RE: CASE NO, HWM

Transcription

1 STATE OF TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION Division of Solid Waste Management Fifth Floor, L & C Tower 401 Church Street Nashville, Tennessee June 6, 2013 Corporation Service Company 2908 Poston Avenue Nashville, Tennessee CERTIFIED MAIL # RETURN RECEIPT REQUESTED Dear Sirs: Since ly, RE: CASE NO, HWM Enclosed please find an Order and Assessment issued to Philips Electronics North America Corporation ollb/a Philips Lighting Memphis Regional Distribution Center [TNR ], by the Tennessee Department of Environment and Conservation, Division of Solid Waste Management. Please read it carefully and pay special attention to the NOTICE OF RIGHTS section. If you or your attorney have any questions, please feel free to contact me at (615) GareyeMabry, Manager Hazardous Waste Program Division of Solid Waste Management cc: Patrick J. Flood, DSWM/Nashville Central Office J.C. Goodwin, EPA Region IV, Atlanta GA Herb Nicholson, DSWMJMemphis Environmental Field Office Lisa Hughey, DSWM/Nashville Central Office Enforcement File/ Nashville Central Office

2 STATE OF TENNESSEE DEPARTMENT OF ENVEIONMENT AND CONSERVATION. IN THE MATTER OF: ) DIVISION OF SOLID WASTE ) MANAGEMENT PHILIPS ELECTRONICS ) NORTH AMERICA CORPORATION ) d/b/a ) PHILIPS LIGHTING ME HIS ) REGIONAL DIST 1UTION CENTER ) TNR ). CASE NO. HWM RESPONDENT ) ) DIRECTOR'S ORDER PARTIES L Robert J. Martineau, Jr. is the duly appointed Commissioner of the Department of Environment and Conservation and, among other duties and responsibilities, he is charged with the responsibility for administering and enforcing the Tennessee Hazardous Waste Management Act (hereinafter the "Act"), T.C.A et seq. Patrick J. Flood is the duly appointed Director of the Division of Solid Waste Management (hereinafter the "Division"). He has received written delegation from the Commissioner to administer and enforce particular aspects of the Act. IL Philips Electronics North America Corporation (hereinafter the "Respondent") is a foreign (Delaware) corporation d/b/a Philips Lighting Memphis 1

3 Regional Distribution Center. Its agent for service of process is Corporation Service Company, 2908 Poston Avenue, Nashville, Tennessee JURISDICTION When provisions of the Act are not being complied with, the Commissioner or his representative is authorized by T.C.A to issue orders for correction to the responsible party. Further, T.C.A (b) gives the Commissioner or his authorized representative the authority to assess damages and civil penalties against any person who violates any provision of the above-mentioned Act or any rule, regulation, or standard adopted pursuant to said Act. IV. The Respondent is a "person" within the meaning of T.C.A FACTS V. The Respondent operates a warehouse and distribution facility for lighting products (hereinafter "facility") located at 3399 East Raines Road, Memphis, in Shelby County, Tennessee. The facility receives, warehouses, and ships new product as part of the distribution network for Philips Lighting. The facility also routinely receives discontinued lamp products and broken lamps in damaged packaging. Some spent lamps and cleanup waste from lamps broken in routine handling are generated by inhouse operations. The Respondent is a Large Quantity Handler of Universal Waste (LQHUW) and has a facility installation identification number of TNR

