STATE OF
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BEFORE THE
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ENVIRONMENTAL
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2018-25010-H
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2019-26443-H |
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DAYTON fREIGHT LINES, Inc., |
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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 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 30th 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: |
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Department of Environmental Management |
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By |
By:
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Jennifer
Reno, 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 OF |
_____________________, 20_____. |
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For the Commissioner: |
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Signed on 8/25/20 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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