STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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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.
2019-26348-H |
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CURTIS DYNA-fog, ltd., |
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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 Curtis Dyna-Fog, Ltd.
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. IND006053995, located at 525
Park Street, in Westfield, Hamilton County, Indiana (“Site”).
3.
Curtis Dyna-Fog, Ltd. manufactures spraying and
fogging equipment. Respondent notified
the U.S. EPA of Conditionally Exempt Small Quantity Generator activities.
4.
IDEM has jurisdiction over the parties and the
subject matter of this action.
5.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) via Certified Mail to:
Curtis
Dyna-Fog, Ltd. |
Corporation
Service Company, Registered |
Attn: Carl Contadini, President |
Agent for
Curtis Dyna- Fog, Ltd. |
300
Bartholomew Hill Rd |
135 N.
Pennsylvania St., Ste. 1610 |
Goshen, CT
06756 |
Indianapolis,
IN 46204 |
6.
During an investigation including an inspection
on July 18, 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 a status change to hazardous
waste generator activities. Respondent
changed generator status from a conditionally exempt small quantity generator
of hazardous waste to a large quantity generator of hazardous waste in May 2018
when it generated and shipped 3,080 pounds of hazardous waste on manifests
018607803 JJK and 018607808 JJK.
On October 22, 2019, Respondent
submitted notification of a change to hazardous waste generator activities to
IDEM.
b. Pursuant to IC 13-22-4-3.1(c), an LQG,
i.e., a person that generates, in any one or more calendar months of a calendar
year:
a) more than one thousand (1,000) kilograms of hazardous waste;
b) at least one (1) kilogram of acute hazardous waste; or
c) at least one
hundred (100) kilograms of material from the cleanup spillage of acute
hazardous waste; or
accumulates at least six thousand
(6,000) kilograms of hazardous waste or at least one (1) kilogram of acute
hazardous waste shall, before March 1 of each year, submit to the department
either the biennial report required by the United States Environmental Protection
Agency (EPA) concerning the person's waste activities during the previous
calendar year, or an annual report on forms provided by the department,
that summarizes the person's hazardous waste shipments during the previous
calendar year. LQGs are required to
submit the Hazardous Waste Biennial Report required by the EPA by March 1 of
each even numbered year and the IDEM annual manifest report by March 1 of each
odd numbered year.
Respondent changed generator status from
a conditionally exempt small quantity generator of hazardous waste to a large
quantity generator of hazardous waste when it generated and shipped 3,080
pounds of hazardous waste in May 2018 on manifests 018607803 JJK and 018607808
JJK. The Respondent failed to submit a 2018
annual manifest report by March 1, 2019.
On October 22, 2019, Respondent
submitted the 2018 annual manifest report to IDEM.
7.
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. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
Debbie Chesterson, Enforcement Case
Manager |
Office of Land Quality |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
3. Respondent is assessed and agrees to
pay a civil penalty of Two Thousand Two Hundred Dollars ($2,200). 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.”
4. 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:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN,
Room 1340 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
5. 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 4, above.
6. Signatories to this Agreed Order
certify that they are fully authorized to execute this Agreed Order and legally
bind the party they represent.
7. 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.
8. 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.
9. Respondent shall ensure that all
contractors, firms, and other persons performing work under this Agreed Order
comply with the terms of this Agreed Order.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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 may incur as a result of such communications with the U.S.
EPA or any other agency or entity.
15. 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
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 |
________________________,
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For the
Commissioner: |
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Signed
11/19/19 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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