STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2019-26058-H |
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WESSELS COMPANY, |
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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 Indiana Code (“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 Wessels
Company (“Respondent”), which owns/operates the company with United States
Environmental Protection Agency (“EPA”) ID No. INR000005553, located at 101
Tank Street, in Greenwood, Johnson 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”) on August 5, 2019 via Certified Mail to:
James
Fuller, President and Registered Agent |
Wessels Company |
101 Tank
Street |
Greenwood,
IN 46143 |
5.
Respondent notified EPA of Small Quantity Generator
activities on May 4, 2012.
6.
Respondent manufactures various sized pressure
vessels (tanks) for industrial and commercial fluid control operations.
Manufacturing activities include: blasting, painting, welding, and cutting.
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 December 6, 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 determination on the contents of eight
(8) 55-gallon containers, which were solid wastes generated by Respondent. One
of the eight (8) 55-gallon containers was labeled as hazardous waste, but was
claimed during the inspection to be nonhazardous waste. Additionally,
Respondent did not make a waste determination on approximately twenty-three
(23) 1-gallon partially filled containers, four (4) 55-gallon satellite
accumulation containers, two (2) 2-gallon satellite accumulation containers,
and uncontained [Methyl Ethyl Ketone (“MEK”)] solvent-contaminated rags, which
were solid wastes generated by Respondent.
Subsequent to the inspection, Respondent
provided to IDEM a copy of manifest #019718592JJK showing the containers of waste
were shipped on December 14, 2018 to a RCRA Part B permitted Treatment,
Storage, Disposal Facility as D001, F003, F005, and D035 waste paint related
material. Additionally, Respondent informed IDEM a proper waste determination
was conducted on the uncontained rags. The rags were used to wipe off water or
debris before and after bead blasting and do not contain hazardous waste
residue, and therefore are nonhazardous.
b.
Pursuant to 40 CFR 262.34(f), a generator who
generates greater than 100 kilograms but less than 1000 kilograms of hazardous
waste in a calendar month and who accumulates hazardous waste for more than 180
days is an operator of a storage facility and is subject to the requirements of
40 CFR Part 264 and the permit requirements of 40 CFR Part 270 unless he has
been granted an extension to the 180 day period.
As noted
during the inspection, Respondent stored two 55-gallon containers of D001, F003, F005, and D035 hazardous waste
on-site for greater than 180 days without complying with 40 CFR Part 264 and 40
CFR Part 270. The containers were dated November 7, 2017 and November 1, 2017.
Subsequent to the inspection, Respondent
informed IDEM the containers were incorrectly labeled and new labels were
placed on the containers.
c. Pursuant to IC 13-30-2-1(10), a person
may not commence or engage in the operation of a hazardous waste facility
without having first obtained a permit from the department.
As noted during the inspection,
Respondent operated a hazardous waste facility without having first obtained a
permit from the department.
d. Pursuant to 40 CFR 270.1(c), a permit
is required for the treatment, storage and disposal of any hazardous waste as
identified or listed in 40 CFR Part 261.
As noted during the inspection, Respondent
stored hazardous waste identified or listed in 40 CFR Part 261 without a
permit.
e. Pursuant to 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a), a container holding
hazardous waste must always be closed during storage, except when it is
necessary to add or remove waste.
As noted during the inspection,
Respondent did not store the following containers closed: one (1) cardboard
55-gallon satellite accumulation container of hazardous waste “MEK”
solvent-contaminated rags near Paint Line 1, one (1) steel 55-gallon satellite
accumulation container of liquid hazardous waste between Paint Lines 1 and 3,
and two (2) 55-gallon satellite containers located at Paint Line 3. The
containers near Paint Lines 1 and 3 were missing lids. The lids on top of two
(2) steel 55-gallon satellite containers located at Paint Line 3 were not
latched closed.
Subsequent to the inspection, Respondent
informed IDEM the one cardboard 55-gallon satellite accumulation container of
rags contained clean unused rags. The container been labeled with the words
“Clean Rags”.
f. 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
deterioration caused by corrosion or other factors.
As noted during the inspection,
Respondent failed to conduct weekly inspections of the less 180-day hazardous
waste storage area and satellite accumulation areas.
g.
Pursuant to 40 CFR 262.34(c)(1)(ii), a
generator may accumulate as much as 55 gallons of hazardous waste in containers
at or near the point of generation without a permit and without complying with
40 CFR 262.34(a), provided that the containers are marked with either the words
"Hazardous Waste" or with other words describing the contents.
As noted during the inspection,
Respondent accumulated hazardous waste in containers at or near the point of
generation without a permit and did not properly mark two (2) satellite
accumulation containers located at Paint Line 3 and four (4) satellite
accumulation containers at Paint Line 1 with either the words “Hazardous Waste”
or with other words describing the contents.
h. Pursuant to 40 CFR 262.34(c)(2), a
generator who accumulates hazardous waste in excess of the amounts listed in 40
CFR 262.34(c)(1) at or near any point of generation must, with respect to that
amount of excess waste, comply within three days with 40 CFR 262.34(a). During
the three day period the generator must continue to comply with paragraphs (c)(1)(i) and (ii) of this section.
The generator must mark the container holding the excess accumulation of
hazardous waste with the date the excess amount began accumulating.
As noted during the inspection,
Respondent accumulated near the point of generation of Paint Line 1 more than
55 gallons of D001, D035, F003, and F005 hazardous waste solids (MEK solvent-contaminated
rags) in (1) one 55-gallon cardboard container and one (1) 2-gallon can without
meeting the applicable requirements. Additionally, at the point of generation of
Paint Line 1 Respondent accumulated liquid hazardous waste (D001, D035, F003,
and F005) in one (1) 55-gallon container and one (1) 2-gallon container of MEK
solvent-contaminated rags.
Subsequent to the inspection, Respondent
informed IDEM the 55-gallon cardboard container of hazardous waste solvent rags
contained unused rags.
i. 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 eight (8) 55-gallon hazardous waste containers in the less than
180-day hazardous waste storage area with accumulation start dates.
Subsequent to the inspection, Respondent
informed IDEM the less than 180-day hazardous waste containers were properly
marked with accumulation start dates the same day as the inspection or by the
next day. This violation is subject to field verification.
j. 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 or label eight (8) 55-gallon hazardous waste containers in the less than
180-day hazardous waste storage area located outside of the building with the
words “Hazardous Waste”.
Subsequent to the inspection, Respondent
informed IDEM the less than 180-day hazardous waste containers were properly
labeled with the words “Hazardous Waste” that same day as the inspection or by
the next day. This violation is subject to field verification.
k. Pursuant to 40 CFR
262.34(d)(5)(ii), the generator must post the following information next to the telephone: (1) the name and phone
number of the emergency coordinator; (2) location of fire extinguishers and
spill control material and, if present, fire alarm; (3) the telephone number of
the fire department, unless the facility has a direct alarm.
As noted during the inspection,
Respondent failed to post the required information next to the telephone.
Subsequent to the inspection, Respondent
informed IDEM the required information is posted in the supervisor office which
is always unlocked. Additionally, the required information is also posted near
the facility’s time clock. This violation is subject to field verification.
l.
Pursuant to 40 CFR 262.34(d)(5)(iii),
a small quantity generator must ensure that all employees are thoroughly
familiar with proper waste handling and emergency procedures, relevant to their
responsibilities during normal facility operations and emergencies.
As noted during the inspection,
Respondent did not provide training to employees in the proper management of
hazardous waste and associated emergency procedures.
Subsequent to the inspection, Respondent
informed IDEM that employees have been trained in the proper management of
hazardous waste and associated emergency procedures.
m.
Pursuant to 40 CFR 273.18 and 329 IAC 3.1-16, a
small quantity handler of universal waste is prohibited from sending or taking
universal waste to a place other than another universal waste handler, a
destination facility, or a foreign destination.
Based on the information gathered by IDEM
during the inspection, Respondent sent mercury-containing lamps to transporters
and disposal facilities which have not received an EPA ID number or permit.
Subsequent to the inspection, Respondent
informed IDEM that mercury-containing lamps are sent to a recycling facility.
n.
Pursuant to IC 13-30-2-1(1), no person shall
discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow
any contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources, into the environment in any
form that causes or would cause pollution that violates or would violate 329
IAC 10-4-2, a rule adopted by the board under the environmental management
laws.
As noted during the inspection,
Respondent caused and/or allowed rags contaminated with MEK solvent to be
disposed of at the Site in a manner which created a threat to human health or
the environment. An uncontained pile of MEK contaminated rags were observed on
a spill containment pallet located outside of the less than 180-day hazardous
waste storage area and on the ground surrounding the pallet. Additionally,
Respondent stored shot blast, a solid waste, in an uncovered roll-off box
allowing the shot blast to be released onto the ground as a result of rain
water mixing with the waste and draining from the container.
Subsequent to the inspection, Respondent
informed IDEM the uncontained rags are non-hazardous. The rags were used to
wipe off water or debris before and after bead blasting and do not contain MEK
residue.
o.
Pursuant to 329 IAC 10-4-2, no person shall
cause or allow the storage, containment, processing, or disposal of solid waste
in a manner which creates a threat to human health or the environment,
including the creating of a fire hazard, vector attraction, air or water
pollution, or other contamination.
As noted during the record review and
inspection, Respondent caused and/or allowed MEK solvent-contaminated rags to
be disposed at the Site in a manner which created a threat to human health or
the environment. An uncontained pile of MEK solvent-contaminated rags were
observed on a spill containment pallet located outside of the less than 180-day
hazardous waste storage area. Additionally, Respondent stored shot blast, a
solid waste, in an uncovered roll-off box allowing the shot blast to be
released onto the ground as a result of rain water mixing with the waste and
draining from the container.
