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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No. 2019-26500-H |
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BIG DOG
ADHESIVES LLC, |
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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 IC
13-13-1-1.
2.
Respondent is Big Dog Adhesives LLC
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. INR000007708, located at 615
South 4th Street, in Elkhart, Elkhart 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:
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Big
Dog Adhesives LLC |
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Attn:
Louis Giovannini, Manager and Registered Agent |
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15230
Longford Drive |
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Granger,
IN 46530 |
5.
Respondent notified EPA of Small Quantity
Generator activities on August 2, 2018.
6.
Big Dog Adhesives LLC manufactures methacrylate
adhesives.
7.
329
Indiana Administrative Code (“IAC”) 3.1 incorporates 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 September 10, 2019 conducted by a
representative of IDEM, the following violations were found:
a. 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 eight (8) 55-gallon containers of F003/D001 hazardous waste on-site
for greater than 180 days without complying with 40 CFR Part 264 and 40 CFR
Part 270.
On January 24, 2020, Respondent provided
hazardous waste manifest 013462156 FLE to IDEM, documenting the removal of eight
(8) drums of F003/D001 from the site.
b. 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 eight (8) 55-gallon containers of F003/D001 hazardous waste
identified or listed in 40 CFR Part 261 without a permit.
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 when it accumulated and stored eight (8) 55-gallon
containers of F003/D001 hazardous waste since August 2018.
d. Pursuant to 40 CFR 268.7(a), with the
initial shipment of waste to each treatment, storage, or disposal facility, a
generator must send a one-time written notice to each facility receiving the
waste and place a copy in the file.
As noted during the inspection,
Respondent failed to provide the one-time written notice and place a copy in
the file.
Subsequent to the inspection, a copy of
the LDR Notification Form was provided by email on September 11, 2019. The form
did not contain all the required information as the manifest number was missing
from the form.
On January 24, 2020, Respondent provided
a completed LDR Notification Form.
e. 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 one (1) 55-gallon container of F003/D001 hazardous waste
in the 180-day storage area without a permit and did not properly mark
satellite accumulation containers with either the words “Hazardous Waste” or
with other words describing the contents.
On January 24, 2020, Respondent provided
photo documentation of the satellite accumulation container properly marked with
either the words “Hazardous Waste.”
f. 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 one (1) 55-gallon container of F003/D001 in the 180-day
storage area closed.
Respondent closed the one (1) 55-gallon
container of F003/D001 in the 180-day storage area at the time of the
inspection.
g. 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 180-day storage area and
the staging area.
h. 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 containers in the staging area and one (1)
55-gallon container in the 180-day area with accumulation start dates.
On January 24, 2020, Respondent provided
photo documentation of hazardous accumulation containers marked with
accumulation start dates.
i. 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 eight (8) 55-gallon containers in the staging area and one (1) 55-gallon
container in the 180-day area with the words "Hazardous Waste."
On January 24, 2020, Respondent provided
photo documentation of hazardous waste containers properly marked with either
the words “Hazardous Waste.”
j. Pursuant to 40 CFR 262.34(d)(4)
referencing 40 CFR 265.35, a generator must maintain adequate aisle space to allow
the unobstructed movement of personnel, fire protection, spill control, and
decontamination equipment to any area of facility operation in an emergency.
As noted during the inspection,
Respondent failed to provide the required aisle space in the staging area,
where the back row of a group of eight (8) 55-gallons containers of hazardous
waste were inaccessible because of their location and because unused product
was stored on top of the hazardous waste.
On January 24, 2020, Respondent provided
photo documentation of aisle space being maintained within the storage area.
k. Pursuant to 40 CFR 262.34(d)(5)(ii), the generator must post the following information
next to the telephone: (A) The name and phone number of the emergency
coordinator. (B) Location of fire extinguishers and spill control material,
and, if present, fire alarm. (C) 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 emergency information next to the
telephone.