4 VI. In accordance with T.C.A (b)(1), the Commissioner for purposes of enforcing any rule or regulation authorized by the Act or enforcing any requirement of the Act or order issued by the Commissioner is authorized to, at any reasonable time, enter any place where wastes (which the Commissioner has reason to believe may be hazardous) are, may be, or may have been generated, stored, transported, treated, disposed of, or otherwise handled. The facility is subject to inspection by the Commissioner under the statutory authority in the Act. Division personnel conducted pections at the Respondent's facility. As more fully set forth in the allegations contained in the numbered paragraphs below, violations of the Act and the administrative rules promulgated pursuant to the Act were discovered. Pursuant to Division policy, the Respondent was issued a Notice of Violation detailing the violations to be corrected. VII. On October 31, 2012 the Division of Solid Waste Management (DSWM) conducted a Compliance Evaluation Inspection (CEI) at the Respondent's facility. Inspectors noted a general failure to mark and close containers of lamps, as well as failure to promptly clean up debris from broken lamps. On November 27, 2012, as a result of the inspection, the Division issued a Notice of Violation (NOV) to the facility for violations of the Act and Division Rules (Rule Chapter ). The violations cited were: 1. Failure to mark or label containers of universal waste lamps. 2. Failure to containerize universal waste lamps and failure to properly close containers of waste lamps. 3

5 3. Failure to immediately clean up and containerize broken lamps and lamp residue. VIII. On December 18, 2012 the Respondent submitted to the Division a letter describing the steps the facility had taken to correct violations observed during the CEI. The Respondent stated that each stretch-wrapped pallet would be labeled on two sides when assembled and that each drum would be labeled prior to placing lamps in the drum. In a subsequent telephone conversation, the Respondent clarified that each individual box of sorted lamps would be labeled prior to placing on pallets, except for pallets which had never been broken since shipment as product. To address open and un-containerized lamps, the Respondent stated that drum lids would be on drums and would be sealed with a locking ring prior to placing on a truck for off-site shipment, In a subsequent telephone conversation, the Respondent clarified that lids would be closed with a ring-clamp device unless actively adding lamps to the drum. To address cleanup of broken lamps the Respondent stated that procedures would be evaluated to incorporate extra precautions to prevent breakage and that spills would be cleaned up immediately in the future. Ix. On February 14, 2013 the Division issued a letter stating that the cited violations had been adequately addressed and returned to compliance. The letter also stated that the practice of labeling intact shrink-wrapped pallets of lamps would be further addressed at the Show Cause Meeting. 4

6 X. On April 11, 2013 the Division conducted a Show Cause meeting with the Respondent's representatives to discuss the alleged violations. The meeting included a discussion of the Respondent's operating procedures for making waste determinations and for packaging for off-site shipments of universal waste lamps. The Respondent's representatives did provide evidence and/or documentation to mitigate, but not prevent, enforcement action against the Respondent and did provide information on changes that should prevent recurrence of the violations. XL As a result of the investigation of the Respondent's facility, necessitated by the conditions described above, the Division has incurred DAMAGES in the amount of TWO THOUSAND FIVE HUNDRED FIFTY-FOUR DOLLARS AND TWENTY-SIX CENTS ($2,554.26). VIOLATIONS XII. By failure to mark or label containers of universal waste lamps, the Respondent has failed to comply with Division Rule (3)(e)5. This is a violation of T.C.A., (4). During the CEI on October 31, 2012 the DSWM inspector observed the Sorting Area, where lamps are sorted as to usable product or waste. Facility personnel stated that sorting activity had been recently re-located to this area to make room in a previous area for a new business. The previous area was marked with striped lanes to organize various lamps types for sorting, but the new area had not been so delineated. The area being used during the inspection was filled with stacks of lamps 5

