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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. H-13722
                            )
FREDA, 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.

    2.    Respondent is Freda, Inc. (hereinafter referred to as "Respondent"), a company doing business at 401 Growth Parkway, Angola, Indiana 46703.

    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:

            Mr. David Harmon, President
            Freda, Inc.
            401 Growth Parkway
            Angola, IN 46703


    5.    Respondent manufactures industrial floor coatings. Hazardous waste is generated from milling paint and flushing lines (F003/D001/D007/D008) and the disposal of drum/pail liners, cleaning and filter changes (D001/D007/D008). Respondent notified as a Large Quantity Generator (LQG) on March 17, 1989, and operates with the U.S. EPA identification number IND984 868 380.

    6.    Based upon an investigation of the facility on March 6 and 11, 1998, by the Office of Solid and Hazardous Waste Management (hereinafter referred to as "OSHWM") of IDEM, IDEM contends that the following violations were in existence or observed at the time of the inspection:

        a.    Pursuant to 40 CFR 262.11 and 40 CFR 268.7, a person who generates a solid waste must determine if that waste is a hazardous waste. Based upon information gathered by IDEM, Respondent did not make a proper waste determination for their waste paint and paint waste-related material.

             On 6/13/98, IDEM received a response from the Respondent which included an analysis showing the waste paint and paint waste-related material exhibited the following waste codes:

                Waste Paint: F003/D001/D007/D008
                Paint Waste-Related Materials: D001/D007/D008

            Because Respondent has stated that they do not use lead or chrome- containing pigments but metals have been detected in the waste streams, Respondent plans to re-test the waste streams and submit the second set of analysis for review.

            Respondent notified IDEM on 3/16/99 that the waste streams had been re-tested, and the TCLP showed that the liquid paint waste contained lead. However, the waste rags tested below the detectable limit for lead.

        b.    Pursuant to 40 CFR 262.34(a)(1)(i) referencing 265.173(a), a container holding hazardous waste must always be closed during storage, except when it is necessary to add or remove waste. Based upon information gathered by IDEM, Respondent failed to store one (1) 55-gallon satellite accumulation container closed.

        c.    Pursuant to 40 CFR 262.34(c)(1)(ii), a generator must mark containers of hazardous waste either with the words "Hazardous Waste" or with other words that identify the contents of the containers. Based upon information gathered by IDEM, Respondent failed to mark one (1) 55- gallon satellite accumulation container with the words "Hazardous Waste" or with other words that identify the contents of the container.


        d.    Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.32 (b-c), all facilities must be equipped with the following:

            1)    A device, such as a telephone (immediately available at the scene of operations) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or State or local emergency response teams; and,

            2)    Portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill control equipment, and decontamination equipment.

             On 11/4/98, IDEM observed that the above-mentioned violations contained in Item 6(d) had been corrected.

        e.    Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.34(a), all personnel involved in the handling of hazardous waste must have immediate access to an internal alarm or emergency communication device. Based upon information gathered by IDEM, Respondent failed to make forms of communication or the alarm accessible to employees working with hazardous waste in the less than 90-day area located outside the facility.

             On 11/4/98, IDEM observed that the above-mentioned violation contained in Item 6(e) had been corrected.

    7.    Based upon an investigation of the facility on November 4, 1998, by OSHWM of IDEM, IDEM contends that the following violations were in existence or observed at the time of the inspection:

        a.    Pursuant to 40 CFR 262.11 and 40 CFR 268.7, a person who generates a solid waste must determine if that waste is a hazardous waste. Based upon information gathered by IDEM, Respondent did not make a proper waste determination for the following waste:

            1)    Waste rags generated from cleaning; and

            2)    Four (4) 55-gallon containers of unknown material located in the less than 90-day accumulation area outside the facility.

        b.    Pursuant to 40 CFR 262.34(a)(2), the date upon which each period of accumulation begins must be clearly marked and visible for inspection on each container. Based upon information gathered by IDEM, Respondent failed to mark thirty-eight (38) containers of hazardous waste located in

the less than 90-day accumulation area with the accumulation start date.
             c.    Pursuant to 40 CFR 262.34(a)(3), while being accumulated on-site, each container and tank must be labeled or marked clearly with the words "Hazardous Waste." Based upon information gathered by IDEM, Respondent failed to label twelve (12) containers of hazardous waste located in the less than 90-day accumulation area with the words "Hazardous Waste."

        d.    Pursuant to 40 CFR 262.34(c)(2), a generator who accumulates hazardous waste at or near any point of generation must mark the container holding the excess accumulation with the date the excess amount began accumulating. Based upon information gathered by IDEM, Respondent failed to mark a 55-gallon satellite accumulation container of paint waste- related material located outside adjacent to the less than 90-day accumulation area with the start of accumulation date.

        e.    Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(1-3), facility personnel must maintain the following on-site:
        
            1) Job titles for the positions related to hazardous waste management and the name of employees filling each job title;

            2) A written job description for the positions related to hazardous waste management, which includes the requisite skills, education or other qualifications, and duties related to hazardous waste management; and

            3) A written description of both introductory training and continuing training required for each position.

            Based upon information gathered by IDEM, Respondent failed to maintain the above-referenced items on-site.

