STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2018-25181-H |
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Covanta Environmental Solutions, LLC, |
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Respondent. |
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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 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 Covanta Environmental Solutions,
LLC (“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. INR 000 127 621 located at 5625
Old Porter Rd., in Portage, Porter 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:
Mr.
Kris Roedel, Operations Manager |
CT
Corporation System |
Covanta
Environmental Solutions, LLC |
Registered
Agent for |
5625
Old Porter Rd. |
Covanta
Environmental Solutions, LLC |
Portage,
IN 46368 |
150
West Market Street, Suite 800 |
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Indianapolis,
IN 46204 |
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Mr.
Paul Stauder, President |
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Covanta
Environmental Solutions, LLC |
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445
South Street |
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Morristown,
NJ 07960 |
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5.
Respondent notified EPA of Conditionally Exempt
Small Quantity Generator and Hazardous Waste Transfer facility activities.
6.
On July 7, 2016
Cargill Incorporated (“Cargill”) located in Hammond, Lake County had a sulfuric
acid tank leak. Cargill determined that
the leaked sulfuric acid and all the sulfuric acid remaining in the tank was no
longer food safe. Cargill contacted
Advance Waste Services, LLC (“AWS”), which merged with Respondent on December
6, 2016, and is now part of Covanta Environmental Solutions, LLC, to determine
if the sulfuric acid may be utilized at their treatment facilities for chemical
precipitation of wastewater contamination, pH adjustment and oil/water
separation. On July 8, 2016 the sulfuric
acid was transferred into five (5) IBC totes (1,273 gallons) and transported by
Advanced Waste Carriers, Inc., to Respondent’s facility located in Portage,
Indiana. Three (3) sulfuric acid rinstate totes (250 gallons or 3,857 pounds) were also
generated from cleaning the spilled area and remained at the Cargill facility.
After further evaluation of the sulfuric
acid it was determined that it was not suitable as a substitute for a
commercial product. Respondent shipped
the five (5) totes of sulfuric acid back to Cargill on a bill of lading on
December 15, 2016. Cargill had the totes
manifested to a permitted treatment, storage, and disposal facility as a hazardous
waste (D002) on December 15, 2016. The
total amount shipped increased to 1,400 gallons because Respondent needed to
rinse out its truck and the rinstate was added to the
totes.
7.
329 Indiana Administrative Code (“IAC”) 3.1
incorporates certain 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 January 4, 2018 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 329 IAC 3.1-6-2(2),
Respondents 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. An
example of appropriate documentation is a contract showing that a second person
uses the material as an ingredient in a production process. In addition, owners and operators of
facilities claiming that they are actually recycling materials must show that
they have the necessary equipment to do so.
As noted during the inspection,
Respondent was unable to provide documentation meeting the terms of the
exclusion/exemption demonstrating the sulfuric acid was not a waste and was
acceptable as an effective substitute for a commercial product pursuant to 40
CFR 261.2(e)(ii).
Specifically, Respondent provided a
Waste Certification Statement between Respondent and AWS, which described the
material as Sulfuric Acid for Reuse, however, the Waste Certification Statement
did not indicate the known market or disposition of the material. Respondent failed to demonstrate that the
second person who uses the material has a known use for the material as an
effective substitute for a commercial product pursuant to 40 CFR 261.2(e).
b. Pursuant to 40 CFR 262.20, a generator
who transports or offers for transportation hazardous waste for off-site treatment,
storage, or disposal must prepare a manifest.
A generator must ensure that manifests are fully filled out and contain
accurate information. A generator must
designate on the manifest one facility which is permitted to handle the waste
described on the manifest.
As noted during the inspection,
Respondent accepted waste from Cargill on July 8, 2016. Respondent directed the shipment of the hazardous
waste (D002) back to Cargill on December 15, 2016 utilizing a
bill-of-lading. Cargill is not permitted
to accept hazardous waste.
c.
Pursuant to IC 13-30-2-1(11) and (12), a person
may not deliver any hazardous waste to a hazardous waste facility that is not
approved or does not hold a permit from the department, or 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 allowed the transportation of five (5) totes of sulfuric acid (D002)
to a facility that is not approved or does not hold a permit from the
department. Specifically, Respondent
accepted waste from Cargill on July 8, 2016.
