IDEM under this Agreed
Order, both parties retain their right under the Indiana Administrative and
Procedures Act (IC 4-21.5) concerning review of such final action, but
this Agreed Order itself will not be subject to review.
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. Upon the effective date of the Order, Respondent shall comply with 40 CFR
262.11 for all solid wastes generated at the facility.
3. Upon the effective date of the Order, all containers labeled or marked as
Hazardous Waste must be managed as hazardous waste and in compliance with
40 CFR 262.34.
4. Upon the effective date of the Order, Respondent shall ensure that the proper
hazardous waste manifests and continuation sheets are used for the transport of
hazardous waste from the facility, and that the manifests and continuation sheets
are properly completed by including a list of all transporters which are known to
Respondent at the time the hazardous waste is offered for transport from the
facility. Within ten (10) days of the effective date of the Order, Respondent shall
notify all transporters it employs of the requirement to use the manifest form and
continuation sheets adopted by the board in accordance with sections 7 through
13 of 329 IAC 3.1-7, and of the requirement to notify Respondent prior to
transport and alteration of the manifest/continuation sheets if the transporter
changes the transport as originally designated by Respondent on the
manifest/continuation sheets. Respondent shall notify all future transporters of
the same requirements. Respondent shall notify IDEM if changes to the
information provided by Respondent on manifests or continuation sheets are
made by transporters within five (5) days after it receives notification that a
change has been made.
5. Upon the effective date of the Order, if a copy of the manifest with a handwritten
signature of the owner or operator of the designated facility is not received within
thirty-five (35) days of the date the waste was accepted by the initial transporter,
Respondent shall contact the transporter and/or owner or operator of the
designated facility to determine the status of the hazardous waste. Respondent
shall file an Exception Report with the Commissioner if he has not received a
copy of the manifest with the handwritten signature of the owner or operator of
the designated facility within forty-five (45) days of the date the waste was
accepted by the original transporter.
6. Upon the effective date of the Order, Respondent shall ensure that Indiana State
Uniform Hazardous Waste manifest forms or continuation sheets are not used for
only waste excluded from regulation under 329 IAC 3.1.
7. Upon the effective date of the Order, Respondent shall not store hazardous waste
at the facility for greater than ninety (90) days without obtaining a permit or
receiving an extension from IDEM.
8. Within sixty (60) days of the effective date of this Order, Respondent shall
decontaminate the North container storage area where waste was stored for
greater than ninety (90) days, and document to the IDEM that it has been
completed, by following the closure plan in Respondent's former RCRA permit
for the storage of hazardous waste, which was issued on June 30, 1993 and
expired on July 15, 1998. Analyses of the rinsates and other wastes generated
during closure activities shall be limited to those that are necessary to characterize
the wastes for disposal.
9. Upon the effective date of the Order, Respondent shall ensure that all containers
and tanks holding hazardous waste in less than ninety (90) day accumulation
areas at the facility are labeled or marked clearly with the words "Hazardous
Waste," per 40 CFR 262.34 (a)(3).
10. Upon the effective date of the Order, Respondent shall ensure that all satellite
accumulation containers holding hazardous waste at the facility are marked with
the words "Hazardous Waste" or with other words to identify the contents of the
containers, per 40 CFR 262.34(c)(1)(ii).
11. Upon the effective date of the Order, Respondent shall ensure that all containers
holding hazardous waste at the facility in less than ninety (90) day accumulation
areas are provided with the date upon which each period of accumulation begins,
per 40 CFR 262.34(a)(2).
12. Upon the effective date of the Order, Respondent shall ensure that all facility
personnel with positions related to hazardous waste management are provided
with the required training, including training specific to their hazardous waste
duties, per 40 CFR Part 265.
13. Upon the effective date of the Order, Respondent shall ensure that all containers
holding hazardous waste at the facility are opened, handled, and stored in a
manner that does not cause them to rupture or leak, and that if a container is not
in good condition, or if it begins to leak, the hazardous waste is transferred from
this container to a container that is in good condition, or managed in a way that
ensures compliance with 40 CFR Part 265.
14. Upon the effective date of the Order, Respondent shall ensure that adequate aisle
space is provided at all accumulation areas, per 40 CFR 265.35.
15. Upon the effective date of the Order, Respondent shall ensure that all containers
used to store used oil at the facility are labeled or clearly marked with the words
"Used Oil," per 329 IAC 13-4-3(d).
16. All submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Brenda J. Lepter
Office of Enforcement
Hazardous Waste Section
Indiana Department of
Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
17. Respondent is assessed a civil penalty of $34,400. 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.
18. 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 #8 $1000 per day
19. 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 any 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 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 not limited to civil penalties pursuant to IC 13-30-4.
20. 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 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
21. In the event that the civil penalty required by paragraph 17 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.
22. 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.
23. 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.
24. 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.
25. This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause
letter to Respondent.
By: ________________________ By: ________________________
Nancy L. Johnston, Chief
Hazardous Waste Section Title: ________________________
Office of Enforcement
Date: ________________________ Date: ________________________
LEGAL RECOMMENDATION: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ________________________ By: ________________________
Office of Legal Counsel
Date: ________________________ Date: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT
THIS _______ DAY OF ________________ 2000.
For the Commissioner:
Signed on May 11, 2000
__ ______________________
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement
Converted by Andrew Scriven