STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2012-20850-H
					)
HERITAGE TRANSPORT, LLC,					)
					)
Respondent.					)

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 Heritage Transport, LLC, which is a hazardous waste transporter with U.S. EPA I.D. number IND 058484114. Respondent also operates multiple hazardous waste transfer facilities, including those in East Liverpool, Ohio, Charlotte, North Carolina, and 1626 Research Way, Indianapolis, Indiana.

3. On January 9, 2012, Respondent provided IDEM with a written notice of manifest discrepancy for Manifest No. 000451102WAS. All containers originally listed on the manifest and accepted by Respondent from the first transporter for transport were not received by the designated Treatment, Storage, or Disposal Facility (“TSD”). Additionally, on February 22, 2012, Respondent provided IDEM with a written notice of manifest discrepancy for Manifest No. 000363743WAS. A container originally listed on the manifest and accepted by Respondent from the generator for transport was not received by the TSD.

4. IDEM has jurisdiction over the parties and the subject matter of this action.

5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (”NOV”) via Certified Mail to:

James C. Fehsenfeld	Thomas L. Mattix, Registered Agent for
Heritage Transport, LLC	Heritage Transport, LLC
P.O. Box 68123	5400 w. 86^th St.
Indianapolis, IN 46268	Indianapolis, IN 46268

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 April 5, 2012 and a record review on May 12, 2012, conducted by representatives of IDEM, the following violation was found:

a. Pursuant to 40 CFR 263.21, a transporter of hazardous waste must deliver the entire quantity of hazardous waste which he has accepted from the generator or a transporter to the designated facility listed on the manifest.

As noted during the inspection and record review, Respondent did not deliver the entire quantity of hazardous waste which was accepted from the generator or transporter to the designated facility listed on the manifest on two (2) separate occasions.

For Manifest No. 000451102WAS, Respondent acknowledged receipt of eighteen (18) boxes and one (1) drum of D002 hazardous waste, along with other containers of wastes, from first transporter, Environmental Transport Group, on December 9, 2011 at Respondent’s transfer station in East Liverpool, Ohio for transport to the designated TSD, Heritage Environmental Services, LLC in Indianapolis, Indiana. Environmental Transport Group had accepted the wastes using Manifest No. 000451102WAS on December 8, 2012 from generator, Avantor Performance Materials in Phillipsburg, New Jersey, and had transported them to East Liverpool. Although Respondent signed the manifest acknowledging receipt of these boxes and drum at the East Liverpool transfer facility, they were never received at the designated TSD. Respondent had made a stop at its transfer facility in Indianapolis, Indiana before transport to the TSD. Other containers accepted by Respondent from the first transporter and listed on the same manifest were received at the TSD on January 6, 2012.

For Manifest No. 000363743WAS, Respondent accepted one (1) container of D007, D008 hazardous waste from generator Curtis Wright Flight Systems in Shelby North Carolina on January 18, 2012 for transport to the designated TSD, Heritage Environmental Services, LLC in Indianapolis, Indiana; however, the drum was never received by the designated TSD. Respondent had made stops at transfer stations in Charlotte, North Carolina, East Liverpool, Ohio, and Indianapolis, Indiana. Other containers accepted from the generator and listed on the same manifest were received at the TSD on February 5, 2012.

8. The parties met on July 27, 2012 to discuss this matter. Respondent presented information stating that it has attempted to resolve the above noted discrepancies by evaluating container tracking records, by contacting each generator, parties that could have potentially received the containers, and a transportation company not related to Respondent, as well as by conducting physical searches in the ten day network to determine whether a container was inadvertently received at another facility. Respondent also stated that it has policies, procedures, and management systems in place to effectively and reasonably manage containers during the transportation process and that for the period from June 2011 through May 2012, the discrepancies noted above amount to a very small percentage (approximately 0.002 percent) of the nearly 150,000 items managed through the ten day transfer station in Indianapolis, Indiana which services the designated facility that reported the unresolved discrepancies.