Subsequent to the inspection, Respondent
informed IDEM the uncontained rags are non-hazardous. The rags are used to wipe
off water or debris before and after bead blasting and do not contain hazardous
waste residue. Additionally, Respondent informed IDEM the cover to the roll-off
box of shot blast has been placed on the top of the box. This violation is
subject to field verification.
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, Respondent shall
comply with 40 CFR 262.11. Specifically, Respondent shall conduct proper waste
determinations on all wastestreams generated at the
facility.
4.
Upon the Effective Date, Respondent shall comply
with 40 CFR 262.34(f), IC 13-30-2-1(10), and 40 CFR 270.1(c). Specifically,
Respondent shall ensure that as long as it remains a small quantity generator of hazardous waste, it
does not accumulate hazardous waste for more than 180 days without a permit or
without complying with 40 CFR 264.
5.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(d)(2) and 40 CFR
262.34(c)(1)(i) referencing 40 CFR 265.173(a).
Specifically, Respondent shall keep satellite accumulation and less than 180-day
containers holding hazardous waste closed during storage, except when it is
necessary to add or remove waste.
6.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(d)(2) referencing 40 CFR
265.174. Specifically, Respondent shall inspect areas where containers are
stored, at least weekly, looking for leaks and deterioration caused by
corrosion or other factors. Respondent shall maintain copies of weekly
inspection records on-site for period of one (1) year from the Effective Date.
7.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(c)(1) and (2). Specifically,
Respondent shall not accumulate more than 55-gallons of hazardous waste from
the same point of generation at or near the point of generation and under
control of the operator without complying with the requirements of 40 CFR
262.34(c)(2).
8.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(c)(1)(ii). Specifically,
Respondent shall mark containers of hazardous waste or near the point of
generation with either the words “Hazardous Waste” or with other words
describing the contents.
9.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(d)(4) referencing 40 CFR
262.34(a)(2). Specifically, Respondent shall clearly mark the date when the
accumulation begins on each container accumulating hazardous waste.
10.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(d)(4) referencing 40 CFR
262.34(a)(3). Specifically, Respondent shall, while being accumulated on-site,
mark each container and tank holding hazardous waste with the words “Hazardous
Waste.”
11.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(d)(5)(ii). Specifically, Respondent shall ensure
emergency contact information showing the name and phone number of the
emergency coordinator; location of fire extinguishers and spill control
material and if present, fire alarms; and the telephone number of the fire
department, unless the facility has a direct alarm is posted next to the
telephone.
12.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 40 CFR 262.34(d)(5)(iii).
Specifically, Respondent shall provide IDEM with written documentation that
shows employees are thoroughly familiar with proper waste handling and
emergency procedures, relevant to their responsibilities during normal facility
operations and emergencies.
13.
Upon the Effective Date, Respondent shall
comply with 40 CFR 273.18 and 329 IAC 3.1-16. Specifically, Respondent shall
send mercury-containing lamps to transporters and disposal facilities which
have received an EPA ID number or permit.
14.
Upon the Effective Date, Respondent shall
comply with IC 13-30-2-1(1) and 329 IAC 10-4-2. Specifically, Respondent shall
ensure used rags are placed inside containers and the cover of the roll-off box
of shot blast is closed.
15.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Jennifer Reno, Enforcement Case
Manager |
Office of Land Quality |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
16.
Respondent is assessed and agrees to pay a
civil penalty of Seventeen Thousand Eight Hundred Fifty Dollars ($17,800). 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.”
17.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall
pay a stipulated penalty in the following amount:
Paragraph |
Penalty |
Order
paragraph #12 |
$ 250 per
week late |
18.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date.” Complainant may notify Respondent at any time that a
stipulated penalty is due. Failure to notify Respondent in writing in a timely
manner of stipulated penalty assessment shall not waive Complainant’s right to
collect such stipulated penalty or preclude Complainant from seeking additional
relief against Respondent for violation of this Agreed Order. Neither
assessment nor payment of stipulated penalties shall preclude Complainant from
seeking additional relief against Respondent for a violation of this Agreed
Order; such additional relief includes any remedies or sanctions available
pursuant to Indiana law, including, but not limited to, civil penalties
pursuant to IC 13-30-4.
19.
Civil and stipulated 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:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN,
Room 1340 |
100
North Senate Avenue |
Indianapolis, IN 46204 |
20.
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 19, above.
21.
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.
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 this Agreed Order did not
contain the invalid terms.
23.
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.
24.
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.
25.
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.
26.
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.
27.
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.
28.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Linda L.
McClure, Section Chief |
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Enforcement
Section |
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
THIS |
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DAY OF |
________________________, 20_____. |
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For the Commissioner: |
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Signed on 1/10/2020 |
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Peggy Dorsey, |
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Assistant Commissioner |
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Office of Land Quality |
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