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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25548-H |
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zentis north america holding, llc, |
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Respondent. |
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AGREED ORDER
Complainant
and 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. Respondent’s entry into this Agreed Order shall not
constitute a waiver of any defense, legal or equitable, which Respondent may
have in any future administrative or judicial proceeding, except a proceeding
to enforce this order.
I.
FINDINGS OF FACT
1.
Complainant is the Commissioner (“Complainant”)
of the Indiana Department of Environmental Management (“IDEM”), a department of
the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is Zentis
North America Holding, LLC (“Respondent”), which owns/operates the facility
with United States Environmental Protection Agency (“EPA”) ID No. IND 051 947
430, located at 2050 N Oak Road, in Plymouth, Marshall County, Indiana
(“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) to:
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Thomas
Ginschel, CEO |
CT
Corporation System, Registered Agent |
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Zentis North America Holding, LLC |
Zentis North America Holding, LLC |
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2050
N Oak Road |
150
West Market Street, Suite 800 |
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Plymouth,
IN 46563 |
Indianapolis,
IN 46204 |
5.
Respondent notified EPA of Small Quantity
Generator activities.
6.
Respondent manufactures food preparations for
yogurt manufactures.
7.
329 Indiana Administrative Code (“IAC”) 3.1
incorporates certain federal hazardous waste management requirements found in
40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273,
including those identified below.
8.
During an investigation including an inspection
on August 1, 2018 conducted by a representative of IDEM, the following
violations were found:
a.
Pursuant to 40 CFR 262.11, a person who
generates a solid waste must determine if that waste is hazardous.
As noted during the inspection,
Respondent did not make hazardous waste determinations on two (2) pallets of aerosol
paint cans, paint containers, and aerosol cans which were solid wastes
generated by Respondent. Subsequent to
the inspection, Respondent determined that the aerosol cans were empty and the paint
cans and containers were either empty or contained latex paint which was
non-hazardous.
Respondent did not properly determine
whether the spent isopropyl alcohol and spent alcohol based flavorings shipped
off-site in 2016 and up to and including May 2017 to Disposal and Recycling
Technologies (“DART”) located in Detroit, Michigan was a hazardous waste.
Based on available information received
during the inspection, the spent isopropyl alcohol and spent alcohol based
flavorings were processed through DART’s Distilled Spirits Plant and was sold
as a fuel. According to 40 CFR 261.2(e)(2), solid wastes that are recycled and that are burned for
energy recovery, used to produce a fuel, or contained in fuels remain a solid
waste.
On August 21, 2018, Respondent provided
additional information regarding the exclusion of the spent isopropyl alcohol
and spent alcohol based flavorings.
Based on this information industrial ethyl alcohol is exempt per 40 CFR
261.6(a)(3).
IDEM concurs that the spent alcohol based flavorings meets this
exemption but not the spent isopropyl alcohol.
Since the spent isopropyl alcohol was
sold as a fuel, the 40 CFR 261.2(e)(2) exclusion also
does not apply and the spent isopropyl alcohol waste stream should have been
managed as a D001 hazardous waste. As of
July 2017, Respondent has been manifesting each of these waste streams to
permitted, treatment, storage and disposal facilities as a D001 hazardous
waste.
b. Pursuant to 40 CFR 262.20, a generator
who transports, or offers for transportation, hazardous waste for offsite
treatment, storage, or disposal, must prepare a manifest. A generator must
designate on the manifest one facility which is permitted to handle the waste
described on the manifest. A generator may designate an alternate facility to
handle his waste in the event that an emergency prevents delivery of the waste
to the primary designated facility.
As noted during the inspection,
Respondent offered hazardous waste for transportation for offsite treatment,
storage, or disposal without preparing a manifest. Specifically, Respondent was offering for
transport spent isopropyl alcohol (D001) to an unpermitted facility on a bill
of lading. As of July 2017, Respondent
has been manifesting this waste stream to a permitted, treatment, storage and
disposal facility as a D001 hazardous waste.
c. Pursuant to IC 13-30-2-1(12), a person
may not cause or allow the transportation of a hazardous waste without a
manifest if a manifest is required by law.
As noted during the inspection,
Respondent offered hazardous waste for transportation for offsite treatment,
storage, or disposal without preparing a manifest. Specifically, Respondent was offering for
transport spent isopropyl alcohol to an unpermitted facility on a bill of
lading. As of July 2017, Respondent has
been manifesting this waste stream to a permitted, treatment, storage and
disposal facility as a D001 hazardous waste.
d. Pursuant to IC 13-30-2-1-(11), a person
may not deliver hazardous waste to a hazardous waste facility that;
(A) is not approved;
or
(B) does not hold a
permit from the department.
As noted during the inspection, Respondent
was sending spent isopropyl alcohol (D001) to an unpermitted facility on a bill
of lading. As of July 2017, Respondent
has been manifesting this waste stream to a permitted, treatment, storage and
disposal facilities as a D001 hazardous waste.
e. Pursuant to 40 CFR 262.34(d)(4)
referencing 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste
on-site for 180 days or less without a permit, provided that the date when the accumulation
begins is clearly marked and visible for inspection on each container.
As noted during the inspection,
Respondent accumulated hazardous waste on-site, without a permit, and failed to
clearly mark hazardous waste containers with accumulation start dates. Specifically, Respondent had six (6), two (2)
gallon plastic containers of spent isopropyl alcohol stored in the hazardous
waste cage that were not marked with the accumulation start date.
Subsequent to the inspection, Respondent
re-containerized the plastic containers of the spent isopropyl alcohol into a
larger container and marked the container with the start of accumulation date.
f. Pursuant to 40 CFR 262.34(d)(4)
referencing 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste
on-site for 180 days or less without a permit, provided that, while being
accumulated on-site, each container and tank is labeled or marked clearly with
the words "Hazardous Waste."
As noted during the inspection,
Respondent accumulated hazardous waste on-site, without a permit, and failed to
mark hazardous waste containers with the words "Hazardous Waste." Specifically, Respondent had six (6), two (2)
gallon plastic containers of spent isopropyl alcohol stored in the hazardous
waste cage that were not marked with the words “Hazardous Waste.”
Subsequent to the inspection, Respondent
re-containerized the plastic containers of the spent isopropyl alcohol into a
larger container and placed the words ‘Hazardous Waste” on the container.
g. Pursuant to
40 CFR 273.14(d)(1) and 329 IAC 3.1-16-2(4), universal waste mercury-containing
equipment (i.e. each device), or a container in which the equipment is
contained, must be labeled or marked clearly with any of the following phrases:
"Universal Waste", "Mercury Containing Equipment",
"Waste Mercury-Containing Equipment", or "Used
Mercury-Containing Equipment" or other words that accurately identify
universal waste lamps.
As noted during the inspection,
Respondent had one (1) box of universal waste lamps located near the
maintenance shop that were not labeled with any of the required phrases noted
above or other words accurately identifying the universal waste lamps.
Subsequent to the inspection, the boxes
of universal waste lamps were properly labeled.
h. Pursuant to
40 CFR 273.13(c)(1), a small quantity handler of universal waste must place
universal waste in containers that are structurally sound, compatible with the
contents of the device, must lack evidence of leakage, spillage, or damage that
could cause leakage and stored closed while accumulating.
As
noted during the inspection, Respondent had two (2) boxes of universal waste
lamps located near the maintenance shop that were not stored closed while
accumulating.
Subsequent
to the inspection, the universal waste lamp boxes were closed.
9. 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 Complainant or Complainant’s
delegate, and has been received by Respondent. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondent shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Upon the Effective Date of this Agreed Order,
Respondent shall comply with 40 CFR 262.11.
Specifically, Respondent shall make a waste determination on any solid
waste generated in the future to determine if that waste is hazardous. If the waste is hazardous it shall be managed
according to the applicable regulations.
4.
Upon the Effective Date of this Agreed Order,
Respondent shall comply with 40 CFR 262.20 and IC 13-30-2-1(12). Specifically, Respondent shall ensure any
regulated hazardous waste offered for transportation is accompanied by a
uniform hazardous waste manifest designated to a permitted treatment, storage,
or disposal facility.
5.
Upon the Effective Date of this Agreed Order,
Respondent shall ensure all accumulated hazardous waste on site is clearly
marked with the start of accumulation date.
The start of accumulation date shall be visible for inspection on each
container.
6.
Upon the Effective Date of this Agreed Order,
Respondent shall ensure while hazardous waste is being accumulated on site each
container is clearly marked with the words “Hazardous Waste”.
7.
Upon the Effective Date of this Agreed Order, Respondent
shall ensure universal waste containers are properly labeled identifying the
contents and stored closed while accumulating.
8.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Christina Halloran, Enforcement Case
Manager |
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Office of Land Quality |
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Indiana Department of Environmental Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
9.
Respondent is assessed and agrees to pay a
civil penalty of Three Thousand Six Hundred Dollars ($3,600). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”.
10.
Civil penalties are payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number
of this action and shall be mailed to:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
11.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date
until the date that Respondent pays any unpaid balance. Such interest shall be
payable to the Environmental Management Special Fund, and shall be payable to
IDEM in the manner specified in Paragraph 10, above.
12.
This Agreed Order shall apply to and be binding
upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order
certify that they are fully authorized to execute this Agreed Order and legally
bind the party they represent. No change
in ownership, corporate, or partnership status of Respondent shall in any way
alter its status or responsibilities under this Agreed Order.
13.
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 this Agreed Order did not
contain the invalid terms.
14.
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.
15.
This Agreed Order is not
and shall not be interpreted to be a permit or a modification of an existing
permit. This Agreed Order, and IDEM’s review or approval of any submittal made
by Respondent pursuant to this Agreed Order, shall not in any way relieve
Respondent of its obligation to comply with the requirements of its applicable
permits or any applicable Federal or State law or regulation.
16.
Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s compliance with any aspect of this Agreed Order will result in
compliance with the provisions of any permit, order, or any applicable Federal
or State law or regulation. Additionally, IDEM or anyone acting on its behalf
shall not be held liable for any costs or penalties Respondent may incur as a
result of Respondent’s efforts to comply with this Agreed Order.
17.
Nothing in this Agreed
Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive
relief under any applicable Federal or State law or regulation, except that
IDEM may not, and hereby waives its right to, seek additional civil penalties
for the same violations specified in the NOV.
18.
Nothing in this Agreed
Order shall prevent IDEM or anyone acting on its behalf from communicating with
the EPA or any other agency or entity about any matters relating to this
enforcement action. IDEM or anyone acting
on its behalf shall not be held liable for any costs or penalties Respondent
may incur as a result of such communications with EPA or any other agency or
entity.
19.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Linda
McClure, Chief |
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Enforcement
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Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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Date: ______________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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DAY
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________________________,
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For the
Commissioner: |
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Signed
07/17/2019 By: |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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