STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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Complainant,

 

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)

 

 

v.

 

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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:

Department of Environmental Management

 

 

 

By: _________________________

By:  _________________________

 

Linda L. McClure, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: __________________

Date: _______________________

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

By: ________________________

 

 

 

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

______

DAY OF

________________________, 20_____.

 

 

For the Commissioner:

 

 

 

Signed on 1/10/2020

 

Peggy Dorsey,

 

Assistant Commissioner

 

Office of Land Quality