On January 27, 2020, Respondent provided
photo documentation of emergency information posted in areas directly involved
in the generation and accumulation of hazardous waste.
l. Pursuant
to 40 CFR 262.34(d)(5)(iii), the 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 failed to ensure that all employees are thoroughly familiar with
proper waste handling and emergency procedures, relevant to their
responsibilities during normal facility operations.
On January 24, 2020, Respondent provided
documentation of the employee training program.
m. Pursuant to 329
IAC 3.1-7-2, in addition to the requirements of 40 CFR 262.40, a generator
shall keep the reports required by IC 13-22-4-3.1 on file for at least three
(3) years after submission to the department.
As noted during the inspection,
Respondent failed to maintain copies of the 2018 Annual Manifest Report.
Subsequent to the inspection, a copy of
the 2018 Annual Manifest Report was provided by email on September 11, 2019.
The form did not contain all the required components as the report lacked a
Form OS.
On January 24, 2020, Respondent provided
a completed 2018 Annual Manifest Report.
9. Effective December 26, 2019, IDEM’s
Hazardous Waste Updates final rule (LSA Document #18-481) amended 329 IAC 3.1, 329
IAC 10, 329 IAC 11, and 329 IAC 13 in response to the United States
Environmental Protection Agency’s Hazardous Waste Generator Improvements Rule,
81 Fed. Reg. 85732 (Nov. 28, 2016). As a result, the requirements that
now apply to Respondent might differ from the requirements that applied at the
time of the alleged violations cited above.
10. 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 statutes and rules
listed in the findings of fact above.
3.
Within thirty (30) days of the Effective Date,
Respondent shall not accumulate hazardous waste for more than 180 days unless
an extension has been granted to the timeframe for as long as it remains a
small quantity generator of hazardous waste.
4. Within thirty (30) days of the Effective
Date, Respondent shall maintain Land Disposal Restriction Notification Forms on-site
as required and ensure the forms are fully completed.
5. Within thirty (30) days of the
Effective Date, Respondent shall mark all satellite containers with the words
“Hazardous Waste” or other words to identify the contents.
6. Within thirty (30) days of the
Effective Date, Respondent shall ensure that satellite accumulation containers
holding hazardous waste are closed during storage, except when it is necessary
to add or remove waste.
7. Within thirty (30) days of the
Effective Date, Respondent shall ensure that at a minimum, weekly inspections
of containers holding hazardous waste are completed looking for leaks and
deterioration caused by corrosion or other factors.
8. Within thirty (30) days of the
Effective Date, Respondent shall ensure that containers holding hazardous waste
are clearly marked with accumulation start dates.
9. Within thirty (30) days of the
Effective Date, Respondent shall ensure that containers holding hazardous waste
are clearly labeled or marked with the words “Hazardous Waste.”
10. Within thirty (30) days of the Effective
Date, Respondent shall ensure that adequate aisle space is maintained to allow
the unobstructed movement of personnel, fire protection, spill control, and
decontamination equipment to any area of facility operation in an emergency.
11. Within thirty (30) days of the Effective
Date, Respondent shall maintain copies of the completed reports required by IC
13-22-4-3.1 on file for at least three (3) years after submission to the
department.
12. All submittals required by this Agreed
Order, unless IDEM notifies the Respondent
otherwise in writing, shall be sent to:
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Debbie
Chesterson, Enforcement Case Manager |
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Office
of Land Quality |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
13. Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Zero Dollars ($0). This penalty
reflects a significant reduction from the original proposed civil penalty based
on evidence submitted to IDEM by Respondent which adequately demonstrated
Respondent’s inability to pay the original proposed civil penalty.
14. Signatories to this Agreed Order certify
that they are fully authorized to execute this Agreed Order and legally bind
the party they represent.
15. 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.
16. 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.
17. Respondent shall ensure that all
contractors, firms, and other persons performing work under this Agreed Order
comply with the terms of this Agreed Order.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
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By:
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By: _________________________ |
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Linda
L. McClure, Chief |
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Land
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Printed:
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Office of
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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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For the
Commissioner: |
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Signed February
18, 2020 |
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Peggy
Dorsey, Assistant Commissioner |
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Office of
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