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. 2011-20538-H |
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TERRE HAUTE
MEDICAL LABORATORY, |
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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 Terre Haute Medical Laboratory, Inc., (“Respondent”),
which owns and/or operates the facility with United States Environmental
Protection Agency (EPA) ID No. INR000128892 located at 1945 N. 4th
Street, in Terre Haute, Vigo 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) via Certified Mail to:
William D. Depond,
MD, President |
Louise Topolosek,
Registered Agent for |
Terre Haute Medical Laboratory,
Inc. |
Terre Haute Medical Laboratory,
Inc. |
634 Beech Street |
634 Beech Street |
Terre Haute, IN 47804 |
Terre Haute, IN 47804 |
5.
Respondent
notified EPA of Small Quantity Hazardous Waste Generator activities on October 13,
2010.
6.
Respondent
provides laboratory, pathology, and cytology services to hospitals, clinics, doctors offices and other health care facilities.
7.
Based
on a site visit conducted by representatives of IDEM, on February 2, 2012, at the
Terre Haute Medical Laboratory at Union Hospital located at 1606 N. 7th
Street, Terre Haute, IN, Respondent is now managing the hazardous waste xylene on site in a less than 180 day accumulation
container according to 40 CFR 262.34. The waste is being manifested to a permitted
treatment, storage, disposal facility from this location as Union Hospital as
the generator. Respondent is no longer
transporting or storing this hazardous waste.
8.
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.
9.
During
an investigation including an inspection on September 22, 2011, conducted
by representatives 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 identified or listed in 40 CFR
Part 261 without a permit. Specifically, Respondent accepted off site hazardous
waste xylene (F003) to their facility which is an
unpermitted storage facility.
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 above,
Respondent operated a hazardous waste storage 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, must notify the Commissioner of its
hazardous waste activity on the approved forms.
As noted during the
investigation, Respondent failed to notify the Commissioner of hazardous waste
storage and transporter activities. Specifically,
Respondent transported non manifested five (5) gallon containers of waste xylene from an off-site generator to their facility to be
stored in their hazardous waste storage shed.
The waste xylene was then transferred into a
fifty-five (55) gallon container.
Respondent would accumulate approximately fifty-five (55) gallons of
waste xylene from off- site per month. These containers of waste xylene
would then be manifested off-site approximately every three (3) months to a
permitted treatment, storage, disposal facility.
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.
Respondent
shall comply with statutes and rules listed in the findings here and/or above
at issue.
3.
Upon
the Effective Date of this Agreed Order, Respondent shall immediately cease
transporting and storing off site hazardous waste.
4.
Upon
the Effective Date of this Agreed Order, if Respondent plans to transport
and/or store hazardous waste, Respondent must notify the Commissioner of these
activities.
5.
Upon
the Effective Date of this Agreed Order, if Respondent notifies as a
transporter and/ or hazardous waste storage facility, Respondent shall comply with
all applicable transporter and treatment, storage, disposal facility requirements.
6.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Christina Halloran, 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 Seven Thousand Dollars ($7,000). 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”.
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:
Paragraph |
Penalty |
3 |
$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 11, 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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2012. |
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For
the Commissioner: |
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Signed
03/30/2012 by |
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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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