STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
MARION |
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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.
2019-26460-H |
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ETA FABRICATION, Inc., |
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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 ETA Fabrication, Inc.
(“Respondent”), which owns/operates the facility located at 10605 East Baseline
Road, in Avilla, Noble County, Indiana (“Site”).
3.
Respondent is a custom metal fabricator that
primarily welds and paints metal parts.
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:
ETA
Fabrication, Inc. |
Tracy
A. Miller, Registered Agent |
Attn:
Jamison M. Thompson, President |
for
ETA Fabrication, Inc. |
2481
South Menges Road |
10605
East Baseline Road |
Pleasant
Lake, IN 46779 |
Avilla,
IN 46710 |
6.
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.
7.
During
an investigation including an inspection on August 7, 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 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 2017 and 2018.
On January 13, 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 2017 and 2018. Respondent failed to submit an annual manifest report for
2017 and 2018.
On January 15, 2020, Respondent
submitted the 2017 and 2018 annual manifest report to IDEM.
8.
IDEM developed annual manifest reporting forms
called the ID Form and the Form OS.
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.
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 |
3.
Respondent is assessed and agrees to pay a
civil penalty of Nine Thousand Dollars ($9,000). 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 L.
McClure, Chief |
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Land 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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________________________, 20_____. |
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For the Commissioner: |
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Signed 01/28/20 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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