STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. 2000-9058-H
v. )
)
MILLER PLATING & METAL FINISHING, INC. )
)
Respondent. )
AGREED ORDER
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.
I. FINDINGS OF FACT
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.
Respondent is Miller Plating & Metal Finishing, Inc. (hereinafter referred to as "Respondent"), which is a company doing business at 3200 North 6th Avenue, Evansville, located in Vanderburgh County, Indiana.
The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
Mr. R. Glen Miller, President and Registered Agent
Miller Plating & Metal Finishing, Inc.
1551 Allens Lane
Evansville, Indiana 47710
Respondent conducts metal finishing and electroplating. Respondent notified as a Large Quantity Hazardous Waste Generator on September 11, 1997, and operates with U.S. EPA identification number IND 006 365 985.
Based on an investigation by designated representatives of the Office of Land Quality of IDEM on February 10 and 11, 2000, IDEM contends that the following violations were in existence or observed at the time of the inspection:
Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous. Based on information gathered by IDEM, Respondent did not make hazardous waste determinations on seventeen (17) containers of research and development waste in the container storage area.
Pursuant to 40 CFR 262.34(a)(2), a 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. Based on information gathered by IDEM, Respondent did not label four (4) containers in the container storage area with accumulation start dates.
Pursuant to 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that containers are marked with the words "Hazardous Waste." Based on information gathered by IDEM, Respondent did not label containers in the container storage area with the words "Hazardous Waste."
Pursuant to 40 CFR 262.34(b), a generator who accumulates hazardous waste 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. Based on information gathered by IDEM, Respondent stored a container of hazardous waste on-site in the container storage area for greater than 90 days without complying with 40 CFR 264 and 40 CFR 270.
Pursuant to IC 13-30-2-1(10) and 40 CFR 270.1(c), no person shall commence or engage in the operation of a hazardous waste facility without having first obtained
a permit from IDEM. Based on information gathered by IDEM, Respondent operated as a storage facility without having first obtained a permit.
Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility, must notify the Commissioner of its hazardous waste activity on the approved forms. Based on information gathered by IDEM, Respondent failed to notify the Commissioner of storage activities.
Pursuant to 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.171, if a container holding hazardous waste is not in good condition, or if it begins to leak, the generator must transfer the hazardous waste from this container to a container that is in good condition. Based on information gathered by IDEM, Respondent did not store hazardous waste chrome sludge in a satellite container in good condition.
Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.173(a), a container holding hazardous waste must always be closed during storage, unless necessary to add or remove waste. Based on information gathered by IDEM, Respondent did not store eleven (11) containers of plating waste in the container storage area closed.
Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.53, a copy of an up-to-date contingency plan must be maintained at the facility and provided to local emergency personnel. Based on information gathered by IDEM, Respondent failed to provide a copy of the facility contingency plan to local emergency authorities.
Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must conduct weekly inspections of container storage areas. Based on information gathered by IDEM, Respondent failed to conduct weekly inspections of the container storage area.
Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, a generator must maintain adequate aisle space to allow the unobstructed movement of personnel, fire protection, spill control, and decontamination equipment. Based on information gathered by IDEM, Respondent failed to provide the required aisle space in the container storage area.
7. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.
II. ORDER
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. Within thirty (30) days of the Effective Date of this Order, Respondent shall make a proper waste determination, pursuant to 40 CFR 262.11, on each of the seventeen (17) containers of research and development waste in the container storage area and submit the waste determinations to IDEM for review.
3. Respondent shall ensure that all hazardous waste containers are labeled with the words ?Hazardous Waste? pursuant to 40 CFR 262.34(a)(3).
4. Within sixty (60) days of the effective date of the Order, Respondent shall decontaminate the hazardous waste container storage area noted in Finding 6.d. as follows:
remove all wastes from the pad and appropriately dispose;
mechanically clean the pad by scraping, sweeping, or other method, to remove all physical contamination;
have a professional engineer ("PE") inspect the pad for cracks. If the PE certifies that the concrete does not have any cracks that are likely pathways for contaminants to migrate through the concrete floor to the subsoil, proceed with item d. through h. If cracks are detected, perform Item i. at this point;
wash the pad with a high pressure steam cleaner with detergent or appropriate solvent to remove the previously stored waste materials;
rinse the pad three (3) times with water;
collect the third (final) rinsate separately and analyze two (2) samples to show that the pad's surface meets the cleanup levels. For inorganic and certain organic parameters, the cleanup levels of the rinsate will be based on the Maximum Contaminant Levels (MCLs) of the National Primary Drinking Water Regulations (40 CFR 141). For the organic parameters without MCLs, the cleanup levels of the rinsate will be based on Risk Integrated System of Closure (RISC) Tier 1 Residential Groundwater levels. If RISC levels are not available the analytical methods? Practical Quantitation Limits (PQLs), as defined in SW-846 will be used. The analytical parameters will be based on wastes previously stored on the pad;
ensure that care is taken to prevent migration of cleaning liquids from the pad area;
collect and dispose of all residues and rinsates as hazardous waste unless the residues and rinsates are analyzed and determined to be non-hazardous;
sample the soil underlying any cracks found in the inspection to check for contamination. If no contamination is found, seal the cracks and proceed with Items d. through h. above. If contamination is found, submit a hazardous waste closure plan to IDEM for approval for the container storage area in accordance with the provisions of 40 CFR 264 Subpart G. Upon notice of approval of the closure plan by IDEM, implement the approved plan in accordance with the time frames contained therein.
5. Within fifteen (15) days of receiving sampling results for the rinsate (required in Order Condition 4), Respondent shall submit documentation, including sample results, that the decontamination has been completed to IDEM for review. Analytical results submitted to IDEM for review shall include signed chain-of-custody sheets, sampling dates, analysis dates, analytical methods used, MCLs, PQLs and quality control results. The quality assurance/quality control (QA/QC) results shall include initial and continuing calibration results, blank results, matrix duplicates, and matrix spike/matrix spike duplicate results.
6. Respondent shall ensure that all hazardous waste is stored and/or accumulated in containers that are in good condition pursuant to 40 CFR 265.171.
7. Respondent shall ensure that, pursuant to 40 CFR 262.34(a)(1)(i) and 40 CFR 262.34(c)(1)(i), all hazardous waste containers are kept closed during storage except when it is necessary to add or remove waste.
8. Within fifteen (15) days of the Effective Date of this Order, Respondent shall submit documentation to IDEM that a copy of the facility?s contingency plan has been provided to local emergency authorities pursuant to 40 CFR 262.34(a)(4).
9. Respondent shall ensure that all hazardous waste container storage areas are inspected weekly pursuant to 40 CFR 262.34(a)(1)(i).
10. Respondent shall ensure that adequate aisle space is maintained in the container storage area pursuant to 40 CFR 265.35.
11. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Lori Colpaert, Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
12. All submittals 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 upon my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to 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."
13. Respondent is assessed a civil penalty of $19,200. Said penalty amount shall be due and payable to the Environmental Management Special Fund in six (6) payments of $3,200. The first payment shall be made within thirty (30) days of the Effective Date of this Agreed Order and each additional payment of $3,200 shall be due in thirty (30) day intervals until the penalty has been paid in full.
14. 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 # 2, 4, 5 and 8 $500 per day
15. 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 not limited to civil penalties pursuant to IC 13-30-4.
16. 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
17. In the event that the civil penalty required by paragraph 13 is not paid within thirty (30) of the date required by paragraph 13, 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.
18. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, 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.
19. 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.
20. 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.
21. 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:__________________________
COUNSEL FOR COMPLAINANT: 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:
Adopted 9/11/00
_________________________
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement