MIME-Version: 1.0 Content-Type: multipart/related; boundary="----=_NextPart_01CA6796.26456D80" This document is a Single File Web Page, also known as a Web Archive file. If you are seeing this message, your browser or editor doesn't support Web Archive files. Please download a browser that supports Web Archive, such as Microsoft Internet Explorer. ------=_NextPart_01CA6796.26456D80 Content-Location: file:///C:/F47B2E50/1013092009OEA132Bud'sBodyShop.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii"
Commissioner, Indiana Department of Environmental Management v.
Bud’s Body Shop, Inc.
2009 OEA 132, (05-S-E-3556)
[2009 OEA 1= 32, page 132 begins]
OFFICIAL S=
HORT
CITATION NAME: When referring to 2009 OEA 132, cite this case as =
&nbs= p; Bud’s Body Shop, 2009 OEA 132.
TOPICS:&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp;
Haps lacquer thinner&n= bsp;  = ; &n= bsp;  = ; &n= bsp; Notice of Violation
cleaners &n= bsp;  = ; &n= bsp;  = ; &n= bsp;  = ; used oil
spent  = ; &n= bsp;  = ; &n= bsp;  = ; &n= bsp; still bottoms
small quantity generator &= nbsp; &nbs= p; waste containment area
conditionally exempt &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; transporter
annual manifest report= &nb= sp; = &nb= sp; = off-site shipping
I.C. § 13-30-2-1&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; automotive repair
I.C. § 13-30-4-1&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; Civil penalty
I.C. § 4-21.5-3-14 &n= bsp;  = ; &n= bsp;  = ; site investigation = &nb= sp; = &nb= sp;
I.C. § 4-21.5-3-27 &n= bsp;  = ; &n= bsp;  = ; Commissioner’s Order
329 IAC 13 = &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; hazardous waste
329 IAC 3.1  = ; &n= bsp;  = ; &n= bsp;  = ; = Agreed Order &n= bsp;  = ; &n= bsp;  = ;
Ind. Trial Rule 4.6(A)
PRESIDING JUDGE:
Mary L. Davidsen
PARTY REPRESENTATIVES:
IDEM: &=
nbsp; Nancy
A. Holloran, Esq.
Respondent:  = ; Mark Shere, Esq.
ORDER ISSUED:
October 13, 2009
INDEX CATEGORY:
Land
FURTHER CASE ACTIVITY:
[none]
[2009 OEA 1= 32, page 133 begins]
STATE OF
) &nbs= p; &= nbsp; OF ENVIRONMENTAL ADJUDICATION
IN THE MATTER OF: = ; &n= bsp;  = ; &n= bsp; )
&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
COMMISSIONER, INDIANA DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, &nb= sp; )
&nbs= p; Complainant, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
&nbs= p; v. &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; CAUSE NO. 05-S-E-3556
&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
BUD’S BODY SHOP = , INC., &n= bsp;  = ; &n= bsp; )
&nbs= p; Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
=
FINDINGS
OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER
&nb= sp;
This matter is before the= Court pursuant to a August 12, 2008 and September 22, 2008 Final Hearing on Respondent, Bud’s Body Shop’s (“Bud’s”), June= 17, 2005 Petition for Administrative Review of Complainant, Indiana Department = of Environmental Management (“IDEM”) Commissioner’s Order seeking civil penalties from Bud’s for unpermitted hazardous waste release or disposal from its vehicle repairs operation. The Chief Environmental Law Judge (“ELJ”) having considered the petitions, testimony, evidence, a= nd pleadings of the parties, now finds that judgment may be made upon the record. The Chief ELJ, by substantial evidence, and being duly advised, now makes the following findi= ngs of fact and conclusions of law and enters the following Final Order:
Findings of Fact
1.&n= bsp; Bud’s Body Shop, Inc. (“Bud’sR= 21; or “Respondent”) owns and operates an automotive repair shop and service center in an industrial park at 3816 Lexington Park Drive, Elkhart, Elkhart County, Indiana (“Site”). The processes included bodywork, p= ainting, equipment cleaning, general vehicle maintenance, and automotive fluid changes. The facility operate= d a five-gallon recycling unit in the paint mix area to recycle spent lacquer thinner. Exs. 1, 2.[1]<= /a>
2.&n=
bsp;
Mark
Espich, IDEM Office of Land Quality Inspector, conducted a two-day site
investigation on July 23 and 24, 2002 (“Site Investigations”) Id.
