STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2019-26343-H
					)
MODERN DISTRIBUTING CORPORATION,					)
					)
Respondent.					)

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 IC 13-13-1-1.

2. Respondent is Modern Distributing Corporation (“Respondent”), which owns/operates the company located at 6424 South 3^rd Line Road, in Kingsbury, La Porte 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 October 9, 2019 via Certified Mail to:

Kurt Casas, President and Registered Agent

Modern Distributing Corporation

6424 South 3^rd Line Road

Kingsbury, IN 46345

5. Respondent blends solvents to produce various lacquer thinners and other solvents for the automotive refinishing industry.

6. At the time of the inspection, Respondent had not notified the U.S. EPA or IDEM of hazardous waste activities but was operating as a small quantity generator.

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 July 16, 2019 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility shall notify the commissioner of its hazardous waste activity on the approved forms.

As noted during the inspection, Respondent failed to notify the Commissioner of hazardous waste SQG activities. On January 2, 2018, Respondent shipped twenty (20) 55-gallon drums of D001, F003, and F005 hazardous waste to Tradebe Treatment and Recycling LLC (“Tradebe”), a permitted RCRA Part B Treatment, Storage, Disposal (TSD) Facility. On March 25, 2018, Respondent shipped twenty (20) 55-gallon drums of D001, F003, and F005 hazardous waste to Tradebe. Additionally, sometime in 2018, Respondent shipped 5,200 pounds of D001, F003, and F005 hazardous waste to Tradebe. On January 3, 2019, Respondent shipped nine (9) 55-gallon drums of F001, F003, and F005 hazardous waste to Tradebe.

Subsequent to the inspection, Respondent submitted notification of its hazardous waste activity on the approved forms.

b. Pursuant to 329 IAC 3.1-1-11(c), any person who transports, or offers for transportation, a hazardous waste must first obtain an identification number issued by the U.S. EPA.

Subsequent to the inspection, Respondent was issued U.S. EPA identification number INR000147256.

c. Pursuant to IC 13-22-4-3.1(b), a hazardous waste small quantity generator (SQG), i.e., a person that generates, in any one or more calendar months of a calendar year:

a) more than one hundred (100) kilograms but less than one thousand (1,000) kilograms of hazardous waste;

b) less than one (1) kilogram of acute hazardous waste; or

c) less than one hundred (100) kilograms of material from the cleanup spillage of acute hazardous waste; or

accumulates at least one thousand (1,000) kilograms of hazardous waste or less than one (1) kilogram of acute hazardous waste shall, before March 1 of each year, submit to the department on forms provided by the department, a report that summarizes the person’s hazardous waste shipments during the previous calendar year.

Subsequent to the inspection, Respondent submitted a 2018 annual manifest report.

d. Pursuant to 40 CFR 262.23(a)(3) and 40 CFR 262.40(a), the generator must retain copies of hazardous waste manifests for a period of three (3) years from the date of receipt of the hazardous waste by a designated facility.

As noted during the inspection, Respondent failed to retain a copy of hazardous waste manifest for the 2018 shipment of 5,200 pounds of D001, F003, and F005 hazardous waste. Additionally, Respondent failed to retain the signed off Designated Facility to Generator copies for manifests #019526018JJK and #018005245JJK as required.

Respondent submitted fully signed Designated Facility to Generator copies of hazardous waste manifests #019526018JJK and #018005245JJK, and the fully signed Designated Facility to Generator copy of manifest #018899498JJK for the shipment of 5,200 pounds of D001, F003, and F005 hazardous waste that occurred on July 23, 2018.

9. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Four Hundred Seventy-Six Dollars ($476). This penalty reflects a significant reduction from the original proposed civil penalty based upon evidence submitted to IDEM by Respondent which adequately demonstrated Respondent’s inability to pay the original proposed civil penalty. Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.”

3. The civil penalty is 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

4. 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 3, above.

5. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

6. This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

7. No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

8. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

9. 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.

10. 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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

11. 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.

12. 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 violations specified in the NOV.

13. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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[s] may incur as a result of such communications with the U.S. EPA or any other agency or entity.

14. 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 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 3/18/2020______
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality