STATE OF INDIANA���������� )���������������������� BEFORE
THE INDIANA DEPARTMENT OF
����������������������������������������������� ) SS:���������������
COUNTY OF MARION������� )���������������������� ENVIRONMENTAL
MANAGEMENT
COMMISSIONER OF THE
DEPARTMENT��������� )
OF ENVIRONMENTAL MANAGEMENT,����������� )
����������������������������������������������������������������������������������� )
Complainant,�������������� )
����������������������������������������������������������������������������������� )
����������������������������������� v.�������������������������������������������� )���������� Case No. 2023-29776-H
����������������������������������������������������������������������������������� )
TRI-PAC, 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 C'IC) 13-30-3-3,
entry into the terms of this Agreed Order docs not
constitute an admission of any violation contained herein. Respondents' 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
l.��������� Complainant
is the Commissioner ("Complainant�) of the Indiana Department of
Environmental Management ("IDEM"), a department of the State of
Indiana created by IC l3-13-l-1.
2.
Respondent is
Tri-Pac, Inc. which operates the company with EPA ID No. INR000154062 located
at 3507 Olive Road, Suite D, 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:
Vikram Shah, President��������������������� Paras
Shah, Registered Agent
Tri-Pac, Inc.��������������������������������������� Tri-Pac,
Inc.
3333 N. Kenmore Street�������������������� 50988
Mercury Drive
South Bend, IN 46628����������������������� Granger,
IN 46530
5.
Respondent
notified EPA of Large Quantity Generator activities on November 30, 2023.
6.
Respondent
manufactures aerosol and liquid products (personal care, cosmetic, medical
devices, and professional care products).
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 October 19, 2023, conducted by a
representative of IDEM, the following violations were found:
a.
Pursuant to 40
CFR 262.11: a person who generates a solid waste must determine if that waste
is a hazardous waste at the point of waste generation, before any dilution,
mixing, or other alteration of the waste occurs, and at any time in the course
of its management that it has, or may have, changed its properties as a result
of exposure to the environment or other factors that may change the properties
of the waste such that the RCRA classification of the waste may change.
As noted during the inspection, Respondent did not
make hazardous waste determinations on four (4), 275-gallon unlabeled totes
containing liquid located in the former production area. The 4 totes were
located among thirteen (13), 275- gallon totes labeled as hazardous waste.
On December 1, 2023, Tri-Pac provided IDEM with a
waste determination. The 4 totes contained D001 hazardous waste.
b.
Pursuant to 40
CFR 262.13, a generator must determine its generator category. A generator's
category is based on the amount of waste generated each month and may change
from month to month.
As noted during the inspection, Respondent was a non-notifier
and did not properly determine its generator category as a Large Quantity
Generator.
c.
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.
d.
Pursuant to 40
CFR 262.17(a), a large quantity generator that accumulates hazardous waste on
site for more than 90 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 90-day period.
As noted during the inspection, Respondent stored
hazardous waste on-site for greater than 90 days without complying with 40 CFR
Part 264 and 40 CFR Part 270.
e.
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 had stored
hazardous waste identified or listed in 40 CFR 261 without a permit.
f.
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 stored
hazardous waste identified or listed in 40 CFR Part 261 without a permit.
g.
Pursuant to 40
CFR 262.17(a)(5)(i)(B), a large quantity generator may accumulate hazardous
waste on-site for 90 days or less without a permit, provided that, while being
accumulated on-site, each container is labeled or marked with an indication of
the hazards of the contents.
As noted during the inspection, Respondent accumulated
hazardous waste on-site, without a permit, and did not label or clearly mark
containers with an indication of the hazards of the contents. Specifically,
Respondent did not label or clearly mark eleven (11), 275-gallon totes of
hazardous waste within the former production area with an indication of the
hazards of the contents.
h.
Pursuant to 40
CFR 262.17(a)(5)(i)(C), a large quantity generator may accumulate hazardous
waste on-site for 90 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 did not mark hazardous waste
containers with accumulation start dates. Specifically, Respondent did not mark
nine (9), 275-gallon totes of hazardous waste within the former production area
with accumulation start dates.
i.
Pursuant to 40
CFR 262.17(a)(l)(v), at least weekly, the large quantity generator must inspect
central accumulation areas. The large quantity generator must look for leaking
containers and for deterioration of containers caused by corrosion or other
factors.
As noted during the inspection, Respondent failed to
conduct weekly inspections of the central accumulation areas.
j.
Pursuant to 40
CFR 262. l 7(a)(6) referencing 40 CFR 262.255 of Subpart M, a large quantity
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 adequate aisle space. Specifically, totes labeled "Hazardous
Waste" located along the production storage walls were placed behind
pallets of stacked boxes that could not be moved.
k.
Pursuant to 40
CFR 262. l7(a)(7)(i), (ii), and (iii), facility personnel must complete a
program of classroom instruction, online training, or on-the-job training that
teaches them to perform their duties in compliance with the hazardous waste
management rules. Employees must be trained within six months after their date
of hire and must take part in an annual review of the initial training.
As
noted during the inspection, Respondent did not provide initial hazardous waste
training.
l.
Pursuant to 40
CFR 262. l 7(a)(6) referencing 40 CFR 262.260 of Subpart M, a generator must
have a contingency plan for the facility.
As noted during the inspection, Respondent did not
have a contingency plan.
m.������� Pursuant
to 40 CFR 262. l 7(a)(6) referencing 40 CFR 262.262(b) of Subpart M, a large
quantity generator that first becomes subject to these provisions after May 30,
2017 or a large quantity generator that is otherwise amending its contingency
plan must at that time submit a quick reference guide of the contingency plan
to the local emergency responders identified at paragraph (a) of this section
or, as appropriate, the Local Emergency Planning Committee. The quick reference
guide must include:
(1)������� The
types/names of hazardous wastes in layman's terms and the associated hazard
associated with each hazardous waste present at any one time.
(2)
The estimated
maximum amount of each hazardous waste that may be present at any one time.
(3)
The
identification of any hazardous wastes where exposure would require unique or
special treatment by medical or hospital staff.
(4)
A map of the
facility showing where hazardous wastes are generated, accumulated and treated
and routes for accessing these wastes.
(5)
A street map of
the facility in relation to surrounding businesses, schools, residential areas
to understand how best to get to the facility and also
evacuate citizens and workers.
(6)
The locations of
water supply.
(7)
The identification
of on-site notification systems; and
(8)
The name or the
emergency coordinator(s) and 7/24-hour emergency telephone number(s) or, in the
case of a facility where an emergency coordinator is continuously on duty, the
emergency telephone number for the emergency coordinator.
As
noted during the inspection, Respondent failed to provide a Quick Reference
Guide.
9.
Respondent contends
the Site has been vacated as of August 7, 2024. On August 27, 2024, Respondent
filed a closing notification for the Site. On November 1, 2024, IDEM conducted
an inspection of the Site and found no hazardous waste on-site.
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 of this Agreed Order, Respondent
shall submit a hazardous waste closure plan for the former production area to
IDEM for approval. Contact the case manager for how to submit the closure plan.
The closure plan shall be completed in accordance with the provisions of 40 CFR
264 Subpart G, as incorporated by 329 IAC 3.1-9-1. Stipulated penalties as stated in Order paragraph 12 will
begin on the 31st day from the Effective Date and will continue until the
documentation is submitted as required by this paragraph.
4.
Within ten (10)
days of notice of IDEM's approval of the closure plan, Respondent shall
implement the plan as approved and in accordance with the time frames contained
therein.
5.
In the event IDEM
determines that any plan submitted by Respondent is deficient or otherwise
unacceptable, Respondent shall revise and resubmit the plan to IDEM in
accordance with IDEM is notice. After three (3) submissions of such plan by
Respondent, IDEM may modify and approve any such plan and Respondent must
implement the plan as modified by IDEM. The approved plan shall be incorporated
into this Agreed Order and shall be deemed an enforceable part thereof.
6.
All submittals
required by this Agreed Order unless IDEM notifies the Respondent otherwise in writing,
shall be sent to:
Lucas
Kroening, Enforcement Case Manager
Office
of Land Quality
Indiana
Department of Environmental Management
100
North Senate Avenue
Indianapolis,
IN 46204-225l
7.
Pursuant to IC
13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of
Fifty-Two Thousand Dollars ($52,000). Within thirty (30) days of the Effective
Date, Respondent shall pay a portion of the penalty in the amount of Thirteen
Thousand Dollars ($13,000).� After this
Agreed Order is adopted (signed by the Assistant Commissioner of the Office of Land
Quality), Respondent shall pay by the due date printed on the Invoice that will
be attached to the adopted Agreed Order.
Civil and stipulated penalties are payable to the �Indiana
Department of Environmental Management� by:
Mail:
Civil penalties are payable by check to the �Indiana
Department of Environmental Management.� Checks shall include the Case Number
of this action and shall be mailed to:
Indiana
Department of Environmental Management
Accounts
Receivable
P.O.
Box 3295
Indianapolis,
IN 46206
Online:
Accounts Receivable is accepting payments online by e-Check,
Master Card, Visa or Discover. Please visit www.IN.gov/IDEM. Under Online Services, click Online Payment options
and follow the prompts. A processing fee of $0.40 plus 2.06% will be charged
for credit card payments. A processing fee of $0.15 will be charged for eCheck payments.
The Case Number is required to complete the process.
Phone:
You may also call us at 317-234-3099 and follow the
instructions for Master Card, Visa or Discover payments. A processing fee of
$0.40 plus 2.06% will be charged for credit card payments. A processing fee of
$0.15 will be charged for eCheck payments.
The Case Number is required to complete the process.
8.
In lieu of
payment of the remaining civil penalty, Respondent shall make a cash payment to
the Indiana Finance Authority (�IFA�) to fund a Supplemental Environmental
Project (�SEP�) of activities related to brownfield development at a brownfield
site ("Brownfield Site") in St. Joseph County, Indiana. Respondent
will make a payment in the amount of Thirty-Nine Thousand Dollars ($39,000) to
fund SEP activities at the Brownfield Site. Respondent shall make such payment
to the IFA within thirty (30) days of the Effective Date. Payment to the IFA
satisfies Respondent's obligation to undertake a SEP to offset a portion of the
civil penalty assessed in this matter. Implementation of this SEP will benefit
the community by rejuvenating neighborhoods, increasing the tax base,
mitigating threats to human health and the environment, and/or reducing blight.
In the event that the civil penalty is not paid within
thirty (30) days of the Effective Date, Respondent shall pay interest on the
unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall
continue to accrue until the civil penalty is paid in full.
9.
The Brownfield
Site at which some or all of the SEP proceeds spent
will be determined by the Brownfields Program for a site located in St. Joseph
County, Indiana. The designation of this Brownfield Site to receive the SEP
proceeds is agreed upon by the Complainant, Respondent, and the IFA. The IFA
will account for the SEP payment and the Brownfields Program will oversee the
work undertaken at the Brownfield Site funded by the SEP proceeds. If SEP
proceeds remain following a determination by the Brownfields Program that no
additional SEP proceeds are needed at the Brownfield Site, the Brownfields
Program will select another site or sites in St. Joseph County at which work
will be funded with the balance of the SEP proceeds. The IFA will notify IDEM's
Enforcement Case Manager when SEP-funded activities at the Brownfield Site (and
any other site at which activities may be funded with SEP proceeds) are complete.
10.
In the event that
Respondent does not make its SEP payment within thirty (30) days of the
Effective Date, the full amount of the civil penalty as stated in this
paragraph, plus interest established by IC 24-4.6-1-101 on the remaining
amount, less the portion of the civil penalty Respondent has already paid, will
be due within fifteen (15) days from Respondent's receipt of IDEM's notice to
pay. Interest at the rate established by IC 24- 4.6-1-101, shall be calculated
on the amount due from the date which is thirty (30) days after the Effective
Date of this Agreed Order until the full civil penalty is paid.
11.
Payment of the
SEP is payable by check to the �Indiana Finance Authority.� The text �SEP- South
Bend� and the Case Number of this action shall be included in the memo line of
the check. The check shall be mailed to:
Meredith Gramelspacher
Indiana Brownfields Program - SEP 100 N. Senate Avenue
Room 1275
Indianapolis, Indiana 46204
12.
In the event the terms
and conditions of the following paragraphs are violated, Complainant may
assess, and Respondent shall pay a stipulated penalty in the following amount:
Paragraph����������������������������� Stipulated
Penalty
Order paragraph # 3��� ���������� $500
per week
Order paragraph # 4��� ����������� $500
per week
Order paragraph # 5 �� ����������� $100
per week
Stipulated penalties shall
begin to be assessed on the date after the Effective Date and shall continue
until the documentation is submitted as required by the associated paragraph.
13.
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; at which time, a separate invoice will
be issued. 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.
14.
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 an additional penalty of 10 percent, payable to �Indiana
Department of Environmental Management,� and shall be payable to IDEM in the
manner specified in Paragraph 19, above.
15.
Signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent.
16.
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.
17.
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.
18.
Respondent shall
ensure that all contractors, firms, and other persons performing work under
this Agreed Order comply with the terms of this Agreed Order.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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 Hable 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.
24.
This Agreed Order
shall remain in effect until IDEM issues a Resolution of Case letter to
Respondent.
REMAINDER OF PAGE LEFT BLANK
INTENTIONALLY
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TECHNICAL
RECOMMENDATION: Department of Environmental Management |
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By: |
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Jennifer Reno, Chief |
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Land Enforcement Section |
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Compliance Branch |
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Office of Land Quality |
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Date: |
11/14/2024 |
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RESPONDENT: � |
COUNSEL FOR RESPONDENT: � |
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COUNSEL FOR INDIANA FINANCE AUTHORITY: For the Indiana Brownfields Program |
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By: |
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Director and General Counsel |
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COUNSEL &/OR AUTHORIZED REPRESENTATIVE: For the City of South Bend |
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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 1/9/25 |
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Brian Wolff |
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Assistant Commissioner |
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