Converted WP file ./CO/H-12722

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STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT
                ) SS:        OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

                                )
                                )
COMMISSIONER, INDIANA DEPARTMENT OF    )
ENVIRONMENTAL MANAGEMENT,            )
                                )
        Complainant,                     )
                                ) CAUSE NO. H-12722
            v.                    )
                                )
BLOOMINGTON INVESTMENT GROUP, INC.        ) AND PWI ENVIRONMENTAL, INC.            )
                                )
        Respondents.                     )

NOTICE AND ORDER OF THE
COMMISSIONER OF THE
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

TO:    Gary Koger, President            Mark L. Bayler, Resident Agent
    Bloomington Investment Group, Inc.    Bloomington Investment Group, Inc. and
    1151 W. Thompson Road            PWI Environmental, Inc.
    Indianapolis, Indiana 46217            1151 W. Thompson Road
                            Indianapolis, Indiana 46217
    David Allison, President
    PWI Environmental, Inc.
    1151 W. Thompson Road
    Indianapolis, Indiana 46217

VIA CERTIFIED MAIL NO. VIA CERTIFIED MAIL NO.

VIA CERTIFIED MAIL NO.

This Notice and Order of the Commissioner of the Department of Environmental Management is issued against Bloomington Investment Group, Inc. and PWI Environmental, Inc. (the Respondents) for violation of 329 IAC 3.1 and IC 13-30. This Order is issued pursuant to IC 13-30-3-4, IC 13-30-3-10, IC 13-30-3-11, and IC 4-21.5-3-6 and is based on violations found during investigations and record reviews conducted by the Office of Solid and Hazardous Waste Management. Respondents were in violation of 329 IAC 3.1 and IC 13-30, as specified below.

FINDINGS OF FACT

1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management (hereinafter referred to as "IDEM"), a department of the State of Indiana created by IC 13-13-1-1.

2. Complainant has jurisdiction over the parties and the subject matter of this action.

3. Respondents are Bloomington Investment Group, Inc. ("Respondent BIGI") and PWI Environmental, Inc. ("Respondent PWI"). Respondent BIGI owns property located at 415 North College Avenue in Bloomington, Indiana, hereafter referred to as the "BIGI facility." Hazardous Waste had been stored at the BIGI facility for greater than ninety (90) days by the previous owner when Respondent BIGI took ownership.

4. Pursuant to 40 CFR 262.10 (f) (currently 40 CFR 262.10 (h)), an owner or operator who initiates a shipment of hazardous waste from a treatment, storage, or disposal facility must comply with the generator standards established in 40 CFR Part 262.

5. On August 28, 1992, the IDEM issued a Notice of Violation to Retico, Inc. for improper management of hazardous waste at the Retico facility, located at 415 North College Avenue in Bloomington. During the negotiation process, the property was sold to Respondent BIGI. Respondent BIGI took responsibility for negotiating settlement of the NOV and, as part of the purchase agreement, agreed to dispose of all hazardous wastes located on-site. Respondent PWI is a spill contractor who arranged for the transport and disposal of hazardous wastes from the BIGI facility.

6. On January 21, 1993, staff from IDEM's Office of Solid and Hazardous Waste Management (OSHWM) and Office of Enforcement (OE) conducted an inspection of the BIGI facility. The purpose of this inspection was to determine whether all hazardous materials and wastes had been removed from the property.

The results of the inspection indicated that all hazardous materials and wastes had been removed.

7. On April 21, 1993, staff from IDEM's OSHWM and OE conducted an inspection of the PWI, Inc. facility located at 2344 South Tibbs Avenue, Indianapolis, to determine whether hazardous waste from the BIGI facility was on-site. The results of the inspection indicated that hazardous wastes from the BIGI facility were present at the PWI, Inc. building located at the above-noted address.

8. As a result of the inspections referred to in Findings of Fact 6 and 7 above, BIGI and PWI submitted numerous responses in an attempt to explain the disposal of the wastes found on-site.

9. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

        Gary Koger, President            Ihor Boyko, Resident Agent             Bloomington Investment Group, Inc.    Bloomington Investment Group,
        2344 South Tibbs Avenue              Inc. and PWI Environmental Inc.
        Indianapolis, Indiana 46224            2344 South Tibbs Avenue
                                Indianapolis, Indiana 46224
        David Allison, President
        PWI Environmental, Inc.
        2344 South Tibbs Avenue
        Indianapolis, Indiana 46224

10. Respondent BIGI received the Notice of Violation on September 3, 1996, and Respondent PWI received the Notice of Violation on September 3, 1996. The Notice of Violation was received by the Resident Agent for both Respondents on September 6, 1996.

11. The Notice of Violation contained an offer to enter into an Agreed Order
containing actions required to correct the violations.

12. Settlement conferences were held by the parties on September 27, 1996 and March 19, 1997. Additional correspondence was exchanged by the parties on several occasions. Respondents continue to dispute the violations.

13. More than sixty (60) days have elapsed since Respondents were offered
the opportunity to enter into an Agreed Order.

14. Despite repeated attempts to resolve these violations, Respondents have not entered into an Agreed Order.

FINDINGS OF VIOLATION

1. Based upon a record review conducted by staff of the OSHWM on December 18, 1995 of the responses referred to in Findings of Fact 7 above, the IDEM contends that the following violations were in existence at the time of the record review.

a. Pursuant to 329 IAC 3.1-1-10 and 329 IAC 3.1-1-12, 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 the IDEM, Respondent BIGI failed to notify the commissioner of a change in ownership and of its hazardous waste activities when it purchased the property located at 415 North College Avenue in Bloomington, Indiana from Retico, Inc. on October 8, 1992.

             b.    Pursuant to 329 IAC 3.1-7-8, generators shall include on all hazardous waste manifests the name and mailing address of the generator. Based on information gathered by the IDEM, Respondent BIGI failed to include on hazardous waste manifests the proper generator name and address. Specifically, Respondent BIGI utilized the name and address of the previous owner (ST Semiconductors of Indiana, Inc.) rather than using the Bloomington Investment Group, Inc.'s name and address on manifests used for off-site disposal of hazardous wastes from its facility.

             c.    Pursuant to 329 IAC 3.1-7-3, generators of hazardous waste must utilize a hazardous waste manifest when offering hazardous waste for off-site disposal. Based on information gathered by the IDEM, Respondent BIGI offered hazardous waste for off-site transportation without using a manifest. Specifically, during the inspection conducted by staff on January 21, 1993, it was noted that no hazardous waste was present on- site. However, hazardous waste manifests received from Respondent BIGI, indicate that waste was offered for shipment from the BIGI facility on January 23, 1993 (Manifest #INA0522673), February 4, 1993 (Manifest #MI2982321), and April 1, 1993 (Manifest #INA0522629). Therefore, no properly prepared manifest accompanied the shipment of these wastes from the time they originally left the facility to the time the transporter took receipt.

d. Pursuant to 40 CFR 262.12, a generator must not offer his hazardous waste to treatment, storage, or disposal facilities that have not received an EPA identification number. Based on information gathered by the IDEM, Respondent BIGI gave hazardous waste (2 pounds butanone peroxide, 8 pounds nitromethane, 18 pounds perchloric acid 70%, 1 pound mixed ethyl/methoxyethyl ether, 2 pounds MEK peroxides in phthalate, and 2 pounds air reactive liquid) to the Morgan County Sheriff's Department on or about January 29, 1993 for the express purpose of disposal.

e. Pursuant to 329 IAC 3.1-7-3, a generator who offers for transport hazardous waste for off-site disposal must use a hazardous waste manifest. Based on information gathered by the IDEM, Respondent BIGI offered hazardous waste to the Morgan County Sheriff's Department for disposal without using a manifest.

f. Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is a hazardous waste. Based on information gathered by the IDEM, Respondent BIGI failed to make a proper waste determination for all waste on-site. Specifically, Respondent BIGI failed to make a proper waste determination for hazardous waste sent to the Morgan County Sheriff's Department for disposal.