Respondent directed the shipment of the hazardous waste (D002) back to
Cargill on December 15, 2016 utilizing a bill-of-lading. Cargill is not permitted to accept hazardous
waste.
d.
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 received hazardous waste identified or listed
in 40 CFR Part 261 without a permit.
Specifically, Respondent received material, sulfuric acid, that was
claimed to be material for reuse, excluded under 40 CFR 261.2(e). This material was not reused as a substitute
commercial chemical product, but was disposed of as a hazardous waste, negating
the exclusion. Respondent therefore
received hazardous waste (D002), but is not permitted for this activity.
e. 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 activity on the approved forms.
As noted
during the inspection, Respondent failed to notify the Commissioner of
hazardous waste storage activities. Specifically,
Respondent accepted five (5) totes of sulfuric acid (D002) from off-site. Respondent is not permitted to accept
hazardous waste from off-site.
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 failed to obtain a permit for hazardous waste
storage activities. Specifically,
Respondent accepted five (5) totes of sulfuric acid (D002) from off-site. Respondent is not permitted to accept hazardous
waste from off-site.
9. 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 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.
3.
Upon the Effective Date, Respondent shall
comply with 329 IAC 3.1-6-2(2).
Specifically, Respondent shall, prior to accepting material which is claimed
not to be a solid waste because of an exclusion or exemption, demonstrate that
there is a known market or disposition for the material. Respondent must provide appropriate
documentation to demonstrate that the material is not a waste or is exempt from
regulation. This documentation shall be
available to IDEM upon request. An
example of appropriate documentation is a contract showing that a second person
uses the material as an ingredient in a production process. In addition, owners and operators of
facilities claiming that they are actually recycling materials must show that
they have the necessary equipment to do so.
4.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Christina Halloran, Enforcement Case
Manager |
Office of Land Quality |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
5.
Respondent is assessed and agrees to pay a
civil penalty of Fourteen Thousand Dollars ($14,000). Within thirty (30) days of the Effective Date
of the Agreed Order, Respondent shall pay a portion of this penalty in the
amount of Two Thousand Eight Hundred Dollars ($2,800). Said penalty
amount shall be due and payable to the Environmental Management Special
Fund. In lieu of payment of the remaining civil penalty, Respondent shall
perform and complete a Supplemental Environmental Project (“SEP)”. Respondent estimates that this SEP will cost
Eleven Thousand Two Hundred Dollars ($11,200). Within 60 days of
completing this SEP, Respondent shall submit written notice and documentation
to IDEM which substantiates all actions taken and costs incurred with respect
to the SEP. In the event that the cost
of the SEP is less than $11,200, Respondent shall pay the difference between
the proposed cost of the SEP and the actual cost of the SEP.
As a SEP, Respondent shall make a
donation to the “Dunes Learning Center.” Respondent shall compete this
SEP within thirty (30) days of the Effective Date. This SEP will assist
in funding the “Naturalist Intern Program.”
In the event that Respondent does not
complete the SEP within 30 days from the Effective Date, the full amount of the
civil penalty as stated in paragraph 5 above, plus interest established by IC
24-4.6-1-101 on the remaining amount, less the option 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.
6.
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 |
Office
of Legal Counsel |
IGCN,
Room N1307 |
100
North Senate Avenue |
Indianapolis, IN 46204 |
7.
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 6, above.
8.
This Agreed Order shall apply to and be binding
upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order
certify that they are fully authorized to execute this Agreed Order and legally
bind the party they represent. No change
in ownership, corporate, or partnership status of Respondent shall in any way
alter its status or responsibilities under this Agreed Order.
9.
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.
10.
Respondent shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondent shall ensure that all contractors, firms and
other persons performing work under this Agreed Order comply with the terms of
this Agreed Order.
11.
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 its obligation to comply with the requirements of its applicable
permits or any applicable Federal or State law or regulation.
12.
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.
13.
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 same violations specified in the NOV.
14.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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Date: ______________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS |
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DAY
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________________________,
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For the
Commissioner: |
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Signed
11/26/2018 By: |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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