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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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Complainant, |
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Case Nos. 2018-25316-H
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2018-25458-H |
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Heritage Transport 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 Heritage Transport LLC
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. INR 000 000 919 located at 1626
Research Way, in Indianapolis, Marion 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:
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Mr.
Craig G. Hogarth |
CT
Corporation System |
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Director of
Safety and Compliance |
Registered
Agent for |
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Heritage
Transport LLC |
Heritage
Transport LLC |
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7901 W
Morris Street |
150 West
Market Street, Suite 800 |
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Indianapolis,
IN 46231 |
Indianapolis,
IN 46204 |
5.
Respondent is notified as a large quantity
hazardous waste generator, universal waste handler, transporter and a less than
ten (10) day hazardous waste transfer facility.
6.
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.
7.
During an investigation including an inspection
on March 20 and 21, 2018 and a record review on May 9, 2018 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 hazardous.
As noted during the inspection,
Respondent did not make hazardous waste determinations on ten (10) containers
of unidentified waste accumulating in the Sampling Building, which contained
solid wastes generated by Respondent.
Four (4) of the ten (10) containers were
labeled hazardous waste. Three (3) of
the containers were not labeled. There was also one (1) container each labeled
as wash water, spill liquids, and wastewater spill cleanup. Respondent was unclear as to whether the
labels were accurate or how long the waste had been stored.
Respondent performed a waste
determination for the containers. The
containers were shipped for management from Respondent’s facility on March 26,
2018. Respondent submitted a response dated April 2, 2018 providing records. It was determined two (2) drums were
absorbent debris from the cleanup of a waste sludge hazardous for waste
characteristic D008 and five (5) were the absorbent debris of F006 listed
hazardous waste. Additionally, two (2)
of the drums were absorbent debris from the cleanup of a nitric acid
spill. These were determined to be
non-hazardous solid as the spilled material was solely characteristic for the
corrosive waste characteristic (D002) and one (1) drum was empty.
b. Pursuant to 40 CFR 262.34(b), a
generator who accumulates hazardous waste 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. Specifically, two (2) drums labeled hazardous
waste liquid (lead) both dated 06/22/2017 and one (1) drum labeled spill liquid
dated 06/28/2017 were stored for greater than ninety (90) days. The containers were shipped for management
from Respondent’s facility on March 26, 2018.
Documentation was provided to IDEM on April 2, 2018.
c. 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 identified or listed in 40 CFR Part 261
without a permit. Specifically, two (2)
drums labeled hazardous waste liquid (lead) both dated 06/22/2017 and one (1)
drum labeled spill liquid dated 06/28/2017 were stored for greater than ninety
(90) days.
The containers were shipped for
management from Respondent’s facility on March 26, 2018. Documentation was provided to IDEM on April
2, 2018.
d. 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 operated a hazardous waste facility without having first obtained a
permit from the department. Specifically, two (2) drums labeled hazardous
waste liquid (lead) both dated 06/22/2017 and one (1) drum labeled spill liquid
dated 06/28/2017 were stored for greater than ninety (90) days. The containers were shipped for management
from Respondent’s facility on March 26, 2018.
Documentation was provided to IDEM on April 2, 2018.
e. 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. Specifically, two (2) drums labeled hazardous
waste liquid (lead) both dated 06/22/2017 and one (1) drum labeled spill liquid
dated 06/28/2017 were stored for greater than ninety (90) days. The containers
were shipped for management from Respondent’s facility on March 26, 2018. Documentation was provided to IDEM on April
2, 2018.
f. Pursuant to 40 CFR 262.34(a)(4)
referencing 40 CFR 265.54, a facility’s contingency plan must be amended
whenever applicable regulations are revised; the plan fails in an emergency;
the facility changes its design, construction, or operation; or the list of
emergency coordinators or emergency equipment changes.
As noted during the inspection,
Respondent failed to amend the contingency plan to reflect emergency
coordinator changes.
In a submittal dated April 2, 2018,
Respondent sent a revised list of emergency coordinators to IDEM. Respondent updated the emergency coordinator
list and distributed the contingency plan to the list of contingency plan
holders on March 30, 2018.
g. Pursuant to 40 CFR 262.34(a)(4)
referencing 40 CFR 265.16(d)(1-4), certain hazardous waste training related
documents and records including job title, job descriptions, a description of
the type and amount of required training, and completion documents with respect
to the hazardous waste management training must be maintained on-site.
As noted during the inspection,
Respondent did not maintain all of the required hazardous waste training
related documents and records on-site. The records were being maintained at
Heritage Environmental Services (“HES”) located at 7901 West Morris Street in
Indianapolis, IN. Additionally, HES
plant employees working at Respondent’s location had not received training on
Respondent’s contingency plan. Respondent
conducted contingency plan training for HES plant employees on April 11, 2018
and April 12, 2018.
h. Pursuant to 40 CFR 262.34(c)(1)(ii), a
generator may accumulate as much as 55 gallons of hazardous waste in containers
at or near the point of generation without a permit and without complying with
40 CFR 262.34(a), provided that the containers are marked with either the words
"Hazardous Waste" or with other words describing the contents.
As noted during the inspection,
Respondent accumulated hazardous waste in containers at or near the point of
generation without a permit and did not properly mark satellite accumulation
containers with either the words “Hazardous Waste” or with other words
describing the contents. Specifically,
one (1) fifty-five (55) gallon container located in the Maintenance Garage was
not marked with the words “Hazardous Waste” or with other words describing the
contents.
This violation
was corrected during the inspection.
i. Pursuant to 40 CFR 263.21(a)(1), the transporter must deliver the entire quantity of
hazardous waste which he has accepted from a generator or a transporter to:
(1)
The designated facility listed on the manifest;
or
(2)
The alternate designated facility, if the
hazardous waste cannot be delivered to the designated facility because an
emergency prevents delivery; or
(3)
The next designated transporter; or
(4)
The place outside the United States designated
by the generator.
As noted during a record review on May
9, 2018, Respondent failed to deliver the entire quantity of hazardous waste
which was accepted from the generator by Respondent to the designated facility
as listed on the manifest 009644830 FLE.
The generator copy was signed by both the generator and Respondent on
10/24/2017 and was set to be delivered to Parallel Products of Kentucky. Without the knowledge or consent of the
generator, line items 9b.1 and 9b.2 of manifest 009644830 FLE were moved to a
continuation sheet for manifest 009644409 FLE.
The waste was then delivered to HES. HES was the designated facility for the
consignment identified on Uniform Hazardous Waste Manifest 009 644 409
FLE. The waste transferred from 009644830 FLE to 009644409 FLE was an
approved waste stream in accordance with the facility’s waste analysis plan,
was established as a waste stream in conjunction with the generator, and
acceptable for management at HES in accordance with its RCRA operating permit.
Based on an electronic mail inquiry from IDEM on February 21, 2018
after an inspection of the generator by IDEM on February 13, 2018, the
generator stated by electronic mail they never received notice that the waste
was being rerouted or moved to another manifest. The generator only became
aware of the change once they received the manifest back from HES that was mailed
by HES on November 3, 2017.
Respondent submitted a response dated November 29, 2018. Part of
the response included statements from the HES Project Manager and the Project
Manager’s Supervisor to IDEM explaining the events regarding this shipment
dated October 23, 2018. It explained an
error was made when preparing the manifest and HES did contact the generator
and was granted permission to change the shipping documents.
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 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 40 CFR 262.11. Specifically, Respondent
shall ensure that a proper waste determination is provided for each solid waste
generated at the Site.
4.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(b).
Specifically, Respondent shall ensure generated hazardous waste is not
stored for greater than ninety (90) days without a permit.
5.
Upon the Effective Date, Respondent shall
ensure all the required hazardous waste training related documents are
maintained on-site in accordance with 40 CFR 265.16(d)(1-4).
6.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(c)(1)(ii). Respondent shall ensure satellite
accumulation containers are properly marked with the words “Hazardous Waste” or
other words describing the contents.
7.
Upon the Effective Date, Respondent shall
comply with 40 CFR 263.21(a)(1). Specifically, Respondent shall ensure hazardous
waste accepted from a generator or another transporter is delivered to the
designated facility listed on the manifest.
8.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Christina Halloran, Enforcement Case
Manager |
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Office of Land Quality |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
9.
Respondent is assessed and agrees to pay a
civil penalty of Twenty One Thousand Dollars ($21,000). Within thirty (30) days of the Effective
Date, Respondent shall pay a portion of this penalty in the amount of Four
Thousand and Two Hundred Dollars ($4,200) to the Environmental Management
Special Fund. 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 Indianapolis, Indiana. Respondent will make a payment in the amount
of Sixteen Thousand Eight Hundred Dollars ($16,800) 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.
The Brownfield Site at which some or all
of the SEP proceeds will be spent will be determined by the Brownfields Program
for a site located in Indianapolis, 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 Indianapolis 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.
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.
Payment of the SEP is payable by check
to the "Indiana Finance Authority."
The text "SEP- Indianapolis" and the Case Numbers of this
action shall be included in the memo line of the check. The check shall be mailed to:
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Meredith Gramelspacher |
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Indiana Brownfields Program - SEP |
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100 N. Senate Avenue |
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Room 1275 |
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Indianapolis, Indiana 46204 |
10.
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:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room N1340 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
11.
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 10, above.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
Nothing in this Agreed
Order shall prevent IDEM or anyone acting on its behalf from communicating with
the 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 may incur as a result of such communications with EPA or any other
agency or entity.
19.
This Agreed Order shall remain in effect until Respondent
complies with Paragraph II.9. IDEM will issue a Resolution of Case letter to
Respondent thereafter.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Linda
McClure, Chief |
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Enforcement
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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 INDIANA FINANCE |
COUNSEL FOR RESPONDENT: |
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AUTHORITY: |
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By:_________________________ |
By:___________________________ |
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Director
& General Counsel |
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Date:_______________________ |
Date: ______________________ |
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COUNSEL &/OR AUTHORIZED |
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REPRESENTATIVE: |
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For the City of Indianapolis |
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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
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DAY
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________________________,
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For the
Commissioner: |
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Signed
11/19/2019 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
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