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-13512
v. )
)
BIDDLE PRECISION COMPONENTS )
)
)
)
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 the terms of this Agreed Order
does not constitute an admission of any violation contained herein or in the Notice of Violation
issued on September 23, 1997.
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 Biddle Precision Components ("Respondent"), who operates a
place of business located at 701 South Main Street in Sheridan, Indiana.
Respondent notified the U.S. EPA of hazardous waste activities as a
treatment/storage/disposal facility on November 19, 1980 and amended the
notification in 1988 to indicate that Respondent was only a generator of
hazardous waste. Respondent was assigned the U.S. EPA No. IND 006032262.
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:
Dale H. McCullough, President and Resident Agent
Biddle Precision Components
701 South Main Street
Sheridan, Indiana 46069
5. Respondent is a manufacturing facility which performs machining and finishing
operations on bar steel, stainless steel, and copper and aluminum to produce small
fasteners and other parts..
6. The IDEM contends the following violations were in existence or observed by the
Office of Solid and Hazardous Waste Management (OSHWM) of the IDEM
during an inspection of the facility on December 16, 1996. In addition to these
contentions of IDEM, the Findings of Fact contained herein include subsequent
information submitted to the IDEM by Respondent on April 15 and November
25, 1997.
a. Pursuant to 329 IAC 3.1-1-10 and 40 CFR 263.11, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility shall notify the Commissioner of the IDEM of such activities on forms provided by the Commissioner. A transporter shall not transport hazardous wastes without having received an EPA identification number from the U.S. EPA. Based on information gathered by the IDEM, Respondent operated as a transporter without notifying the Commissioner of the IDEM of such activity and without having received an EPA identification number from the U.S. EPA. Respondent transported F006 waste from the Main Street site of generation to a building off-site, located approximately ½ mile away. Respondent contends that construction at its Main Street plant temporarily made Respondent's accumulation area unavailable for the F006 waste and that no more than three (3) bags of F006 waste were conveyed
to the off-site building. Respondent further contends that the off-
site building, which it owns, is less than 1/10 of a mile (490 feet)
from Respondent's Main Street property. Respondent contends
that at all times during movement, the bags of F006 waste were
under the control of Respondent's personnel trained in hazardous
waste. Respondent further contends that no releases or mishaps
occurred and that it did not intentionally violate RCRA.
b. Pursuant to 40 CFR 264.11, 40 CFR 264.1(b), and IC 13-30-2-
1(10), no person may commence or engage in the operation of a
hazardous waste facility without having first obtained a permit
from the IDEM and without having first received an identification
number from the U.S. EPA. The owner or operator of a hazardous
waste facility must comply with the requirements of 40 CFR, Part
264. Based on information gathered by the IDEM, Respondent
engaged in the operation of a hazardous waste facility by accepting
F006 waste, generated at the Main Street facility, for storage at a
building off-site, which was unpermitted for the storage of
hazardous waste. Respondent has not received a U.S. EPA
identification number for the property used to store the F006
waste, located approximately ½ mile away from where the waste
was generated. Additionally, Respondent failed to comply with
the requirements of 40 CFR, Part 264. Respondent contends the
conditions under which the F006 waste at the off-site building was
managed were essentially identical to the conditions under which
the waste would have been managed at the Main Street plant.
After the IDEM inspector advised Respondent of the need to
convey the waste back to the Main Street plant, the Respondent
complied. Respondent contends that it did not intentionally violate
RCRA.
c. Pursuant to 40 CFR 262.12(c), a generator may only offer his
hazardous waste to transporters and to treatment, storage, or
disposal facilities that have received an EPA identification
number. Based on information gathered by the IDEM, Respondent
failed to offer hazardous waste to a transporter that had received an
identification number and failed to offer hazardous waste to a
treatment, storage, or disposal facility that had received an EPA
identification number. Respondent transported its own hazardous
waste for storage at its own facility off-site.
d. Pursuant to 329 IAC 3.1-7-3, IC 13-30-2-1(12), and 40 CFR 262.20, a generator who transports, or offers for transport,
hazardous waste for off-site treatment, storage, disposal, or
recovery must complete the manifest adopted by the Indiana Solid
Waste Management Board (the Board) on EPA Form 8700-22.
Based on information gathered by the IDEM, Respondent failed to
complete a manifest when it transported F006 waste to a building
located approximately ½ mile away from the site of generation.
