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. 2019-26455-H |
|||
|
|
) |
|
||||
UNITED
COATINGS TECHNOLOGIES INC., |
|
) |
|
||||
|
|
) |
|
||||
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 United Coatings Technologies Inc.
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. INR000127126, located at 1011
South Main Street, in South Bend, St. Joseph 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”) via Certified Mail to:
United
Coatings Technologies Inc. |
Attn:
Mark Huffer, President and Registered Agent |
1011
South Main Street |
South
Bend, IN 46601 |
5.
Respondent notified EPA of Conditionally Exempt
Small Quantity Generator activities on August 14, 2009.
6.
Respondent is a paints and coatings supplier.
7.
During
an investigation including an inspection on September 3, 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 small quantity generator of hazardous waste during the
years 2018 and 2019.
On February 25, 2020, Respondent
submitted the notification for hazardous waste generator activities to IDEM.
b.
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.
Respondent changed generator status from
a conditionally exempt small quantity generator of hazardous waste to a small
quantity generator of hazardous waste during the years 2018 and 2019. Respondent
failed to submit an annual manifest report for 2018.
On February 25, 2020, Respondent submitted
the 2018 annual manifest report to IDEM.
c.
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 twenty-four (24) 5-gallon containers of D001/D035 next to the distillation
unit with accumulation start dates.
d.
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 twenty-four (24) 5-gallon containers of D001/D035 next to the distillation
unit with the words "Hazardous Waste."
8.
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.
Respondent shall comply with the statute and rules
listed in the findings of fact above.
3.
Within
thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR
262.34(d)(4) referencing 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that
containers holding hazardous waste are clearly marked with accumulation start
dates.
4.
Within
thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR
262.34(d)(4) referencing 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that
containers holding hazardous waste are clearly labeled or marked with the words
“Hazardous Waste.”
5.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise
in writing, 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 |
6.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Three
Thousand Four Hundred Dollars ($3,400). 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.”
7.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall
pay stipulated penalties in the following amounts:
Paragraph |
Stipulated Penalty |
Order
paragraph 3 |
$100
per week |
Order
paragraph 4 |
$100
per week |
8.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondent receives written notice that
Complainant has determined a stipulated penalty is due; the thirtieth 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 a
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.
9.
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 |
10.
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 9, above.
11.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
12.
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.
13.
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.
14.
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.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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
3/9/20______ |
|||
|
Peggy Dorsey, Assistant Commissioner |
|||
|
Office of Land Quality |
|||