             Respondent provided IDEM with job titles and written job descriptions for the positions related to hazardous waste management on 12/2/98.

        f.    Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31, facilities must be maintained and operated to minimize the possibility of fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment. Based upon information gathered by IDEM, Respondent allowed an unknown material to be managed in four (4) damaged drums.

             Respondent provided IDEM with documentation showing that the drums had been properly shipped off-site on 2/26/99.

        g.    Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, the owner or operator must maintain aisle space 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. Based upon information gathered by IDEM, Respondent failed to maintain adequate aisle space to allow for the movement of spill control and emergency equipment and inspections in the less than 90-day area located outside behind the facility.

        h.    Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.52 (c-e), a facility must include the following items in its contingency plan:

            1)    Descriptions of the arrangements agreed to by local police departments, fire departments, hospitals, contractors, and State and local emergency response teams to coordinate emergency services;

            2)    An up-to-date list of the names, addresses, and phone numbers (office and home) of the primary coordinator and all persons qualified to act as emergency coordinators; and,

            3)    An up-to-date list of all emergency and decontamination equipment at the facility, including the location and physical description of each item on the list.

            Based upon information gathered by IDEM, Respondent's contingency plan failed to contain the above-referenced items.

             Respondent provided IDEM with a revised contingency plan on 12/2/98.

        i.    Pursuant to 40 CFR 262.34(a)(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 owner or operator must transfer the hazardous waste from this container to a container that is in good condition. Based upon information gathered by IDEM, Respondent allowed unknown material to be placed in four (4) damaged drums located outside in the less than 90-day accumulation area.

             Respondent provided IDEM with documentation showing that the drums had been properly shipped off-site on 2/26/99.

    8.    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 his 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 this Order, Respondent shall mark thirty-eight (38) containers of hazardous waste located in the less than 90-day accumulation area with the accumulation start date and ensure that all containers are marked with an accumulation start date pursuant to 40 CFR 262.34(a)(2). Respondent shall submit documentation of compliance to IDEM.

    3.    Upon the effective date of this Order, Respondent shall label twelve (12) containers of hazardous waste located in the less than 90-day accumulation area with the words "Hazardous Waste" pursuant to 40 CFR 262.34(a)(3). Respondent shall submit documentation of compliance to IDEM.

    4.    Upon the effective date of this Order, Respondent shall mark a 55-gallon satellite accumulation container of paint waste-related material located outside adjacent to the less than 90-day accumulation area with the start of accumulation date pursuant to 40 CFR 262.34(c)(2). If the container is full, then Respondent shall dispose of it upon the effective date of this Order. Respondent shall submit documentation of compliance to IDEM.

    5.    Within thirty (30) days of the effective date of this Order, Respondent shall submit to IDEM and maintain on-site a written description of both introductory training and continuing training required for each position pursuant to 40 CFR 265.16(d)(3).

    6.    Upon the effective date of this Order, Respondent shall maintain adequate aisle space to allow for the movement of spill control and emergency equipment and inspections in the less than 90-day area located outside behind the building pursuant to 40 CFR 265.35.

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

        Ms. Dianna Schlicher
        Office of Enforcement
        Hazardous Waste Section
        Indiana Department of Environmental Management
        100 N. Senate Avenue
        P. O. Box 6015
        Indianapolis, IN 46206-6015

    8.    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 on 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 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."

    9.    Respondent is assessed a civil penalty of Thirty-Three Thousand Eight Hundred Dollars ($33,800). Within thirty (30) days of the effective date of this Order, Respondent shall pay a cash penalty of Six Thousand Seven Hundred Sixty Dollars ($6,760). The payment shall be submitted to the Environmental Management Special Fund, as directed in paragraph 13. In lieu of payment of the remaining civil penalty, Respondent shall perform and complete the Supplemental Environmental Project (SEP) as described in Attachment A. Attachment A is hereby incorporated by reference and made a part of this Order. The total funds expended on the SEP shall be a minimum of $54,080. If the SEP is not completed in accordance with this agreement and within the specified time periods set forth in Order paragraph 10, Respondent agrees to pay the remaining amount of the civil penalty, plus interest at the rate established by IC 24-4.6-1- 101, to the Environmental Management Special Fund. Payment of the remaining civil penalty shall be submitted within fifteen (15) days from receipt of a notice to pay from IDEM. Interest on the remaining civil penalty shall be paid from the effective date of this Order.

    10.    The SEP shall be completed within thirty (30) days of the effective date of this Agreed Order. Upon completion of the SEP, Respondent shall submit documentation showing that all necessary components to fulfill the SEP requirements have been purchased and installed. Respondent shall also submit a statement that the SEP is operating according to the manufacturer's specifications.

    11.    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 the requirements         $1,000 per day per violation
        of Order numbered 6.

    12.    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 penalties 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 of this action and shall be mailed to:

            Cashier
            IDEM
            100 N. Senate Avenue
            P. O. Box 7060
            Indianapolis, IN 46207-7060

    14.    In the event that the civil penalty required by paragraph 9 is not paid within specified time frames 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.

    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 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.

    16.    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.

    17.    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.

    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

By: _________________________            By: _________________________
Nancy L. Johnston, Section 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 ____________________, 1999.

                            For the Commissioner:

                            Signed on 5/7/99
                            Felicia Robinson George
                            Assistant Commissioner
                            Office of Enforcement

Converted by Andrew Scriven