Respondent contends that manifests were not necessary since it did
not relinquish control of the hazardous waste and that it did
properly complete a manifest when the F006 waste was ultimately
given to a third party transporter for treatment and disposal.
e. 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 Part 268. Based on
information gathered by the IDEM, Respondent failed to perform a
hazardous waste determination and failed to determine if the waste
is restricted from land disposal for three (3) 55-gallon drums of
copper plating bath that were accidentally contaminated with iron
and for the waste 142-solvent. Respondent subsequently submitted
information to the IDEM documenting that the used copper plating
bath was determined to be non-hazardous. However, the Material
Safety Data Sheet that was provided for the 142-solvent hazardous
waste determination was inadequate, in that it did not address the
142-solvent after it had been spent.
f. Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(2), a generator who generates greater than 100 kilograms but less than 1000 kilograms of hazardous waste in a calendar month may accumulate hazardous waste on-site for 180 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 the IDEM, Respondent failed to mark the start of accumulation date on two (2) 55-gallon drums of waste nitric acid, located in the south end of the building, and for two (2) containers of waste 142-solvent, located in the distillation area. Respondent contends that the waste which was represented to the IDEM as being hazardous nitric acid waste at the time of the inspection actually is used as a substitute for a commercial product in the wastewater treatment system per 40 CFR 261.2(e)(1)(ii). On February 10, 1998, Respondent
submitted documentation to the IDEM adequately demonstrating
that it meets the terms of the exclusion.
g. Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR
262.34(a)(3), a generator who generates greater than 100
kilograms but less than 1000 kilograms of hazardous waste in a
calendar month may accumulate hazardous waste on-site for 180
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 the IDEM, Respondent
failed to label or clearly mark one (1) cubic yard bag of F006
waste and two (2) 55-gallon drums of waste nitric acid, all located
in the south end of the building, with the words, "Hazardous
Waste." Respondent properly labeled the bag of F006 waste at the
time of the inspection and contends that the waste nitric acid is
used as a substitute for a commercial product in the wastewater
treatment system. On February 10, 1998, Respondent submitted
documentation to the IDEM adequately demonstrating that it meets
the terms of the exclusion.
h. Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR 265.32(c),
all facilities must be equipped with portable fire extinguishers, fire
control equipment, spill control equipment, and decontamination
equipment. Based on information gathered by the IDEM,
Respondent failed to provide the required spill control equipment
at the distillation area.
i. Pursuant to 40 CFR 262.34(d)(2) referencing 40 CFR 265.173(a),
a container holding hazardous waste must always be kept closed
during storage, except when it is necessary to add or remove
waste. Based on information gathered by the IDEM, Respondent
stored two (2) drums of D002/D007 waste and one (1) drum of
waste 142-solvent waste open. Respondent closed the open drum
of waste 142-solvent at the time of the inspection.
j. Pursuant to 40 CFR 262.34(d)(2) referencing 40 CFR 265.174, a generator must inspect areas where containers are stored, at least weekly, looking for leaks and for deterioration caused by corrosion or other factors. Based on information gathered by the IDEM, Respondent failed to conduct weekly inspections at the container storage areas. Respondent contends that it has commenced weekly inspections of the hazardous waste container storage areas and has
provided documentation to the IDEM to this effect.
k. Pursuant to 40 CFR 262.34(d)(3) referencing 40 CFR 265.201,
generators of between 100 and 1000 kilograms per month
accumulating hazardous waste in tanks must inspect, where
present, the following:
(1) Discharge control equipment at least once each operating
day, to ensure that it is in good working order;
(2) Data gathered from monitoring equipment at least once
each operating day to ensure that the tank is being operated
according to its design;
(3) The level of waste in the tank at least once each operating
day to ensure compliance with 40 CFR 265.201(b)(3);
(4) The construction materials of the tank at least weekly to
detect corrosion of leaking of fixtures or seams; and
(5) The construction materials of, and the area immediately
surrounding, discharge confinement structures at least
weekly to detect erosion or obvious signs of leakage.
Based on information gathered by the IDEM, Respondent failed to
conduct the required inspections of the D002/D007 waste tank
system.
l. Pursuant to 40 CFR 262.34(c)(1), a generator may accumulate as
much as fifty-five (55) gallons of hazardous waste or one 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 the
IDEM, Respondent failed to mark one (1) container of waste 142-
solvent located at the south door satellite accumulation area with
the words "Hazardous Waste" or with other words that identified
the contents of the container.
7. In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed 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 the Order, Respondent shall offer its hazardous waste
only to transporters and to permitted treatment, storage, or disposal facilities that
have obtained a U.S. EPA identification number, per 40 CFR 262.12(c).
3. Upon the Effective Date of the Order, Respondent shall ensure that a manifest is
completed for each shipment of hazardous waste that is offered for transport from
the facility, per 329 IAC 3.1-7-3, IC 13-30-2-1(12), and 40 CFR 262.20.
4. Within thirty (30) days of the Effective Date of the Order, Respondent shall
submit to the IDEM for approval, a closure plan for the area where hazardous
waste was stored off-site, in accordance with the provisions of 40 CFR 264,
Subpart G.