7 in a variety of boxes and cartons in various states of condition. The DSWM inspector observed seven 55-gallon drums of broken lamps in this area, three of which were not marked or labeled as universal waste. At the outside loading dock, the DSWM inspector also observed numerous boxes of universal waste fluorescent lamps, none of which were labeled or marked, loaded on a trailer destined for out-of-state shipment. T.C.A (4) provides: It is unlawful to: (4) Store, containerize, label, transport, treat or dispose of hazardous waste, or fail to provide information in violation of the rules, regulations, or orders of the Commissioner or Board, or in such a manner as to create a public nuisance or a hazard to the public health. Division Rule (3)(e)5. states: (3) Standards for Large Quantity Handlers of Universal Waste Labeling/Marking A large quantity handler of universal waste must label or mark the universal waste to identify the type of universal waste as specified below: Universal waste lamps (i.e., each lamp), or a container or package in which such lamps are contained must be labeled or marked clearly with any one of the following phrases: "Universal Waste - Lamp(s)", or "Waste Lamp(s)", or "Used Lamp(s)" or "Universal Waste - Bulbs(s)" or "Waste Bulb(s)" or "Used Bulb(s)". Containers or packages destined for out-of-state shipment shall use the term "Lamps" in lieu of "Bulbs", XIII. By failure to containerize universal waste lamps and failure to properly close containers of waste lamps, the Respondent has failed to comply with Division Rule (3)(d)4.(i)(I). This is a violation of T.C.A (4). During the CEI on October 31, 2012 the DSWM inspector observed the Sorting Area, where lamps 6

8 are sorted as to usable product or waste. The area was filled with stacks of lamps in a variety of boxes and cartons in various states of condition. The DSWM inspector observed seven 55-gallon drums of broken lamps in this area, two of which were open, in addition to two open cardboard boxes of broken lamps. At the outside loading dock, the DSWM inspector also observed open containers of universal waste fluorescent lamps and six loose, un-containerized lamps loaded on a trailer destined for out-of-state shipment. Division Rule (3)(d)4.(i)(I) states: (3) Standards for Large Quantity Handlers of Universal Waste (d) Waste Management 4. Universal Waste - Lamps. (i) A large quantity handler of universal waste must manage lamps in a way that prevents releases of any universal waste or component of a universal waste to the environment as follows: (1) A large quantity handler of universal waste must contain any lamp in containers or packages that are structurally sound, adequate to prevent breakage, and compatible with the contents of the lamps. Such containers and packages must remain closed and must lack evidence of leakage, spillage or damage that could cause leakage under reasonably foreseeable conditions. XIV. By failure to immediately clean up and containerize broken lamps and lamp residue, the Respondent has failed to comply with Division Rule (3)(d)4.(i)(11). This is a violation of T.C.A (4). During the CEI on October 31, 2012 the DSWM inspector observed the Sorting Area, where lamps are 7

9 sorted as to usable product or waste. The area was filled with stacks of lamps in a variety of boxes and cartons in various states of condition. The DSWM inspector observed evidence of broken fluorescent lamps on the concrete floor of the facility near the drums of broken universal waste lamps, in addition to shards of glass and powder residue from broken lamps on and around the wood pallets supporting the drums. At the time of inspection, the facility had failed to immediately clean up the debris. Division Rule (3)(d)4.(i)(II) states: (3) Standards for Large Quantity Handlers of Universal Waste (d) Waste Management 4. Universal Waste - Lamps. (i) A large quantity handler of universal waste must manage lamps in a way that prevents releases of any universal waste or component of a universal waste to the environment as follows: (II) A large quantity handler of universal waste must immediately clean up and place in a container any lamp that is broken and must place in a container any lamp that shows evidence of breakage, leakage, or damage that could cause the release of mercury or other hazardous constituents to the environment. Containers must be closed, structurally sound, compatible with the contents of the lamps and must lack evidence of leakage, spillage or damage that could cause leakage or releases of mercury or other hazardous constituents to the environment under reasonably foreseeable conditions. ORDER AND ASSESSMENT XV. WHEREFORE, PREMISES CONSIDERED, pursuant to the authority vested by T.C.A and T.C.A , I, Patrick J. Flood, after proper