g. Pursuant to 40 CFR 263.12, a transporter may store manifested shipments of hazardous waste in containers at a transfer facility for a period of ten (10) days or less without being subject to regulation under 40 CFR Parts 264, 265, 268, and 270 with respect to the storage of those wastes. Based on information gathered by the IDEM, Respondent PWI stored hazardous waste at its facility for greater than ten (10) days without meeting the requirements of the above-listed Parts. Specifically, during the inspection of the PWI, Inc. facility on April 21, 1993, IDEM staff observed three (3) chlorine gas canisters and one (1) 55-gallon drum labeled "Hazardous Waste, D002, Hexamethylene diamine, Generator: ST-Semicon of Indiana" stored in van trailers on property used by Respondent PWI. In addition, two (2) boxes of chemicals from the BIGI facility that were not incorporated into Respondent PWI's laboratory stock or added to bulk hazardous waste containers shipped to other facilities, were stored in Respondent PWI's office and laboratory building.

h. Pursuant to 40 CFR 263.20, a transporter must sign and date the hazardous waste manifest acknowledging acceptance of the hazardous waste from the generator. Based upon information gathered by the IDEM, Respondent PWI improperly dated manifest numbers MI2982321 (dated

2/4/93), INA0522673 (dated 1/23/93), and INA0522629 (dated 4/5/93). An inspection conducted by IDEM staff on January 21, 1993, of the BIGI facility found that no waste was present on-site, therefore, no waste could have left the site on the dates indicated on the above-noted manifests.

i. Pursuant to 40 CFR 263.20, a transporter may not accept hazardous waste from a generator unless it is accompanied by a manifest. Based on information gathered by the IDEM, Respondent PWI transported unmanifested hazardous waste (as described in Findings of Violation 1d. above) to the Morgan County Sheriff's Department.

j. Pursuant to 40 CFR 263.10(c)(2), transporters mixing wastes of different DOT shipping descriptions must comply with 40 CFR Part 262. Based on information gathered by the IDEM, Respondent PWI failed to make a proper waste determination upon mixing wastes of different DOT shipping descriptions.

             k.    Pursuant to 40 CFR 268.7, transporters who mix wastes of different DOT shipping descriptions must make a waste determination as well as comply with applicable generator requirements. Based on information gathered by the IDEM, Respondent PWI improperly completed a Land Disposal Restriction Notification for wastes referred to in paragraph j. above. Specifically, all waste codes were not included on the certification.

ORDER

1. Upon the effective date of the Order, Respondents BIGI and PWI shall ensure that all hazardous wastes generated and transported will be managed in accordance with the applicable parts of 40 CFR 262 and 263.

2. Within ten (10) days of the effective date of the Order, Respondent BIGI shall provide to this office a written explanation as to the exact dates the wastes addressed in hazardous waste manifests numbered MI 2982321, INA 0522673, and INA 0522629 were shipped from the BIGI facility, the name of the transporter used, and the destination to which the wastes were originally shipped.

3. Within ten (10) days of the effective date of the Order, Respondent BIGI shall amend the notification for its facility to indicate current ownership and all hazardous waste activities. The notification shall indicate the change in ownership as having occurred on the date BIGI purchased the property from Retico, Inc.

Respondent BIGI shall submit to this office a copy of the amended notification.

4. Within ten (10) days of the effective date of the Order, Respondent BIGI shall amend the "generator" portion of all hazardous waste manifests used for off-site disposal of waste from its facility to reflect BIGI as the generator of the waste. Respondent BIGI shall submit to this office copies of the amended manifests.

5. Upon the effective date of the Order, Respondents BIGI and PWI shall ensure that hazardous waste manifests are used when transporting hazardous waste off- site.

6. Upon the effective date of the Order, Respondent BIGI shall ensure that hazardous waste is sent only to treatment, storage, or disposal facilities which have properly notified as such.

7. Within thirty (30) days of the effective date of the Order, Respondent PWI shall submit to this office documentation concerning the disposal of those wastes addressed in paragraph 1g. of the Findings of Violation. In addition, upon the effective date of the Order, Respondent PWI shall store hazardous waste for no greater than ten (10) days. If Respondent PWI stores hazardous waste for greater than ten (10) days, Respondent PWI agrees to comply with the applicable sections of 40 CFR Parts 264, 265, 268, and 270.

    8.    Upon the effective date of the Order, Respondent PWI shall accept for transportation only those hazardous wastes accompanied by a hazardous waste manifest.

    9.    Unless the Order indicates otherwise, all submittals required by this Commissioner's Order shall be sent to:

        Brenda Lepter
        Office of Enforcement
        Indiana Department of Environmental Management
        100 North Senate Avenue
        P.O. Box 6015
        Indianapolis, Indiana 46206-6015

10. Respondent BIGI shall pay a civil penalty of $22,750 and Respondent PWI shall pay a civil penalty of $25,250 for violation of 329 IAC 3.1 and IC 13-30-2-1(3). The penalty amounts shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the effective date of this Order.

11. Civil 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 North Senate Avenue
        P.O. Box 7060
        Indianapolis, Indiana 46207-7060

12. This Order shall apply to and be binding upon the Respondents, their officers, directors, principals, agents, successors, subsidiaries, and assigns.

13. Respondent BIGI and Respondent PWI shall provide a copy of this Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents shall ensure that all contractors, firms, and other persons performing work under this Order comply with the terms of the Order.

EFFECTIVE DATE OF ORDER

Pursuant to IC 13-30-3-5, this Order takes effect twenty (20) days following receipt unless you request review of this Order, before the twentieth day after receipt, by filing a written request for review with the Office of Environmental Adjudication, and serving a copy of the request for review upon the Commissioner of the Indiana Department of Environmental Management. Pursuant to IC 4-21.5-3-7, you may request that the Office of Environmental Adjudication conduct a hearing to review this Order, under IC 4-21.5, in its entirety, or you may limit your request for review to specific findings of fact and/or orders contained in this Order. Requests for review must be submitted to the Office of Environmental Adjudication and the Commissioner of the Indiana Department of Environmental Management at the following addresses:

Director                    Commissioner
Office of Environmental Adjudication    Indiana Dept. of Environmental Management
ISTA Building                Indiana Government Center North
150 W. Market Street                100 N. Senate
Suite 618                    P.O. Box 6015
Indianapolis, Indiana 46204            Indianapolis, Indiana 46206-6015

Failure to properly submit a request for review, before the twentieth day following

receipt of this Order of the Commissioner, waives your right to administrative review of this Order pursuant to IC 4-21.5-3-7 and your right to judicial review of the Order pursuant to IC 4- 21.5-5-4. The request for review must contain the following information:

A statement of facts demonstrating that:

a. You are the person to whom this Order is specifically directed;

b. You are aggrieved or adversely affected by this Order; or

c. You are entitled to review by law.

    The following information should be included in order to expedite review by the Office of Environmental Adjudication:

    Identification of the cause number of this Order, the specific findings of fact and/or orders to be reviewed, and the legal basis for your challenge to this Order. In addition, your request for review should include the name, address, and phone number of the entity or individual to whom this Order is specifically directed. If you have procedural or scheduling questions regarding your request for review you may contact the Office of Environmental Adjudication at (317) 232-8591.

DATED AT INDIANAPOLIS, INDIANA, THIS
______DAY OF _____________ 1998.

                    Signed on 9/14/98
                    __________________________
                    John M. Hamilton, Commissioner

cc:     Marion County Health Department
    Monroe County Health Department
    Ms. Elizabeth Zlatos
    Mr. Bruce Kizer
    Ms. Sharon Hilmes, Baker and Daniels
    Ms. Nancy Johnston
    http://www.ai.org/idem
    File 1B2

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Converted by Andrew Scriven