5. Upon notice of approval of the closure plan by the IDEM, Respondent shall
implement the approved plan in accordance with the time frames contained
therein. IDEM's final approval of the closure plan is subject to administrative
and judicial review under IC 4-21.5. Stipulated penalties that may be due under
Order 16 for failure to implement the closure plan shall not be collected by IDEM
for the period of any administrative or judicial review of the closure plan.
6. Within thirty (30) days of Respondent's receipt of notice of IDEM's approval of
the closure plan, Respondent shall provide financial assurance for closure,
pursuant to 329 IAC 3.1-15-4.
7. Within thirty (30) days of the Effective Date of the Order, Respondent shall make
a proper hazardous waste determination and shall determine if the waste is
exempt from land disposal under 40 CFR 268 for the waste 142-solvent, per 40
CFR 262.11 and 40 CFR 268.7.
8. Upon the Effective Date of the Order, Respondent shall ensure that it marks each
container of hazardous waste in less than 180-day accumulation areas with the
date upon which each period of accumulation begins, per 40 CFR 262.34(a)(2).
9. Upon the Effective Date of the Order, Respondent shall ensure that it marks each
container and tank of hazardous waste at the facility with the words, "Hazardous
Waste", per 40 CFR 262.34(a)(3) and 40 CFR 262.34(c).
10. Within thirty (30) days of the Effective Date of the Order, Respondent shall
provide documentation to the IDEM that it has provided the required spill control
equipment at the distillation area, per 40 CFR 265.32(c).
11. Upon the Effective Date of the Order, Respondent shall ensure that all containers
holding hazardous waste at the facility are kept closed during storage, except
when it is necessary to add or remove waste, per 40 CFR 265.173(a).
12. Upon the Effective Date of the Order, Respondent shall ensure that weekly
inspections are conducted at all container storage areas, per 40 CFR 265.174.
13. Upon the Effective Date of the Order, if hazardous waste is ever stored in tanks at
the facility while Respondent meets the definition of a small quantity generator,
Respondent shall ensure that the required inspections of any hazardous waste
tanks are conducted per 40 CFR 265.201.
14. 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
15. Respondent is assessed a civil penalty of $20,438. Said penalty amount shall be
due and payable to the Environmental Management Special Fund in four (4)
equal payments of $5109.50 each with the first payment due within thirty (30)
days of the Effective Date of this Agreed Order and each subsequent payment due
one each in quarterly installments thereafter.
16. 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 $500 per day for each
time frames of Order #s violation.
4-7 and 10 of the Agreed Order.
17. 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.
18. "Force Majeure", for the purposes of this Agreed Order, is defined as any event
arising from causes beyond the control of the Respondent that delays or prevents
the performance of any obligation under this Agreed Order despite Respondent's
best efforts to fulfill the obligation. The requirement that the Respondent
exercise "best efforts to fulfill the obligation" includes using best efforts to
anticipate any potential force majeure event and best efforts to address the effects
of any potential force majeure event (1) as it is occurring and (2) following the
potential force majeure event, such that the delay is minimized to the greatest
extent possible. "Force Majeure" does not include financial inability to complete
the work required by this Agreed Order or increases in costs to perform the work.
The Respondent shall notify IDEM by calling within three (3) calendar days and
by writing no later than seven (7) calendar days after any event which the
Respondent contends is a force majeure. Such notification shall describe the
anticipated length of the delay, and the timetable by which these measures will be
implemented. The Respondent shall include with any notice all available
documentation supporting their claim that the delay was attributable to a force
majeure. Failure to comply with the above requirements shall preclude
Respondent from asserting any claim of force majeure for the event. The
Respondent shall have the burden of demonstrating that the event is a force
majeure. The decision of whether an event is a force majeure shall be made by
IDEM. Said decision shall be communicated to the Respondent.
If a delay is attributable to a force majeure, IDEM shall extend, in writing, the
time period for performance under this Agreed Order, by the amount of time that
is attributable to the event constituting the force majeure.
19. 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
20. In the event that the civil penalty required by paragraph 15 is not paid according
to the schedule found in paragraph 15, 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.
21. 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.
22. 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.
23. 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.
24. This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause
letter to Respondent.
TECHNICAL RECOMMENDATIONS: RESPONDENT:
Department of Environmental Management
By: ________________________ By: ________________________
Nancy L. Johnston, Chief
Hazardous Waste Section Title: ________________________
Office of Enforcement
Date: ________________________ Date: ________________________
LEGAL RECOMMENDATION:
Department of Environmental Management
By: ________________________
Loraine Seyfried
Office of Legal Counsel
Date: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT
THIS _______ DAY OF ________________ 1998.
For the Commissioner:
Signed on 6/15/98
________________________
David J. Hensel
Director
Office of Enforcement
Converted by Andrew Scriven