STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2018-25010-H and
					)	2019-26443-H
					)
DAYTON fREIGHT LINES, 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 (“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 Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Dayton Freight Lines, Inc. (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (“EPA”) ID No. INR000136499, located at 11601 North Green River Road, in Evansville, Vanderburgh County, Indiana (“Site”) and with U.S. EPA ID No. INR000126789, located at 800 Commerce Parkway South Drive, in Greenwood, Johnson 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”) to:

Thomas L. Cronin Jr., President	CT Corp, Registered Agent
Dayton Freight Lines, Inc	Dayton Freight Lines, Inc.
6450 Poe Avenue, Suite 311	150 West Market Street, Suite 800
Dayton, Ohio 46414	Indianapolis, Indiana 46204

5. Respondent notified EPA of Large Quantity Generator activities for the Evansville facility on December 14, 2014 and for Conditionally Exempt Small Quantity Generator (“CESQG”) activities at the Greenwood facility in 2012.

6. Respondent operates a LTL (less than truckload) freight carrier business. Wastes are generated through spills or damages that occur during transportation processes such as loading/unloading freight, vehicle accidents, and shipping. When such damage or spill occurred with respect to hazardous cargo being transported for its customers, Respondent would comply with the requirements of the U.S. Department of Transportation (“USDOT”) under 49 Code of Federal Regulations (“CFR), Parts 171, 173 and 177. Throughout the current proceedings, Respondent has contended that IDEM’s regulations are preempted pursuant to 49 U.S.C. 5125(b) because they are inconsistent and not substantially similar to the applicable USDOT regulations related of hazardous materials damaged or released in the stream of transportation. IDEM has contended that the rules applicable in these cases are not preempted pursuant to 49 U.S.C. 5125(b) because Indiana has incorporated into the Indiana Administrative Code the federal regulations promulgated by the United States Environmental Protection Agency at 40 CFR Parts 260 through 270 and Part 273, which cannot be pre-empted by USDOT regulations.

7. 329 Indiana Administrative Code (“IAC”) 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270 and Part 273, including those identified below.

Count I (2018-25010-H)

Evansville facility

8. 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.

9. During an investigation including an inspection on December 19, 2017 conducted by a representative of IDEM, the following violations were found:

a. 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 hazardous waste without a RCRA Part B Hazardous Waste Treatment, Storage, or Disposal (“TSD”) permit. Respondent received ignitable (D001) hazardous waste from other Dayton Freight Lines, Inc. terminals in excess of the 220 pound Conditionally Exempt Small Quantity Generator (“CESQG”) limit on two separate occasions. One shipment was two hundred twenty-five (225) pounds and the other shipment was six hundred (600) pounds.

b. 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 IDEM.

As noted during the inspection, Respondent operated a hazardous waste facility without having first obtained a RCRA Part B TSD permit from IDEM.

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 storage activities which required a RCRA Part B TSD permit.

d. Pursuant to 40 CFR 262.34(a)(2), a 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 three containers holding 288 pounds of ignitable (D001) waste paint related material and one container holding 15 pounds of (D001) contaminated waste solids with accumulation start dates.

e. Pursuant to 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 90 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 did not label or clearly mark three containers holding 288 pounds of ignitable (D001) waste paint related material and one container holding 15 pounds of (D001) contaminated waste solids with the words "Hazardous Waste."

f. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.51, a generator must have a contingency plan for the facility.

As noted during the inspection, Respondent did not have a contingency plan on-site which meets the RCRA requirements for Large Quantity Generators.

IDEM received a contingency plan on May 10, 2018 and revised pages on June 21, 2018. IDEM reviewed the plan and determined it to be adequate.

g. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a), (b), & (c), facility personnel must complete a program of classroom instruction 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 employees involved with managing hazardous waste with initial and annual hazardous waste training which meets the RCRA requirements for LQGs.

Count II (2019-26443-H)

Greenwood facility

10. 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.

11. During an investigation including an inspection on August 13, 2019 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 the waste is a hazardous waste.

As noted during the inspection, Respondent did not make waste determinations at the Site. Respondent sent damaged products to its facility in Evansville, Indiana to undergo waste determinations by a third party waste management vendor, U.S. Ecology, hired by Respondent.

b. Pursuant to 329 IAC 3.1-6-2(2), Respondents in actions to enforce regulations implementing IC 13 who raise a claim that a certain material is not a solid waste, or is conditionally exempt from regulation, must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption. In doing so, they must provide appropriate documentation to demonstrate that the material is not a waste or is exempt from regulation. In addition, owners or operators of facilities claiming that they actually are recycling materials must show that they have the necessary equipment to do so.

As noted during the inspection, Respondent did not manage damaged products as hazardous waste at the Site. The damaged products were sent to Respondent’s facility located in Evansville, Indiana. Respondent was unable to provide documentation demonstrating there is a known market for damaged products.

c. Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility must notify the Commissioner of its hazardous waste generator activity on the approved forms.

As noted during the inspection, Respondent failed to notify the Commissioner of Small Quantity Generator (“SQG”) activities. In 2012, Respondent notified as a CESQG. At the time of the inspection, Respondent was operating as an SQG.

d. Pursuant to 40 CFR 262.20, a generator who transports, or offers for transportation, hazardous waste for offsite treatment, storage, or disposal, must prepare a manifest. A generator must designate on the manifest one facility which is permitted to handle the waste described on the manifest. A generator may designate an alternate facility to handle his waste in the event that an emergency prevents delivery of the waste to the primary designated facility.

As noted during the inspection, Respondent transported hazardous waste for offsite treatment, storage, or disposal without preparing manifests. Respondent transported SQG quantities of hazardous waste to its facility located in Evansville on bills of lading.

e. Pursuant to IC 13-30-2-1(12), a person may not cause or allow the transportation of a hazardous waste without a manifest if a manifest is required by law.

As noted during the inspection, Respondent transported hazardous waste for offsite treatment, storage, or disposal without preparing manifests. In 2018, Respondent transported SQG quantities of hazardous waste to its facility located in Evansville on bills of lading following the USDOT regulations referenced in paragraph 6 of this Order.

f. Pursuant to 40 CFR 268.7(a), a generator must determine if a hazardous waste is restricted from land disposal and if the waste has to be treated before being land disposed. This is done by determining if the hazardous waste meets the treatment standards in 40 CFR 268.40, 40 CFR 268.45, or 40 CFR 268.49. This determination can be made in either two ways: testing the waste or using knowledge of the waste. With the initial shipment of hazardous waste (meeting or not meeting the treatment standards in 40 CFR 268.40 and 40 CFR 268.42) the generator must send a one-time written notice to each treatment, storage, or disposal facility receiving the waste, and place a copy in the file. No further notification is necessary until such time that the waste or facility change, in which case a new notification must be sent and a copy placed in the generator’s file.

As noted during the inspection, Respondent did not transport hazardous waste to a permitted treatment, storage, or disposal facility; therefore, a one-time land ban notification and certification was not provided with the initial shipment of hazardous waste as required.

g. Pursuant to IC 13-22-4-3.1(b), a hazardous waste SQG, i.e., a person that generates, in any one or more calendar months of a calendar year:

a) more than one hundred (100) kilograms but less than one thousand (1,000) kilograms of hazardous waste;

b) less than one (1) kilogram of acute hazardous waste; or

c) less than one hundred (100) kilograms of material from the cleanup spillage of acute hazardous waste; or

accumulates at least one thousand (1,000) kilograms of hazardous waste or less than one (1) kilogram of acute hazardous waste shall, before March 1 of each year, submit to the department on forms provided by the department, a report that summarizes the person’s hazardous waste shipments during the previous calendar year.

As noted during the inspection, Respondent did not submit a 2018 annual manifest report with respect to its Greenwood facility, although such a report was submitted to IDEM on or about February 19, 2019 with respect to the Evansville facility.

10. 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.

11. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order; provided, however, that nothing in this Agreed Order is intended to prohibit Respondent from seeking a preemption determination from the USDOT related to the interplay between the previously referenced USDOT regulations and IDEM’s applicable regulations. Likewise, nothing in this Agreed Order is intended to prohibit IDEM from participating in and contesting any preemption determination relating to its hazardous waste regulations.

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, rules, and/or permit conditions listed in the findings above. Respondent shall comply with the rules listed in the findings above or any incorporated federal equivalent thereof, as applicable.

3. Upon the Effective Date, Respondent shall comply with 40 CFR 270.1(c), IC 13-30-2-1(10), and 329 IAC 3.1-1-10. Specifically, Respondent shall ensure that it does not ship hazardous waste from other Dayton Freight Lines, Inc. terminals in excess of the 220 pound Very Small Quantity Generator (“VSQG”) limit to the Evansville facility.

4. Upon the Effective Date, Respondent shall mark each container holding hazardous waste with the accumulation start dates.

5. Upon the Effective Date, Respondent shall label or clearly mark each container holding hazardous waste with the words “Hazardous Waste.”

6. Within thirty (30) days of the Effective Date, Respondent shall submit a copy of its hazardous waste management personnel training to IDEM.

7. Upon the Effective Date, Respondent shall comply with 40 CFR 262.11. Specifically, Respondent shall make a waste determination on damaged products at the Site to determine if that waste is hazardous. If the waste is hazardous, it shall be managed according to the applicable regulations.

8. Upon the Effective Date, Respondent shall comply with 329 IAC 3.1-6-2(2). Specifically, Respondent shall demonstrate that there is a known market or disposition for damaged products. Respondent must provide appropriate documentation to demonstrate that damaged products are not waste or is exempt from regulation. This documentation shall be available to IDEM upon request.

9. Upon the Effective Date, Respondent shall comply with 40 CFR 262.20 and IC 13-30-2-1(12). Specifically, Respondent shall ensure any regulated hazardous waste offered for transportation is accompanied by a uniform hazardous waste manifest designated to a permitted treatment, storage, or disposal facility.

10. Upon the Effective Date, Respondent shall comply with 40 CFR 268.7(a). Specifically, Respondent shall ensure with the initial shipment of hazardous waste (meeting or not meeting treatment standards) that a one-time written notice is sent to each treatment, storage, and disposal facility receiving the waste. Additionally, Respondent shall keep a copy of the written notice on file.

11. Upon the Effective Date, Respondent shall ensure future shipments of hazardous waste to other Dayton Freight Lines, Inc. terminals in Indiana do not exceed the 220 pound VSQG limit.

12. Within thirty (30) days of the Effective Date, Respondent shall comply with 329 IAC 3.1-1-10. Specifically, Respondent shall submit notification of its hazardous waste activity occurring on or after the Effective Date on the approved forms to IDEM’s Regulatory Reporting Section, and shall notify that Section if ever there is any change to its status.

13. Within thirty (30) days of the Effective Date, Respondent comply with IC 13-22-4-3.1(b). Specifically, Respondent shall submit an annual manifest report for 2018 for the Greenwood facility, including the ID Form and the Form OS. The Form OS and instructions for instructions to the ID Form and Form OS can be obtained from IDEM’s website at http://www.in.gov/idem/landquality/2373.htm. Both the Form OS and the ID Form can be obtained upon request at:

Indiana Department of Environmental Management

Regulatory Reporting Section

100 North Senate Avenue

Indianapolis, IN 46204-2251

14. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Debbie Chesterson, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

15. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Twenty- Thousand Eight Hundred Dollars ($20,800). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

16. Civil penalties are payable by check to the “Environmental Management

Special Fund.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

17. 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 interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund and shall be payable to IDEM in the manner specified in Paragraph 18, above.

18. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

19. 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.

20. 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.

21. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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[s] may incur as a result of such communications with the U.S. EPA or any other agency or entity.

27. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By				By: _________________________
	Jennifer Reno, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date:				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	_____________________, 20_____.
				For the Commissioner:
				Signed on 8/25/20
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality