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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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COUNTY OF MARION |
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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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v. |
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Case No. 2010-19297-H(a) |
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UNITED
TRANSPORTATION GROUP, 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 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 United Transportation
Group, Inc., which owns and/or operates a facility with U.S. EPA I.D.
981960313, located at 1150 E. 145th St. in East Chicago, Lake County, Indiana
(the “Site”).
3. Respondent operates a semi-trailer and
rail car cleaning and repair service at the Site. Respondent services five (5) to seven (7)
rail cars and/or semi-trailers per day.
4. Respondent notified the U.S. EPA of
Large Quantity Generator hazardous waste activities on October 16, 1992. Respondent also conducts transfer facility
activities at the Site.
5. Pursuant to IC 13-30-3-3, IDEM issued
an amended Notice of Violation ("NOV") via Certified Mail on November
18, 2010, to:
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Michael
Pellin, President and Registered Agent |
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United
Transportation Group, Inc. |
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1150
E. 145th St. |
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East
Chicago, IN 46312 |
6. 329 IAC 3.1 incorporates certain
federal hazardous waste management requirements found in 40 CFR Parts 260
through 270, and Part 273 including these identified below.
7. During an investigation including an
inspection on May 11, 2010, 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 mineral spirits (later determined to be a hazardous
waste identified or listed in 40 CFR Part 261) without a permit. Respondent accepted a non-RCRA empty per 40
CFR 261.7 railcar containing greater than three (3) percent by weight of the
total capacity of the railcar on or around December 8, 2009. Respondent provided information to IDEM contending
that the mineral spirits from the railcar were represented to the Respondent as
a customer owned product and re-containerized into eight (8) drums on or around
December 18, 2009. Six (6) of these
drums were transported off-site by the customer accompanied by a hazardous
waste manifest on April 28, 2010, and two (2) of these drums were transported
off-site by the customer accompanied by a hazardous waste manifest on June 22,
2010. The mineral spirits which had been
redesignated by the customer as hazardous wastes had
been stored at the pad area for greater than ten (10) days at a transfer
facility, thereby subjecting the facility to regulation under the applicable
requirements of 40 CFR Parts 264, 265, 268, and 270 for a storage facility.
On July 25, 2011,
Respondent’s consultant provided information to IDEM stating that Respondent
had held discussions with the customer who was the original generator/transporter
of the wastes noted above in this finding of fact. Based on these discussions, any heel removed
from rail cars which previously contained manifested waste are now being sent
with a manifest listing Respondent as the 2nd transporter of customer
owned waste. This occurs even for RCRA
empty cars. In all cases where the cars
are not RCRA empty, the waste is removed from Respondent’s site within ten (10)
days of receipt.
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 the
department.
As noted during the
inspection, Respondent stored two drums of customer owned mineral spirits which
were later determined to be hazardous waste, for greater than 10 days, and
therefore operated a hazardous waste facility without having first obtained a
permit from the department.
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 prior to storing two drums of customer owned mineral
spirits, which were later determined to be hazardous waste, for greater than 10
days.
d.
Pursuant
to 40 CFR 264, the owner or operator of a hazardous waste facility must follow
all applicable requirements of 40 CFR 264.
As noted during the
inspection, Respondent stored two drums of customer owned mineral spirits which
were later determined to be hazardous waste on-site and did not follow the
applicable requirements of 40 CFR 264.
e. Pursuant to 40 CFR 264.73, the owner or
operator of a hazardous waste facility must keep a written operating record at
the facility.
As noted during the
inspection, Respondent stored two drums of customer owned mineral spirits which
were later determined to be hazardous waste on-site. Respondent did not present its written
operating record at the facility.
f. 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 many
drums of Sodium Hydrosulfide which were located on and off the pad. At the time of the inspection, Respondent did
not provide adequate documentation of the drums' contents, and some of the
drums were unlabeled. An exact number of
drums requiring waste determinations was unable to be
determined because of a lack of aisle space.
g. 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 Sodium Hydrosulfide on-site, without a
permit, and did not mark Sodium Hydrosulfide containers with accumulation start
dates. Thirty four (34) 55-gallon drums,
located off of the pad area, did not have accumulation start dates placed on
them because Respondent contends that at the time of the inspection the
material was intended for recycling as a saleable product.
h. 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 Sodium Hydrosulfide on-site, without a
permit, and did not label or clearly mark all Sodium Hydrosulfide containers
with the words "Hazardous Waste."
Thirty-four (34) 55-gallon drums, located off of the pad area, and
approximately two hundred and seventy (270) 55-gallon drums, located on the pad
area, were not labeled with the words "Hazardous Waste" because Respondent
contends that at the time of the inspection the material was intended for
recycling as a saleable product.
i. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must inspect areas where containers are stored, at
least weekly, looking for leaks and deterioration caused by corrosion or other
factors.
As noted during the
inspection, Respondent failed to conduct weekly inspections of the pad area
where approximately two hundred and seventy (270) drums of Sodium Hydrosulfide were
located.
j. Pursuant to 40 CFR 262.34(a)(4)
referencing 40 CFR 265.35, a generator must maintain aisle space to allow the
unobstructed movement of personnel, fire protection, equipment, spill control
equipment, and decontamination equipment to any area of facility operation in
an emergency.
As noted during the
inspection, Respondent failed to provide the required aisle space at the pad
area where approximately two hundred and seventy (270) drums of Sodium
Hydrosulfide were located.
k. Pursuant to IC 13-30-2-1(3), no person
shall deposit any contaminants upon the land in a place and manner that creates
or would create a pollution hazard that violates or would violate 329 IAC
10-4-2.
As noted during the
inspection, Respondent deposited contaminants, including, but not limited to,
waste animal fats, greases, and oils, upon the land in a place and manner that
that creates or would create a pollution hazard that violates or would violate
329 IAC 10-4-2. A roll-off located on
the west side of the property had its materials spilled on all sides of the
container and was leaking upon the land.
l. Pursuant to 329 IAC 10-4-2, no person
shall cause or allow the storage, containment, processing, or disposal of solid
waste in a manner which creates a threat to human health or the environment,
including the creating of a fire hazard, vector attraction, air or water pollution,
or other contamination.
As noted during the
inspection, Respondent caused or allowed the disposal of solid waste in a
manner which creates a threat to human health or the environment, including the
creating of a fire hazard, vector attraction, air or water pollution, or other
contamination. A roll-off located on the
west side of the property had its materials spilled on all sides of the
container and was leaking waste animal fats, greases, and/or oils into the
environment.
8. No claim is being made by IDEM that
Respondent knowingly committed violations as described in Findings 7a. thru 7e. above.
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. Upon the Effective Date, while
operating as a transfer facility, Respondent shall cease the storage of
hazardous waste at the Site for greater than ten (10) days without first obtaining
a permit from IDEM. Any hazardous wastes
generated by Respondent shall be removed from the Site within ninety (90) days
of generation.
3. Within thirty (30) days of the
Effective Date, Respondent shall submit three (3) hard copies and one complete
copy of the entire document on CD, in PDF format no greater than 100 megabytes
per file, of a hazardous waste closure plan for the pad area where the drums which are the subject of Finding 7 a. above and
which contained waste mineral spirits were stored to IDEM for approval. This closure plan shall be completed in
accordance with the provisions of 40 CFR 264 Subpart G, as incorporated by 329
IAC 3.1-9-1.
4. Within ten (10) days of notice of
IDEM’s approval of the closure plan, Respondent shall implement the plan as
approved and in accordance with the time frames contained therein.
5. Upon the Effective Date, Respondent
shall ensure compliance with 40 CFR 262.11.
Specifically, Respondent shall ensure that a hazardous waste
determination is made on all solid wastes generated at the Site.
6. Upon the Effective Date, Respondent
shall ensure compliance with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that
the date when the accumulation begins is clearly marked and visible for
inspection on each container accumulating hazardous waste.
7. Upon the Effective Date, Respondent
shall ensure compliance with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that,
while being accumulated on-site, each container holding hazardous waste is labeled
or marked clearly with the words "Hazardous Waste."
8. Within five
(5) days of the Effective Date, Respondent shall comply with 40 CFR
265.174. Specifically, Respondent shall
conduct at least weekly inspections of all areas where containers are stored. Respondent shall submit documentation of such
to IDEM on a monthly basis for a one-year period from the Effective Date.
9. Within five
(5) days of the Effective Date, Respondent shall comply with 40 CFR
265.35. Specifically, Respondent shall
provide aisle space at all areas where containers of hazardous waste are stored
in order to allow the unobstructed movement of personnel, fire protection,
equipment, spill control equipment, and decontamination equipment to any area
of facility operation in an emergency.
Respondent shall store fifty-five (55) gallon drums or similar
containers in rows that are no more than two (2) drums high and two (2) drums
wide. Respondent shall submit
documentation of such to IDEM on a monthly basis for a one-year period from the
Effective Date.
10. Within ninety (90) days of the Effective
Date, Respondent shall, for the area impacted as a result of Finding 7 k. and
l. above, remove all visible contamination and perform confirmatory sampling
demonstrating that any contamination from the waste animal fats, greases, and
oils has been adequately removed. Within
one hundred twenty (120) days of the Effective Date, Respondent shall submit to
IDEM for approval documentation of the work performed, including sampling
results, demonstrating that any contamination which occurred as a result of
Finding 7 k. and l. above has been adequately removed.
11. In the event IDEM determines that any
plan submitted by Respondent is deficient or otherwise unacceptable, Respondent
shall revise and resubmit the plan to IDEM in accordance with IDEM's
notice. After three (3) submissions of
such plan by Respondent, IDEM may modify and approve any such plan and
Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into
this Agreed Order and shall be deemed an enforceable part thereof.
12. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
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Brenda
Lepter, Enforcement Case Manager |
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Office
of Land Quality – Mail Code 60-02L |
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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 |
13. Respondent is assessed a civil penalty of
Thirty Thousand Nine Hundred and Fifty Dollars ($30,950). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. 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.
14. In the event the terms and conditions of
the following paragraphs are violated, Complainant may assess and Respondent
shall pay a stipulated penalty in the following amount:
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Failure to comply
with Order Requirement No. 3 |
$1,000 per week |
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Failure to comply
with Order Requirement No. 4 |
$1,000 per week |
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Failure to comply
with Order Requirement No. 8 |
$500 per week |
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Failure to comply
with Order Requirement No. 9 |
$500 per week |
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Failure to comply
with Order Requirement No. 10 |
$500 per week |
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Failure to comply
with Order Requirement No. 11 |
$500 per week |
15. Stipulated penalties shall be due and
payable within thirty (30) days after Respondent receives written notice that
Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated
penalties shall not preclude Complainant from seeking any additional relief
against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, Complainant may seek any other remedies or sanctions available
by virtue of Respondent’s violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
16. Civil and stipulated 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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Cashier
– Mail Code 50-10C |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
17. 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.
18. 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.
19. 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.
20. 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(s) or any applicable
Federal or State law or regulation.
21. 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.
22. 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.
23. 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.
24. 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:
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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 COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of
Environmental Management |
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By:
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By:
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Deputy Attorney General |
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Date:
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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 |
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20___. |
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For the Commissioner: |
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Signed on April 5, 2012 |
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Bruce
H Palin |
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Assistant Commissioner |
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Office of Land Quality |
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