10 consideration of the harm done to the public health or the environment, the economic benefit gained by the Respondent, the amount of effort put forth by the Respondent to attain compliance, and any unusual or extraordinary costs incurred by the Commissioner, hereby issue the following ORDER AND ASSESSMENT: The Respondent shall fully comply and henceforth maintain compliance with the Act and Division Rules. 2. The Respondent is hereby assessed DAMAGES in the amount of TWO THOUSAND FIVE HUNDRED FIFTY-FOUR DOLLARS AND TWENTY- SIX CENTS ($2,554.26) to be paid to the State within thirty (30) days of the receipt of this ORDER. 3. The Respondent is hereby assessed a CIVIL PENALTY in the amount of FIFTEEN THOUSAND DOLLARS AND NO CENTS ($15,000.00) to be paid to the State within thirty (30) days of the receipt of this ORDER. 4. Payment of the CIVIL PENALTY and DAMAGES should reference Case No. Frwm , be made payable to the "Treasurer, State of Tennessee" and sent to the Division of Fiscal Services Consolidated Fee Section, 14 th Floor L&C Tower, 401 Church Street, Nashville, Tennessee

11 RESERVATION OF RIGHT In issuing the foregoing ORDER AND ASSESSMENT, the Director does not implicitly or expressly waive any provisions of the. Act or regulations promulgated thereunder or the authority to assess the Respondent for liability for costs, expenditures, civil penalties and/or damages incurred by the State. The right to order further corrective action and to pursue further enforcement action is also specifically reserved. Compliance with the provisions of this ORDER AND ASSESSMENT will be considered as a mitigating factor in determining the need for future enforcement action(s). Issued this day of dr, 2013, in the Office of the Director of the Division of Solid Waste Management, Tennessee Department of Environment and Conservation. Patrick J. Flo d, Director Division of 'd Waste Management Tennessee Department of Environment and Conservation NOTICE OF RIGHTS Tennessee Code Annotated and , allow the Respondent to secure review (appeal) of this Order and Assessment. To do so, a written petition setting forth the grounds (reasons) for requesting a hearing before the Solid Waste Disposal Control Board must be RECEIVED by the Department within THIRTY 10

12 (30) DAYS of the date the Respondent received this Order and Assessment or it will become final (not subject to review), Artificial Respondents (corporations, limited partnerships, limited liability companies, etc.) cannot engage in the practice of law. They may pursue an appeal before the Solid Waste Disposal Control Board only through an attorney licensed to practice law in Tennessee. Natural Respondents may represent themselves or be represented by an attorney licensed to practice law in Tennessee. Low-income individuals may be eligible for representation at no cost or reduced cost through a local bar association or legal aid organization. Any hearing of this case before the Board will be a contested case hearing governed by T.C.A et seq. (the Uniform Administrative Procedures Act) and the Department of State's Uniform Rules of Procedure for Hearing Contested Cases Before State Administrative Agencies. Such hearings are in the nature of a trial before the Board sitting with an Administrative Law Judge. The Respondent may subpoena witnesses to testify, At the conclusion of a hearing the Board has the authority to affirm, modify, or deny the Order and Assessment. This includes the authority to modify the penalty within the statutory confines of up to $50,000 per day per violation. Furthermore, the Board has the authority to assess additional damages incurred by the Department including, but not limited to, all docketing expenses associated with the setting of the matter for a hearing and the hourly fees incurred due to the presence of an administrative law judge and a court reporter.

13 Any petition for review (appeal) must be directed to Patrick J. Flood, Director, Division of Solid Waste Management, Department of Environment and Conservation, 401 Church Street, 5 th Floor L&C Tower, Nashville, Tennessee Payments of the civil penalty shall be made payable to the "Treasurer, State of Tennessee" and sent to the Division of Fiscal Services - Consolidated Fees Section, Tennessee Department of Environment and Conservation, 14 th Floor L&C Tower, 401 Church Street, Nashville, Tennessee All other correspondence shall be sent to Elizabeth A. Cates, L & C Tower, 5 th Floor, 401 Church Street, Nashville, TN , or call (615) The case number should be written on all correspondence regarding this matter. Elizab A. Cates Enforcement Section Division of Solid Waste Management Tennessee Department of Environment and Conservation 12