3.&n= bsp; Inspector Espich has been employed by IDEM for fift= een (15) years, primarily in hazardous waste compliance and inspections, includ= ing hazardous waste review, inspections, and industrial waste compliance.
[2009 OEA 1= 32, page 134 begins]
4.&n=
bsp;
The two investigations were reported by IDEM in
“Industrial/Hazardous Waste Inspection Report”, and signed by T=
im
Ginther, for Bud’s. Ex. 2. The inspection r=
eport
noted that Bud’s regulatory status was a small quantity generator of
hazardous waste. The hazardous
waste streams included waste lacquer thinner, still bottoms, thinner rags a=
nd
paint booth filters.
5.&n= bsp; Hazardous waste was documented as present on the Si= te and included Haps lacquer thinner, CP100 Gun Wash Solvent, Cleaners and Degreasers, CP10 Acrylic Lacquer Thinner, Autocryl MM toners, and Autobase Mixed Colors. Exs. 4-9. These products were used on-site, but when spent, were then hazardous waste.
6.&n= bsp; The type of regulations which apply to a hazardous waste generator depend, in part, on the volume of waste generated. In this case, Bud’s disputed= that it is a Small Quantity Generator of Waste, contending instead that its volu= me qualified Bud’s as Conditionally Exempt. In 1986, Bud’s, by its office manager Tim Ginther, notified the U.S. Environmental Protection Agency (“EPA”) on EPA form “Notification of Hazardous Waste Activity” that it was a Small Quantity Generator of hazardous waste, = per EPA ID number IND064715907. Ex. 10.
7.&n=
bsp;
Bud’s 20=
02
Annual Manifest Report was submitted to IDEM on March 5, 2003, and prepared=
by
Bruce Carter Associates, LLC, and signed by Bud’s Tim Ginther. Ex.
12. Bud’s 2002 Annu=
al
Manifest Reports contain Bud’s EPA Generator number IND064715907, the
notification forms and off-site shipping forms.
8.&n=
bsp;
Bud’s January 29, 2002 Uniform Hazardous Waste
Summary Report, from transporter Liquid Waste Removal, indicates that
Bud’s sent offsite 110 gallons, or 825 pounds, of hazardous waste in =
the
form of Waste-paint related material.
Ex. 13. And, other hazardous waste streams,
(such as rags, and spent solvent reclaimed on-site), are not included
calculating the amount of hazardous waste generated in 2002.
9. Bud’s
January 29, 2002 EPA Uniform Hazardous Waste Manifest from transporter Liqu=
id
Waste Removal, Inc., shows that 440 gallons, or 3,300 pounds, of hazardous
waste, in the form of waste paint-related material, was sent off-site by
Bud’s. Ex. 14.  =
;
10.&=
nbsp; The
2001 Annual Manifest Report, signed by Tim Ginther for Bud’s, also st=
ates
that Bud’s was a Small Quantity Generator in 2001, and includes a
manifest summary report for 2,673 pounds of hazardous waste received by Ess=
roc,
transported by Liquid Waste Removal, Inc.&=
nbsp;
Ex. 13. In 2003, Essroc
received 423 pounds of waste paint and auto body solvents from
Bud’s. Ex. 11, p. 2. Other hazardous waste streams,=
not
included in the amounts Essroc received, include rags, and spent solvent
reclaimed on-site.
[2009 OEA 1= 32, page 135 begins]
11.&= nbsp; IDEM Inspector Espich took photos at the Site during his inspection on July 23 a= nd 24, 2002. Ex. 15.
12.&=
nbsp; Bud’s
Waste Containment Area is depicted in photos 1 through 6. Ex.
15. The Waste Containment=
Area
is a concrete pad with block concrete walls.
13.&= nbsp; The bottom of the Waste Containment Area was cracked; test results from BudR= 17;s prior environmental consultant on the Waste Containment Area, showed that w= hen filled, the Waste Containment Area drained in seven hours. Although the parties disputed whet= her the Waste Containment Area contained oil, substantial evidence supports the= conclusion that hazardous waste, in the form of still bottoms and used oil, was releas= ed into the Waste Containment Area. Ex. 15, photos 4, 5, 6.
