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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Case No. 2011-20219-H |
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ELITE ENVIRONMENTAL & SAFETY SERVICES, 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 Elite Environmental & Safety Services, Inc. (“Respondent”), which owns
and/or operates the company with United States Environmental Protection Agency
(“EPA”) ID No. INR 000020727, located at 2321 Commercial Court, Suite B, in
Evansville, Vanderburgh 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”) via Certified Mail to:
James H.
Gribbins, President |
Stephan E. Weitzel,
Registered Agent |
Elite Environmental & Safety
Services, Inc. |
Elite Environmental & Safety
Services, Inc. |
1400 E. Columbia Street |
Ziemer, Stayman, Weitzal
& Shoulders |
Evansville, IN 47711 |
20 NW First Street |
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Evansville, IN 47708 |
5. Respondent notified EPA of transporter
and transfer facility activities on September 9, 1999.
6. Respondent had been involved in a lead
abatement project in 2006 at the facility previously known in 2006 as PSI
Energy-Gibson station (currently known as Duke Energy-Gibson station), located
in Owensville, Gibson County.
7. 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.
8. During an investigation including an
inspection on April 28, 2011, 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 accepted and stored hazardous waste identified or listed
in 40 CFR Part 261 without a permit. Two
(2) drums of D008 hazardous waste which had been removed from the PSI
Energy-Gibson station facility during the lead abatement project in early 2006
were accepted at the Site and stored without a permit from early 2006 until
March of 2011.
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 operated a hazardous waste facility without having first
obtained a permit from the department.
Two (2) drums of hazardous waste were accepted at the Site and stored
without a permit from early 2006 until March of 2011.
c. 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 owned and/or operated a hazardous waste facility without
following the applicable requirements of 40 CFR 264.
d. Pursuant to 40 CFR 263.20(a)(1), a transporter may not accept hazardous waste from a
generator unless the transporter is also provided with a manifest signed in
accordance with the requirements of the applicable rule(s).
As noted during the
inspection, Respondent accepted hazardous waste in early 2006 without a
manifest. Two (2) drums of hazardous
waste were accepted and transported from the PSI-Energy-Gibson station facility
without a manifest.
e. Pursuant to 40 CFR 262, Appendix,
Uniform Hazardous Waste Manifest and Instructions, Item 15, the Generator’s/Offeror’s
certification, once signed, declares that the contents of the consignment are
fully and accurately described and are in all respects in proper condition for
transport.
As noted during the
inspection, Respondent’s representative (a party other than the named
generator’s employee or agent) signed the Generator’s/Offeror’s certification
statement on manifest no. 000034995FLE.
The contents were not fully and accurately described. Specifically, the fact that the wastes were
approximately five years old was not accurately portrayed. The manifest gives the impression that the
two (2) drums of D008 hazardous waste left PSI Energy-Gibson station on March
2, 2011, when in fact, they had been removed from PSI Energy-Gibson station
approximately five years prior. Additionally, the manifest did not provide the
current name and address for the generator listed.
9. The parties met on September 12, 2011
to discuss this matter. At that time,
Respondent indicated that employees had believed the drums were empty and that
the drums were located in a locked fenced area of the Site. Once the drums were opened, it was determined
that they contained paint chips and used tyvek.
The drums were properly transported and disposed of as hazardous
waste. Respondent has developed a
standard operating procedure to minimize the likelihood of the violations
addressed in this case from happening again.
At the conference, Respondent also presented the results of a pad
decontamination procedure which had been implemented at the area where the
drums had been stored on September 1, 2011.
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”) 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 statutes and rules listed in the findings here and/or above
at issue.
3. Upon the Effective Date, Respondent
shall ensure that it does not commence or engage in the operation of a
hazardous waste storage facility without first obtaining a permit from IDEM.
4. In the event IDEM determines that the
pad decontamination procedure conducted by Respondent on September 1, 2011 and submitted
with accompanying results to IDEM on September 12, 2011 is deficient or
otherwise unacceptable, Respondent shall implement the modifications deemed
necessary by IDEM and resubmit the results based on those modifications in
accordance with IDEM's notice.
5. Upon the Effective Date, Respondent
shall ensure compliance with 40 CFR 263.20(a)(1). Specifically, Respondent shall ensure that it
does not accept hazardous waste from a generator unless Respondent is provided
with a manifest signed in accordance with the requirements of the applicable
rule(s).
6. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
Brenda Lepter, Enforcement Case
Manager |
Office of Land Quality – Mail Code
60-02L |
Indiana Department of
Environmental Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
7. Respondent is assessed and agrees to
pay a civil penalty of Ten Thousand Dollars ($10,000). Said penalty amount shall be due and payable
to the Environmental Management Special Fund in four quarterly installments of
$2,500 each, with the first installment due within thirty (30) days of the
Effective Date; the second installment due on or before February 29, 2012; the
third installment due on or before May 31, 2012; and the final installment due
on or before August 31,
2012.
8. 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:
Failure to comply with Order Paragraph No. 4 |
$500 per week |
9. Stipulated penalties shall be due and
payable no later than the 30th day after Respondent receives written
notice that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against Respondent
for a violation of this Agreed Order; such additional relief includes any
remedies or sanctions available pursuant to Indiana law, including, but not
limited to, civil penalties pursuant to IC 13-30-4.
10. 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:
Indiana Department of Environmental
Management |
Cashier – Mail Code 50-10C |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
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
the EPA or any other agency or entity.
19. 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 COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental
Management |
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By: ________________________ |
By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
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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For
the Commissioner: |
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Signed
on January 19, 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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