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 the statutes and/or rules listed in the findings here and/or above at issue.

3. Upon the Effective Date, Respondent shall comply with 40 CFR 263.21. Specifically, Respondent shall deliver the entire quantity of hazardous waste which it has accepted from the generator or a transporter to the designated facility listed on the manifest.

4. Within sixty (60) days of the Effective Date, Respondent shall implement a refresher training program for employees at the Indianapolis, Indiana, East Liverpool, Ohio, and Charlotte, North Carolina ten day transfer stations as well as for commercial drivers employed by Respondent that provides a review of procedures and practices established by Respondent for the management of containers while-in-transit. The training shall include a review of the discrepancies noted in this enforcement action, a discussion as to what may have happened, the importance and reasons for RCRA cradle to grave requirements, as well as the consequences resulting as a result of the discrepancies.

5. Within seventy-five (75) days of the Effective Date, Respondent shall provide IDEM with notice and supporting documentation demonstrating compliance with Order Requirement No. 4 above.

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 Eighteen Thousand Dollars ($18,000). Within thirty (30) days of the Effective Date, Respondent shall pay a portion of this penalty in the amount of Three Thousand Six Hundred Dollars ($3,600) to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondent shall make a cash payment to the Indiana Finance Authority (“IFA”) to fund a Supplemental Environmental Project (“SEP”) of activities related to brownfield development at a brownfield site (“Brownfield Site”) in Indianapolis, Indiana. Respondent will make a payment in the amount of Fourteen Thousand Four Hundred Dollars ($14,400) to fund SEP activities at the Brownfield Site. Respondent shall make such payment to the IFA within thirty (30) days of the Effective Date. Payment to the IFA satisfies Respondent’s obligation to undertake a SEP to offset a portion of the civil penalty assessed in this matter. Implementation of this SEP will benefit the community by rejuvenating neighborhoods, increasing the tax base, mitigating threats to human health and the environment, and/or reducing blight.

The Brownfield Site at which some or all of the SEP proceeds will be spent is the former Crown Cleaners site located on East Washington Street in Indianapolis, Indiana. The designation of this Brownfield Site to receive the SEP proceeds is agreed upon by the Complainant, Respondent, and IFA. The IFA will account for the SEP payment and the Brownfields Program will oversee the work undertaken at the Brownfield Site funded by the SEP proceeds. If SEP proceeds remain following a determination by the Brownfields program that no additional SEP proceeds are needed at the Brownfield Site, the Brownfields Program will select another site or sites in Indianapolis at which work will be funded with the balance of the SEP proceeds. The IFA will notify IDEM’s Enforcement Case Manager when SEP-funded activities at the Brownfield Site (and any other site at which activities may be funded with SEP proceeds) are complete.

In the event that Respondent does not make its SEP payment within thirty (30) days of the Effective Date, the full amount of the civil penalty as stated in this paragraph, 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.

Payment of the SEP is payable by check to the “Indiana Finance Authority.” The text “SEP-Indianapolis” and the Case Number of this action shall be included in the memo line of the check. The check shall be mailed to:

Andrea Robertson

Indiana Brownfields Program – SEP

100 N. Senate Avenue, Room 1275

Indianapolis, Indiana 46204

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	$1,000 per week.
Failure to comply with Order Paragraph No. 5	$1,000 per week.

9. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th 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:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
COUNSEL FOR INDIANA FINANCE AUTHORITY				COUNSEL FOR RESPONDENT:
For the Indiana Brownfields Program
By: ________________________________				By: ____________________________
Assistant Director & General Counsel
Date: _______________________________				Date: __________________________
COUNSEL AND/OR AUTHORIZED
REPRESENTATIVE:
For the City of Indianapolis:
By:_________________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_________	DAY OF	________________________,	20__.
				For the Commissioner
				Signed on 11/2/2012
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality