Link to original WordPerfect Document here


STATE OF INDIANA    )            BEFORE THE INDIANA DEPARTMENT                 )        SS:    OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
            Complainant,            )
                            )     CAUSE NO. H-12649                 v.                )
LIGHTING RESOURCES, INC.,            )
                            )
            Respondent.            )

AGREED ORDER

    The Complainant and the 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 IC-13-30-3-3, entry into the terms of this
Agreed Order does not constitute an admission of any violation contained herein.

I. FINDINGS OF FACT

    1.    Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

    2.    Respondent is Lighting Resources, Inc., (hereinafter referred to as "Respondent"), who operates a place of business located in Greenwood, Indiana.

    3.    The Indiana Department of Environmental Management (hereinafter referred to as "IDEM") has jurisdiction over the parties and subject matter of this action.

    4.    Respondent submitted notification as a large quantity generator of hazardous         waste to the U.S. EPA on May 27, 1994, and was assigned the I.D. number         INO 000 351 387.


    5.    Upon request of the Respondent and consent of IDEM, the issuance of a Notice of Violation has been waived.

    6.    Based on a Compliance Evaluation Inspection of the facility on December 1, 1995, and a subsequent sampling investigation conducted March 12, 1996, by the Office of Solid and Hazardous Waste (hereinafter referred to as the "OSHWM"), IDEM contends that the following violations were in existence or observed at the time of the inspection.

        a.    Pursuant to 40 CFR 261.6(c), the owner/operator of a facility that             stores recyclable materials before they are recycled is regulated under             all applicable provisions of 40 CFR 264 and 265, Subparts A through L,             AA, and BB, and under 40 CFR 124, 266, 268, and 270. Based on             information gathered by IDEM, Respondent failed to comply with the             aforementioned requirements when it stored recyclable materials                  (fluorescent bulbs (D009)), and approximately twenty (20) fifty-five             gallon drums of mercury phosphor powder (D009) for greater than 72             hours before recycling. Specific storage facility violations noted during             the inspection included:

                1)    LRI did not have a waste analysis of the mercury                          phosphor powder (D009).

                2)    LRI stored restricted waste in excess of one (1) year                     without providing documentation that the accumulation of                     such quantities was necessary to facilitate proper recovery,                     treatment, or disposal.

                3)    LRI failed to conduct daily inspections of areas subjected                     to spills.

                4)    LRI accepted unmanifested hazardous waste from its                     facility in California without submitting an unmanifested                     waste report to the commissioner within fifteen (15) days.

                5)    LRI failed to maintain the required operating record of its                     facility describing the description and quantity of each                     hazardous waste received, and the method(s) and date(s)                     of its treatment, storage, or disposal.                     
        
        b.    Pursuant to IC 13-7-4-1(9), (currently IC 13-30-2-1(9)), and 329 IAC

            3.1-1-10, no person shall engage in the operation of any hazardous waste             facility without having first obtained a permit from the department and             notifying the commissioner of such activities. Based on information             gathered by IDEM, Respondent operated as a storage facility without             obtaining a permit or notifying the commissioner of those activities.

        c.    Pursuant to 40 CFR 261.6(c) referencing 40 CFR 265.16(b),                  facility personnel must successfully complete a hazardous waste                  management program of classroom instruction or on-the-job training             within six (6)    months after the date of their employment or assignment             to the facility. Based on information gathered by IDEM, Mr. Jason             Halley, the Operations Manager at the time of the inspection, had not             received the required training prior to working in this position                  unsupervised.

        d.    Pursuant to 40 CFR 261.6(c) referencing 40 CFR 265.16(d)(4), the             owner/operator must maintain at the facility, records that     document that             the training or job experience as required in this section has been given             to, and completed by, facility personnel. Based on information gathered             by IDEM, Respondent failed to maintain at the facility, records that             documented the required training for Mr. D. Heath Hildebrand, Branch             Manager, and Mr. Al Peterson, the former Operations Manager.

        e.    Pursuant to 40 CFR 261.6(c) referencing 40 CFR 265.52(d) and             265.54(d), a facility's contingency plan must list the names, addresses,             and phone numbers of all persons qualified to act as emergency                  coordinator, and this list must be kept up to date. Based on information
            gathered by IDEM, the new emergency coordinator was not identified in             the contingency plan.

        f.    Pursuant to 40 CFR 261.6(c) referencing 40 CFR 265.53(b),                  facilities must submit a copy of its contingency plan to all State and local             emergency response teams. Based on information gathered                  by IDEM, Respondent failed to submit a copy of its contingency plan             to the state's response group, IDEM Emergency Response Branch.
            
        g.    Pursuant to 40 CFR 261.6(c) referencing 40 CFR 265.35, the                  owner/operator must maintain adequate aisle space to allow the                  unobstructed movement of emergency equipment and personnel. Based
            on information gathered by IDEM, Respondent failed to maintain             adequate aisle space in the container storage area (CSA) next to the             ballast area.
    

        h.    Pursuant to 40 CFR 261.6(c) referencing 40 CFR 265.31,                  facilities must be maintained to minimize the possibility of any                  unplanned sudden or non-sudden release of hazardous waste or                  hazardous waste constituent to air, soil, or surface water which could             threaten human health or the environment. Based on information             gathered by IDEM, samples of floor sweepings taken in the facility             during the sampling investigation of March 12, 1996, exhibited elevated             levels of mercury. Broken fluorescent bulbs (D009) were also on the             floor in the Production Area. Harm to human health could occur in the             immediate area or by tracking out mercuric constituents on shoes and             clothing.

        i.    Pursuant to 40 CFR 262.34(a)(2), a generator may accumulate                  hazardous waste on-site for ninety (90) days or less provided that the             date upon which each period of accumulation begins is clearly marked             and visible for inspection on each container. Based on information             gathered by IDEM, the following containers were not marked with             accumulation dates or the dates were not visible for inspection:

            1)    One (1) fifty-five gallon container located in the enclosed                 container storage area was not clearly marked with the start of                 accumulation date. This was corrected at the time of inspection.

            2)     Approximately fifteen (15) fifty-five gallon containers containing                 D009, were stored in a manner in which the inspector was not                 able to verify accumulation dates. These drums were located                 next to the ballast area.

        j.    Pursuant to 40 CFR 262.34(a)(3), while accumulating hazardous waste             on-site, the generator must label or clearly mark each container with the             words "Hazardous Waste." Based on information gathered by IDEM,             Respondent failed to mark or clearly label fifteen (15) drums of                  hazardous waste stored next to the ballast area.

        k.     Pursuant to 40 CFR 262.34(c)(1)(ii), a generator accumulating                  hazardous waste at or near the point of generation, must mark his             containers either with the words "Hazardous Waste" or with other words             that identify the contents of the containers.

        l.    Pursuant to IC 13-7-4-1(3), (currently IC 13-30-2-1(3)), a person may             not deposit any contaminants upon the land in a place or manner that
            creates or would create a pollution hazard. Based on information             gathered by IDEM during the March 12, 1996 sampling investi-     

            
            gation, the following locations revealed elevated levels of                  mercury:

            1)    Floor sweepings collected inside the facility west of the roll-                 type door near the crushing unit (sample TK 4454);

            2)    Sweepings collected from the paved area around the outside                 rolloff (sample TK 4457);

            3)    Soil sample taken near the broken glass rolloff collection                       area (sample TK4458);

            4)    Soil samples taken behind the building at the air filtration                 discharge pipe (samples TK 4459 and TK 4460).        

        m.    Pursuant to 40 CFR 262.11 and 40 CFR 268.7, a person who generates
            a solid waste, as defined by 40 CFR 261.2, must determine if that waste
            is a hazardous waste. Based on information gathered by IDEM,
            Respondent failed to make a proper waste determination for the floor             sweepings in the process area. The floor sweepings were being disposed
            of as a nonhazardous solid waste.

        n.    Pursuant to 40 CFR 262.12(c), a generator must not offer his hazardous             waste to transporters or to treatment, storage, or disposal facilities that             have not received an EPA identification number. Based on information             gathered by IDEM, Respondent's hazardous waste floor sweepings             were transported and disposed by facilities that lacked EPA identification             numbers.

        o.    Pursuant to IC 13-7-4-1(12), (currently IC 13-30-2-1(12), and 329 IAC
            3.1-7-3(a), a generator must complete a manifest for the transportation             of hazardous waste when required by law. Based on information             gathered by IDEM, Respondent allowed the transportation of                  hazardous waste without a manifest when mercury contaminated floor             sweepings were transported off site with other nonhazardous solid waste.

        p.    Pursuant to Respondent's variance (Part III, (B)(4)) under Indiana Code             13-7-7-6, (currently IC 13-14-8-8), the facility shall record that all areas             and equipment exposed to broken bulbs have been effectively                  decontaminated on at least a daily basis. Based on information gathered             by IDEM, Respondent failed to record that this decontamination took             place on a daily basis.


        q.    Pursuant to Respondent's variance (Part III, (B)(6)) under Indiana Code             13-14-8-8, the facility shall recycle mercury from the process unless             extenuating circumstances exist and the failure to recycle mercury has             been approved in advance by the Commissioner. Based on information             gathered by IDEM, Respondent failed to recycle mercury from the             process and did not receive prior approval from the Commissioner to             continue operations. No notice of extenuating circumstances was             received or approved by the Commissioner.

        r.    Pursuant to Respondent's variance (Part III, (B)(8)), under Indiana Code             13-14-8-8, the facility shall verify at least annually that mercury is not             being washed away from the facility by rainwater or other precipitation             events. Based on information gathered by IDEM, Respondent failed to             submit to IDEM the required test results verifying that mercury is not             being washed away from the facility. Test results were available during             the inspection and were taken to IDEM for review.

    7.    Since the time of the inspection, Respondent has replaced the management team         in charge of the Greenwood facility, including the branch and service managers.         Lighting Resources, Inc., also has named a new company president. Respondent         has been very cooperative in resolving enforcement issues since the changes in         personnel.

    8.    In recognition of the settlement reached, Respondent 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 the Complainant or his delegatee, and has been received by the Respondent. This Agreed Order shall have no force or effect until the effective date.
    
    2.    Upon the effective date of the Order, Respondent shall cease all transportation,         storage, or disposal activities which would require a permit under 40 CFR         262.34(b) or those provisions contained in 40 CFR 261.6(c)(1).

    3.    Upon the effective date of the Order, Respondent shall revise its weekly         inspection schedule to include all container storage areas pursuant to 40 CFR         265.174. Unloading areas, and any other areas where the likelihood of spills is         increased, shall be inspected daily pursuant to 40 CFR 265.15 (b)(4).

    4.    Within sixty (60) days of the effective date of the Order, Respondent shall         complete all required hazardous waste management training for personnel whose

        positions involve hazardous waste management and maintain those training         records pursuant to 40 CFR 265.16. Submit documentation of completed         training to IDEM.

    5.    Within thirty (30) days of the effective date of the Order, Respondent shall         update its contingency plan to include all requirements pursuant to 40 CFR 265,         Subpart D. Submit a copy of the updated contingency plan to the Office of         Enforcement for approval prior to submitting to IDEM's Emergency Response         Branch.

    6.    Upon the effective date of the Order, Respondent shall amend its operating         record to include the method(s) and date(s) of each waste's treatment, storage,         and disposal pursuant to 40 CFR 265.73.

    7.     Upon the effective date of the Order, Respondent shall reorganize its container         storage area to include adequate aisle space for the movement of emergency         equipment and personnel pursuant to 40 CFR 265.35.

    8.    Upon the effective date of the Order, Respondent shall operate and maintain         its facility in a manner which minimizes the possibility of a release of hazardous         waste or hazardous waste constituent that may be harmful to human health or         the environment. This shall include the proper waste determination of all floor         sweepings and their disposal. Respondent shall complete a written Standard         Operating Procedure (SOP) which will describe the current operating              procedures at the facility and measures taken to avoid the reoccurrence of         hazardous wastes being deposited on the floor and soil.

    9.    Upon the effective date of the Order, Respondent shall clearly mark each         container of hazardous waste with the accumulation start date and the words         "Hazardous Waste" pursuant to 40 CFR 262.34(a)(2)(3).

10.    Upon the effective date of the Order, Respondent shall clearly mark each         satellite accumulation container with the words "Hazardous Waste" or with         other words identifying its contents pursuant to 40 CFR 262.34(c)(1)(ii).

11.    Within thirty (30) days of the effective date of the Order, Respondent shall         submit to IDEM for approval a closure plan, in accordance with the provisions         of 40 CFR 265, Subpart G, for those areas contaminated with mercury waste         and where illegal storage activities occurred.

12.    Upon notice of approval of the closure plan by IDEM, Respondent shall         implement the approved plan in accordance with the time frames contained         

        therein. Said plan will be incorporated and deemed an enforceable part of this         Order.

13.    Within thirty (30) days of the effective date of the Order, Respondent shall         establish financial assurance for closure of those areas defined in the closure
        plan, as prescribed by 329 IAC 3.1-15-4.

14.    Within thirty (30) days of the effective date of the Order, Respondent shall         demonstrate financial responsibility for claims arising from the operations of         said facility from sudden and accidental occurrences that cause injury to persons         or property, in accordance with 329 IAC 3.1-15-8.

15.    Upon the effective date of the Order, Respondent shall operate according to all         applicable large quantity hazardous waste generator requirements and              those provisions contained in 329 IAC 3.1-6-2(4), unless otherwise described in         its variance under Indiana Code 13-14-8-8. Should a situation arise where it         may be necessary for LRI to store recyclable materials for greater than 72         hours, LRI shall request authorization from IDEM's Compliance Monitoring         Section.

16.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

        Richard R. Milton, Case Manager
        Office of Enforcement
        Indiana Department of
        Environmental Management
        P.O. Box 6015
        Indianapolis, Indiana 46206-6015

17.    Respondent is assessed a Civil Penalty of $76,875. Of this amount, $15,375 shall be paid in 24 monthly installments of $640.63. The first payment shall be due on the 1st of the month following adoption of this Agreed Order. Failure to comply with the payment schedule will result in the entire cash penalty amount coming due. The remaining $61,500 shall be mitigated through the implementation of a Supplemental Environmental Project (SEP). The SEP is described as a fully-enclosed lamp demanufacturing and sorting apparatus which will eliminate particulate matter escaping from the system. The cost of the SEP shall exceed $123,000 to offset the $61,500 at a ratio of 2:1. Should the SEP
        not exceed $123,000, the remaining portion of the civil penalty will be added to         the cash penalty.

    18.    The SEP shall be completed within ninety (90) days following adoption of this

        Agreed Order. Respondent shall submit documentation as to the final cost of         the SEP.

19.    In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

        Violation                      Penalty

        Failure to comply with time frames as $100/day 1st 7 days
        specified in Orders 2 through 19. $250/day 8-30 days
                                    $500/day 31-60 days
                                    $1,000/day over 60 days
         
    20.    Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Commissioner has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall
        not preclude the Complainant from seeking any additional relief against the
        Respondent for violation of the Agreed Order. In lieu of assessment of the         stipulated penalty given above, the Complainant may seek any other remedies or         sanctions available by virtue of Respondent's violation of this Agreed Order,         including but not limited to civil penalties pursuant to IC 13-30-4-1, (formerly         13-7-13).

    21.    Civil and stipulated Penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number and shall be mailed to:

             Cashier
            IDEM
             100 N. Senate Avenue
            P.O. Box 7060
            Indianapolis, Indiana 46206-7060
    
    22.    In the event that the civil penalty required by paragraph 17 is not paid in accordance with the established schedule, the total remaining unpaid portion of the civil penalty becomes immediately due and payable. 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.

    23.    This Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The signatories to this Order certify that they are fully authorized to execute and

legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Order.

    24.    The Respondent shall provide a copy of this Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall by contract require that all contractors, firms, and other persons acting for it comply with the terms of this Order.
    
    25.    This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause letter to Respondent.

TECHNICAL RECOMMENDATION:        RESPONDENT:
Department of Environmental Management

By:                  By:     
    Pamela J. O'Rourke, Acting Chief        
    Hazardous Waste Section
    Office of Enforcement
                            
Date:                  Date:    

LEGAL RECOMMENDATION:            COUNSEL FOR RESPONDENT:
Department of Environmental Management

By:                  By:     
    Scott R. Storms
    Office of Legal Counsel
    Department of Environmental    
    Management
                                
Date:                  Date:     
        

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

THIS DAY OF , 199 .

                        FOR THE COMMISSIONER:

                        signed on 1/3/97
                        Patrick J. Carroll
                         Director
                        Office of Enforcement

Converted by Andrew Scriven