14.&= nbsp; Bud’s Paint Mix Area is shown in photos 7 and 8.= Ex. 15. An open, unlabelled trash receptac= le contained disposed rags contaminated with lacquer thinner. Ex. 15, photo 7. An open, unlabelled thirty-gall= on trash container had disposed 5-gallon satellite accumulation of waste lacqu= er thinner. Ex. 15, photo 8.
15.&= nbsp; Bud’s Painting Area is shown in photos 9, 10, 11 and 12. Ex. 15. The Painting Area inc= ludes a gun washing station for cup guns, Ex. 15, photo 9; a gun washing station for gravity fed auto painting guns, = Ex. 15, photo 10; gun washing stat= ions and a spray booth, Ex. 15, photo 11= ; and a recycling unit for spent lacquer thinner, Ex. 15, photo 12.
16.&=
nbsp; Bud’s
sent some of its used oil to
17.&= nbsp; After IDEM’s July 23, 24, 2002 inspection, Inspector Espich referred Bud’s to the IDEM Office of Enforcement. Ex. 2a. IDEM issued Bud’= ;s a Violation Letter on September 26, 2002.&nb= sp; Ex. 2b.
18.&= nbsp; IDEM’s Office of Land Quality Section Chief, Nancy Johnston, testified that as for civil penalty, Bud’s exhibited good faith cooperation concerning unpermitted hazardous waste, and removing waste from the Waste Containment Area.
[2009 OEA 1= 32, page 136 begins]
19.&=
nbsp; IDEM
issued a Notice of Violation (“NOV”) on January 15, 2003. Final
Hearing Exs. 17, 18. The NOV
included an offer to enter into an Agreed Order (“AO”) per I.C.
§ 13-30-3-3.
20.&=
nbsp; On
June 1, 2005, IDEM’s Commissioner issued a Notice and Order
(“Commissioner’s Order” or “CO”) pursuant to =
I.C.
§ 13-30, et seq., 329 IAC =
13 and
329 IAC 3.1. Petition for Administr=
ative
Review. In summary, the CO
stated that Bud’s did not comply with I.C. § 13-30, et seq., and 329 IAC 13 and 329 IAC 3.1 because=
Bud’s
did not make hazardous waste determinations for, and improperly transported=
and
disposed, two waste streams of solvent contaminated rags and spray booth
filters contaminated with lacquer thinner. Id.
IDEM also asserted that Bud’s accumulated unpermitted waste in open
containers, containers that were not properly labeled as hazardous waste or
other descriptions of the contents.
21.&=
nbsp; The
Commissioner’s Order required Bud’s to comply with I.C. §
13-30, et seq., and 329 IAC 13 and 329 IAC 3.1, by correcting site violations =
and
paying a civil penalty of $47,750. <=
/span>
Conclusions of Law
1.&n=
bsp;
The Indiana Department of Environmental Management
(“IDEM”) is authorized to implement and enforce specified
2.&n= bsp; This is a Final Order issued pursuant to I.C. § 4-21.4-3-27. Findings of Fact= that may be construed as Conclusions of Law and Conclusions of Law that may be construed as Findings of Fact are so deemed.
3.= In this cause, IDEM has the burden of proof and persuasion. I.C. § 4-21.5-3-14(c).
[2009 OEA 1= 32, page 137 begins]
4.=
This
Court must apply a de novo standard of review to this proceeding when
determining the facts at issue. Indianapolis
5.=
OEA
is required to base its factual findings on substantial evidence. Jennings Water, Inc. v. Office of
Environmental Adjudication, Commissioner, Indiana Department of Environment=
al
Management, and Talara Lykins, 2009 Ind. App. Lexis 965, p. 13 (Ind. Ct.
App. July 20, 2009); Huffman v. Office of Envt’l. Adjud., 811 N.E.2d 806, 809 (Ind.
2004)(appeal of OEA review of NPDES permit); see also I.C. § 4-21.5-3-27(d). While the parties disputed IDEM=
217;s
determination that Bud’s waste product storage and disposal violated =
[2009 OEA 1= 32, page 138 begins]
8.= IDEM alleges that Respondent Bud’s violated I.C. § 13-30-2-1(1), which provides, in pertinent part:
<= /span>A person may not do any of the following:
(1) Discharge, emit, cause, allow, or threaten to discharge, emit, cause or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into:
(= A) = the environment . . . in any form that causes or wo= uld cause pollution that violates or would violate rules, standards, or dischar= ge or emission requirements adopted by the appropriate board under environment= al management laws.
9= . By substantial evidence, Bud’s violated I.C. § 13-30-2-1(1) by allo= wing the release of hazardous waste still bottoms and used oil into Bud’s Waste Containment Area, then into the environment through cracks in the Was= te Containment Area.
10= . IDEM alleges that Bud’s violated I.C. § 13-30-2-1(12) which provides,= in pertinent part:
A person ma= y not do any of the following:
&=
nbsp; …
Cause or allow the transportation of a hazardous waste without a manifest i=
f a
manifest is required by law. =
1= 1. By substantial evidence, Bud’s violated I.C. § 13-30-2-1(12) by sen= ding hazardous waste rags and spray booth filters off-site without required haza= rdous waste manifests.
[2009 OEA 1= 32, page 139 begins]
[2009 OEA 1= 32, page 140 begins]
<= span style=3D'mso-list:Ignore'>24.&= nbsp; According to this policy, a civil penalty is calculated for each violation by “= (1) determining a base civil penalty dependent on the severity and duration of = the violation, (2) adjusting the penalty for special factors and circumstances,= and (3) considering the economic benefit of noncompliance.” The base civil penalty is calculated taking into account two factors: (1) the potential for harm and (2) the extent of deviation.
<= span style=3D'mso-list:Ignore'>25.&= nbsp; Several violations of I.C. § 13-30-2-1(3), I.C. § 13-30-2-1(1), I.C. &sec= t; 13-30-2-1(12), 329 IAC 13-3-2, 329 IAC 13-4-3(a), 329 IAC 13-4-3(d), 329 IAC 13-4-3(e), and 329 IAC 3.1 have been proven by substantial evidence, but gr= oup into (1) violations concerning hazardous waste characterization, (2) improp= er disposal of rags and filters, (3) release to the environment, and (4) conta= iner management. The ELJ concludes that four violations shall be utilized.
26.&= nbsp; The policy states that the potential for harm may be determined by considering “the likelihood and degree of exposure of persons or the environment = to pollution” or “the degree of adverse effect of noncompliance on statutory or regulatory purposes or procedures for implementing the program”. There are sev= eral factors that may be considered in determining the likelihood of exposure. <= span style=3D'mso-spacerun:yes'> These are the toxicity and amount o= f the pollutant, the sensitivity of the human population or environment exposed to the pollutant, the amount of time exposure occurs and the size of the viola= tor.
27.&= nbsp; The ELJ concludes that the potential for harm is moderate. No evidence was presented that act= ual harm has occurred. When the concrete pad at Waste Containment Area was removed, clean sand was left, but off-site migration has not been determined.
28.&= nbsp; The extent of deviation relates to the degree to wh= ich the requirement is violated. = In this case, Respondent Bud’s significantly deviated from the requireme= nts of several regulations when it improperly disposed of hazardous waste, fail= ed to characterize or manage used oil, and failed to label items. However, given the size of the Sit= e, the lack of any information regarding the initial releases lessens the extent of deviation, and the fact that Bud’s complied with some regulations, the ELJ concludes that the extent of deviation is moderate.
[2009 OEA 1= 32, page 141 begins]
29.&=
nbsp; In accordance with the Civil Penalty policy, IDEM is
authorized to assess civil penalties of up to $25,00 per day of any violati=
on, I.C.
§ 13-30-4-1, but generally calculates multi-day
penalties in the case of continuing violations that demonstrate a major
potential for harm and/or a major extent of deviation, but may be calculated
for other continuing violations. Technically,
the Respondent has been out of compliance since before the July 23 and 24, =
2002
site inspections. There is no
question that the Respondent has known that a release occurred at the Site
since 2003 (the date that IDEM notified them of the obligation to conduct an
ISC) or, at the very latest, 2007 when IDEM provided the more detailed
information. However, the ELJ=
found
that the potential for harm and extent from deviation were each moderate. The Days of Noncompliance Multipli=
er is
properly 1.
30.&= nbsp; The IDEM produced no evidence that either mitigating = or aggravating circumstances were considered or that it calculated any economic benefit.
<= span style=3D'mso-list:Ignore'>31.&= nbsp; According to the Civil Penalty Policy, a value is selected within a cell per the judg= ment of staff and is based on the individual circumstances of each case, to establish the base penalty. T= his value may be adjusted by aggravating or mitigating factors. The ELJ finds neither aggravating = nor mitigating factors to consider. Mr. Ginther’s testimony was that the material was a waste stream from whi= ch Bud’s received little profit and that his business had a modest profiting. Therefore, Respondent received no economic benefit from its violation.
<=
span
style=3D'mso-list:Ignore'>32.&=
nbsp; For
(1) violations concerning hazardous waste characterization, the ELJ conclud=
es
that a moderate potential for harm, with a moderate extent of deviation. <=
span
style=3D'mso-list:Ignore'>33.&=
nbsp; For
(2) improper disposal of rags and filters, the ELJ concludes that a moderate
potential for harm, with a moderate extent of deviation. With no aggravating or mitigating
circumstances, but numerous violations, the ELJ finds a civil penalty of Ten
Thousand Dollars ($10,000). <=
/p>
<=
span
style=3D'mso-list:Ignore'>34.&=
nbsp; For
(3) release to the environment, the ELJ concludes that a moderate potential=
for
harm, with a moderate extent of deviation.=
With no aggravating or mitigating circumstances, and with substantial
evidence supporting a modest amount of volume, the ELJ finds a civil penalt=
y of
Seven Thousand Five Hundred Dollars ($7,500). <=
span
style=3D'mso-list:Ignore'>35.&=
nbsp; For
(4) container management, the ELJ concludes that a minor potential for harm,
with a minor extent of deviation.
With no aggravating or mitigating circumstances, but numerous
violations, the ELJ finds a civil penalty of Three Thousand Five Hundred
Dollars ($3,500). 33.&=
nbsp;
Therefore, the ELJ conc=
ludes
after a de novo review, that the
proper penalty is $31,000 (thirty-one thousand dollars), and the Jun=
e 1,
2005 Commissioner’s Order is sustained in all other respects. [2009 OEA 1=
32, page 142
begins] Final Order For all of the foregoing =
reasons,
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Respondent,
Bud’s Body Shop, Inc., violated I.C. § 13-30-2-1(3), I.C. §
13-30-2-1(1), I.C. § 13-30-2-1(12), 329 IAC 13-3-2, 329 IAC 13-4-3(a),=
329
IAC 13-4-3(d), 329 IAC 13-4-3(e), and 329 IAC 3.1. Respondent, Bud’s Body Shop,=
Inc.
is subject to civil penalties of Thirty-One Thousand Dollars ($31,000.00) f=
or
violating Indiana’s environmental management laws and water pollution
control laws. The Indiana
Department of Environmental Management’s June 1, 2005
Commissioner’s Order is AFFI=
RMED in
all other respects. You are further notified =
that, pursuant
to provisions of I.C. §
4-21.5-7-5, the Office of Environmental Adjudication serves as the ultimate
authority in administrative review of decisions of the Commissioner of the
Indiana Department of Environmental Management. A party is eligible to seek Judici=
al
Review of this Final Order as stated in applicable provisions of I.C. §
4-21.5, et seq. Pursuant to I.C. § 4-21.5-5-5=
, a
Petition for Judicial Review of this Final Order is timely only if it is fi=
led
with a civil court of competent jurisdiction within thirty (30) days after =
the
date this notice is served. IT IS SO ORDERED th=
is
13th day of October, 2009, in Hon. Mary L.  =
; Chief
Environmental Law Judge [2009 OEA 132: end of
decision] 2009
OEA 132 in .doc format 2009
OEA 132 in .pdf format
=
[1] References are to exhibits present=
ed at
the Final Hearing settings, unless otherwise identified.
=
[2] IDEM’s Civil Penalty Policy =
is a
nonrule document, ID No. Enforcement 99-0002-NPD, originally adopted on Apr=
il
5, 1999 in accordance with I.C. § 13-14-1-11.5.
Commissioner, Indiana Department of Environmental Management v.
Bud’s Body Shop, Inc.
2009 OEA 132, (05-S-E-3556)