STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. H-13656
v. )
PROTECTIVE COATINGS, INC. )
)
)
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, 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 established by IC 13-13-1-1.
2. Respondent is Protective Coatings, Inc., a.k.a. Proco, (hereinafter referred to as
"Respondent"), a company doing business at 1602 Birchwood Avenue, Fort
Wayne, Indiana.
3. The Indiana Department of Environmental Management (IDEM) has jurisdiction
over the parties and subject matter of this action.
4. Respondent submitted notification as a generator of hazardous waste to the U.S.
EPA on August 25, 1980, and was assigned the I.D. # IND 056 034 622.
Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail
to:
Mr. Elmo Murrell, President Mr. Robert Kaufman
Protective Coatings, Inc. Resident Agent
1602 Birchwood Avenue 1602 Birchwood Avenue
Fort Wayne, IN 46803 Fort Wayne, IN 46803
6. On July 17, 1997, Messrs. Mark Espich, Dave Appel, and Mike Randall of the
Office of Solid and Hazardous Waste Management (OSHWM) of IDEM,
conducted a Complaint Investigation of the facility. This investigation was the
result of a complaint filed with IDEM of Proco intentionally disposing of waste
mercury on the ground. Based on the results of soil samples taken at the time of
the investigation, IDEM contends that the following violations were in existence
or observed at the time of the inspection:
Pursuant to IC 13-30-2-1(1)(A), a person may not discharge, emit, cause,
allow, or threaten to discharge, emit, cause or allow any contaminant or
waste, either alone or in combination with contaminants from other
sources, into the environment. Based on information gathered by IDEM,
waste mercury is known to be generated at the facility and elevated levels
of mercury were found in all soil samples taken on Proco's property.
Pursuant to IC 13-30-2-1(4) and IC 13-30-2-1(5), a person may not
deposit, dump, or cause or allow the deposit or open dumping of any
contaminants or solid waste upon the land, except through methods
acceptable to the solid waste board. Based on information gathered by
IDEM, Respondent allowed the open dumping of solid wastes upon the
ground in a manner which creates, or would create, a pollution hazard.
Specifically, the facility dumped blasting grit on the east side of the
property and allowed grit from the larger blasting operation to disperse
into the environment.
7. In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
WHEREFORE, based upon the Findings of Fact and upon consent of the parties, it is hereby
ORDERED that:
1. This Agreed Order shall be effective ("effective date") when it is approved by the
Complainant or his delegate, and has been received by the Respondent. This
Agreed Order shall have no force or effect until the effective date.
Within thirty (30) days of the effective date of the Order, Respondent shall
implement measures to control the dispersal of blasting grit from its blasting
operations. Respondent shall also complete a hazardous waste determination and
properly dispose of all waste blasting grit currently stored in piles at the facility.
Submit documentation of control measures to be implemented and proper disposal
of waste grit on-site.
3. Within thirty (30) days of the effective date of the Order, Respondent shall submit
to IDEM a site assessment plan. The purpose of this plan will be to conduct
sampling and analysis in order to assess the degree and extent of contamination in
the soil and any impact on the groundwater from releases of mercury. The plan
must:
a. Address all areas of contamination at this site. This must include, at a
minimum, areas at the site where waste spillage occurred;
b. Include a soil sampling grid that overlaps the area;
c. Specify the method of determining the number and location of samples to
be taken within the grid to yield a representative assessment of the
contaminated area as outlined in "Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods, EPA Publication", SW-846;
d. Include the method of sample collection, per SW-846;
e. State the maximum distance between each sample location. This distance
is not to exceed ten (10) feet;
f. State the soil samples will not be composited;
g. Clearly define all sampling and analytical protocol designed to identify
hazardous waste or its constituents and to determine the physical extent of
the contamination per 40 CFR Part 261.30(a) and 40 CFR Part 261
Appendices I, II, and III;
h. Specify that chain-of-custody of the samples shall be maintained and
Quality Assurance and Quality Control (QA/QC) procedures shall be
followed;
i. Include a statement in the initial proposal that a contingent plan for
sampling outside the grid area will be submitted in the event that sampling
shows contamination to exist at the limit of the grid area;
j. Include time frames for implementation of the site assessment plan; and
k. Be approved by IDEM prior to implementation of the plan.
4
. Within fifteen (15) days of notice of approval of the site assessment plan by
IDEM, Respondent shall implement the plan as approved and in accordance with
the time frames contained therein. Respondent shall submit the results of the
analyses to IDEM for review and approval.
5. If contamination is found as a result of the site assessment, within sixty (60) days
following IDEM review and approval of the analyses, Respondent shall submit a
cleanup plan to IDEM for approval. The cleanup plan must:
a. Include the results of the analyses, chain-of-custody information, and the
Quality Assurance and Quality control records;
b. Address all areas determined by the analyses to be contaminated;
c. Address the groundwater, if it is determined to be affected;
d. Include a soil sampling and analysis plan to be performed after the cleanup
has been done which verifies that all contamination has been removed; and
e. Include a time frame for implementation of the cleanup plan.
6. Within fifteen (15) days of IDEM's notice of approval of the cleanup plan,
Respondent shall implement the plan as approved and in accordance with the time
frames contained therein.
7. Within thirty (30) days of completion of the cleanup, Respondent shall submit to
IDEM certification by an independent registered professional engineer that the
cleanup has been completed as outlined in the approved plan.
For additional information on sampling, analysis, remediation, and cleanup levels, please
see Parts 13, 14 (a&b) and 15 of the attached Hazardous Waste Management Unit
Closure Guidance.
8. All submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Richard R. Milton, Case Manager
Office of Enforcement
Indiana Department of
Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
Respondent is assessed a civil penalty of twenty-one thousand four hundred
dollars ($21,400). Said penalty amount shall be payable in nine (9) installments.
The first installment of two thousand three hundred seventy-seven dollars and
eighty-four cents ($2,377.84) shall be due within thirty (30) days of the effective
date of this Agreed Order. All subsequent installments will be two thousand three
hundred seventy-seven dollars and seventy-seven cents ($2,377.77) and shall be
due within ninety (90) days of the preceding on-time installment until the penalty
is paid in full. All checks shall be made payable to the Environmental
Management Special Fund.
Within thirty (30) days of the effective date of the Order, Respondent shall pay, as
reimbursement for expenses incurred by IDEM for the July 17, 1997, sampling
event, the amount of $1,681. Payment shall be made payable to the Indiana
Department of Environmental Management. This payment shall be addressed to
The Office of Enforcement, Attention: Richard R. Milton.
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
Failure to comply
with Orders #2 thru 7 $1,000 per day
12. Stipulated penalties shall be due and payable within thirty (30) days after
Respondent receives written notice that the Commissioner 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 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 13-30-4-1.
13. Civil and stipulated penalties are payable by check to the Environmental
Management Special Fund. Checks shall include the Cause Number and shall be
mailed to:
Cashier
IDEM
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
14. In the event that the civil penalty required in paragraph 9 and the reimbursement
costs in paragraph 10 are not paid according to the agreed upon payment schedule,
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 and the
sampling costs are paid in accordance with the Agreed Order.
15. 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 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 Order.
16. 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.
17. The Respondent shall provide a copy of this 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 Order.
18. This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause
letter to Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Protective Coatings, Inc.
By: By:
Nancy L. Johnston, Chief
Hazardous Waste Section
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 8 DAY OF August , 1999.
FOR THE COMMISSIONER:
signed 8/9/99
Felicia Robinson George
Assistant Commissioner of Enforcement
Converted by Andrew Scriven