STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

Republic services of Indiana llc,

Respondent.

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Case No. 2008-17696-S

 

 

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.

 

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 Republic Services of Indiana, LLC which own and/or operate the Worthington Landfill, Permit FP 28-02, located at County Road 500 N. in Greene County, Indiana (the “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) on May 12, 2008 via Certified Mail to:

 

Mr. Kevin Walbridge

Republic Services of Indiana, LLC

832 Langsdale Avenue

Indianapolis, IN 46202

 

5.         During inspections conducted by a representative of IDEM on January 29, 2008 and January 31, 2008, the following violations were found:

 

a.         Pursuant to 329 IAC 10-13-4(c), the permittee shall construct and operate a solid waste land disposal facility in accordance with the permit. The owner, operator, and permittee are equally responsible for complying with the conditions of the permit, the regulations, and statutes.

Respondent stockpiled discarded fly ash/coal slag outside the boundaries of permitted solid waste land disposal facility without protective cover and proper procedures to avert threat to the environment, and thus violated 329 IAC 10-13-4(c).

 

b.        Pursuant to 329 IAC 10-20-4(h), the owner, operator, or permittee of all MSWLFs shall not cause or allow the storage, containment, processing, or disposal of solid waste in a manner that creates a threat to human health or the environment, including the creation of air or water pollution.

Respondent caused and/or allowed the storage and containment of abandoned fly ash/coal slag in a manner that threatens human health and a nearby drinking well which is located about three hundred feet (300ft) from the coal slag storage, and thus violated 329 IAC 10-20-4(h).

 

c.         Pursuant to 329 IAC 10-20-18(a), any surface movement of leachate outside of the solid waste boundary, which is not being immediately and effectively managed, controlled, and contained is prohibited, except as specified in the MSWLF permit.

Respondent failed to immediately and effectively manage, control, and contain the leachate created by the abandoned fly ash/coal slag stockpile in violation of 329 IAC 10-20-18(a).

 

d.         Pursuant to 329 IAC 10-20-18(b), any leachate on the surface of the MSWLF must be immediately managed or controlled.

Respondent failed to immediately manage or control leachate on the surface of the MSWLF in violation of 329 IAC 10-20-18(b).

 

6.         On June 22, 2004, Respondent was granted a minor permit modification.  The permit allowed Respondent to use fly ash/coal slag as protective cover, relocate the liquid solidification pit and revise the Construction Quality Assurance Plan for synthetic material testing in accordance with GRI-GN 13 & 17 standards.

 

7.         On October 13, 2004, IDEM received Respondent’s Solid Waste Land Disposal Facility Quarterly Report which represented the last time Worthington Landfill accepted solid waste.

 

8.         On January 31, 2008, IDEM inspected the Site and found that the discarded fly ash/coal slag had been stored outside the boundaries of permitted solid waste land disposal facility for more than five (5) years.

 

9.         IDEM’s representative verified on August 25, 2008, that Respondent corrected the violations cited in the NOV issued on May 12, 2008.

 

10.       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”) three (3) business days after the date this Agreed Order is signed by the Commissioner or the Commissioner’s delegate. This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  Respondent is assessed a civil penalty of Eighteen Thousand Dollars ($18,000).  Within forty-five (45) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Three Thousand Six Hundred Dollars ($3,600).  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 Thirty Nine Thousand Nine Hundred and Seventeen Dollars and Fifty Cents ($39,917.50).  Within thirty (30) days of completing the SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all action taken and costs incurred with respect to the SEP.  In the event that the cost of the SEP is less than Twenty-Eight Thousand Eight Hundred Dollars ($28,800), Respondent shall pay fifty percent (50%) of the difference between the proposed cost of the SEP, Twenty-Eight Thousand Eight Hundred Dollars ($28,800) and the actual cost of the SEP.

 

3.                  As a Supplemental Environmental Project, Respondent shall provide equipment for loading, hauling, and disposal of flood damaged household items in Brown, Owen, and Vigo Counties. Respondent shall load, haul and dispose of the non-hazardous solid waste from Brown, Owen, and Vigo counties within three (3) months of the Effective Date of this Order.

 

4.                  Within four (4) months after the Effective Date of this Order, Respondent shall submit written documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP, including but not limited to, all cost documentation, periodic progress reports, final reports and documentation of disposal capacity provided for the clean up of the solid waste.

 

5.                  In the event that Respondent does not complete the SEP within four (4) months, the full amount of the civil penalty as stated on paragraph #2 above, 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.

 

6.                  All submittals required by this Agreed Order shall contain the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted.  Based upon my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete.  I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

 

7.                  Civil penalty is 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

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 permit 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.             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 the EPA or any other agency or entity.

 

15.             This Agreed Order shall remain in effect until Respondent complies with the terms and conditions of this Order.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Janet Arnold, Section Chief

 

Printed:

 

 

Office of Enforcement

 

Title:

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on November 14, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement