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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No.
2014-22479-H |
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My-way trading, inc. dba |
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diversified green solutions, |
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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 My-Way Trading, Inc. dba
Diversified Green Solutions (“Respondent”), which owns/operates the company
located at 308 NW F Street, in Richmond, Wayne 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.
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Mr. Seth A. Smith, President |
Mr.
Seth A. Smith, Registered Agent |
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My-Way
Trading, Inc. |
My-Way
Trading, Inc. |
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dba
Diversified Green Solutions |
dba
Diversified Green Solutions |
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4954
Meadowcrest Lane |
308
NW F Street |
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New
Paris, OH 45347 |
Richmond,
IN 47374 |
5.
Respondent is primarily a plastic recycler at
this location. Plastics are recycled by being shredded, ground, and pelletized
onsite and some plastics are taken off site to be recycled. Other media and wastes are
managed and recycled in lesser quantities. Respondent also conducts other services that
includes but not limited to waste management consulting.
6.
Respondent was issued
a Violation Letter dated November 12, 2013 requesting a waste determination for
the contents of two semi-trailers received from offsite on September 20, 2013.
7.
Respondent accepted two (2) semi-trailers
containing a variety of waste. The
wastes consisted of small containers of unused liquid automobile related fluids
such as cleaners, flushes, conditioners, additives, and supplements. The Bill
of Lading which accompanied the shipment indicated that Multi-Pack Atlanta,
Winder, Georgia initiated the shipment to be transported to Quality Farms in
Ohio however Respondent diverted the shipment to its facility in Richmond, Indiana.
8.
Respondent stated that the material will be used for beneficial reuse as a product. However, at the time of and following the
inspection, Respondent could not demonstrate documentation that there is a known
beneficial reuse for this material in order for it to be
excluded from regulation as a solid and hazardous waste. It was noted in the
October 23, 2013 inspection report that some of the material is characteristic
for ignitability (D001). Respondent was informed pending the disposition of the material it
would be subject to all applicable regulatory requirements.
9.
One
trailer was transported to Bee Environmental Management, Inc. (Bee)
located at 688 Tower Road, Plainfield, Indiana, on April 23 and the other on
April 24, 2014 on non-hazardous waste
manifests indicating Respondent as the generator.
10.
As a result of further investigation by IDEM
into the disposition of the trailer contents, Respondent was
issued a Referral to Land Enforcement Letter dated July 1, 2014. The waste was transported
from Bee to Tier Environmental, Bedford, Ohio on a hazardous waste manifest
indicating Multi-Pack Atlanta as the generator.
A copy of the final hazardous waste manifest was
obtained with the assistance of the Ohio EPA indicating 522 gallons was
non regulated mineral oil, 523 gallons was corrosive (D002) hazardous waste,
and 4,675 gallons was ignitable (D001) hazardous waste.
11.
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.
12.
During an investigation including an
inspection on October 23, 2013 and an
ongoing record review conducted by a representative of IDEM, the following
violations were found:
a.
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 a hazardous waste determination on the contents of two semi-trailers
that contained 65,485 pounds of waste which had been onsite since September 20,
2013. Approximately 64% of the loads
contained a petroleum distillate with a flash point of 122 degrees F, based on
MSDS and an inventory list. Respondent
stated the material was going to be reused as a
product although no documentation was available to confirm.
The material in the trailers were
intended to be shipped from Multi-Pack Atlanta to Quality Farms for a
beneficial reuse/continued application however the trailers were diverted to
Respondent’s facility.
Upon further investigation by IDEM it was found that Respondent shipped the trailers, one on April
23 and the other on April 24, 2014, to Bee.
Both shipments were transported on a non-hazardous
waste manifest to Bee to be bulked.
Respondent sent Bee a hazardous waste manifest on May 20, 2014
instructing Bee to sign the generator/offeror signature on the hazardous waste
manifest on behalf of Respondent. The
waste was transported to Tier Environmental on May 21,
2014. The hazmat bill of lading
identifies Bee as the shipper. The
hazardous waste manifest identifies Multi-Pack Atlanta as the generator and
Tier Environmental as the designated facility.
The hazardous waste manifest indicated that 4,675 gallons of waste
flammable liquids (petroleum distillates, 2-butoxyethanol) with the ignitable
characteristic code of D001 and the remainder was 1,045 gallons of
non-regulated, mineral oil. With the
assistance of the Ohio EPA, IDEM received a copy of the hazardous waste
manifest with the designated facilities signature. Tier Environmental noted a discrepancy that
indicates 523 gallons of the non-regulated mineral spirits was actually a
regulated D002 corrosive hazardous waste with a pH of 1.
b.
Pursuant to
329 IAC 3.1-6-2(2), Respondents in actions to enforce regulations
implementing IC 13 who raise a claim that a certain material is not a solid
waste, or is conditionally exempt from regulation, must demonstrate that there
is a known market or disposition for the material and that they meet the terms
of the exclusion or exemption. In doing so, they must provide appropriate
documentation to demonstrate that the material is not a waste or is exempt from
regulation. An example of appropriate documentation is a contract showing that
a second person uses the material as an ingredient in a production process. In
addition, owners or operators of facilities claiming that they actually are
recycling materials must show that they have the necessary equipment to do so.
As noted during the inspection,
Respondent was not able to demonstrate by providing the appropriate
documentation that the material on the two trailers were not wastes, or that
they were exempt from regulation.
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 and
record review, Respondent failed to notify the Commissioner of hazardous waste
generator and storage activities.
Respondent diverted two semi-trailers that were to be
shipped from Multi-Pack Atlanta to Quality Farms for reuse. Respondent at this time took responsibility
for the contents in the trailers including being the generator and stored the
trailers onsite for greater than 7 months.
d.
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 and
record review, Respondent stored hazardous waste identified or listed in 40 CFR
Part 261 without a permit. Specifically,
two semi-trailers were stored onsite for greater than seven months. The trailers consisted of 522 gallons of
non-regulated mineral oil, 4,675 gallons of ignitable waste (D001) (petroleum
distillates, 2-butoxyethanol) and 523 gallons of corrosive waste (D002).
e.
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.
Respondent stored two semi-trailers of
hazardous waste (D001, D002) for greater than seven months. Respondent
intercepted two semi-trailers shipped from Multi-Pack Atlanta that were
destined to be shipped to Quality Farms for reuse.
f.
Pursuant to 40 CFR 264.1, owners and
operators of hazardous waste treatment facilities which treat, store, or
dispose of hazardous waste shall comply with the applicable requirements of 40
CFR 264.
As noted during the inspection and
record review, Respondent stored hazardous waste identified or listed in 40 CFR
Part 261 without a permit. Specifically,
two semi-trailers were stored onsite for greater than seven months. The trailers consisted of 522 gallons of
non-regulated mineral oil, 4,675 gallons of ignitable waste (D001) (petroleum
distillates, 2-butoxyethanol) and 523 gallons of corrosive waste (D002).
g.
Pursuant to 40 CFR 262.12(c), a generator
must not offer its hazardous waste to transporters or to treatment, storage, or
disposal facilities that have not received an EPA identification number.
As noted during the inspection,
Respondent sent its hazardous waste to Bee who does have an EPA ID No. but Bee is not notified as a permitted RCRA hazardous waste
facility.
h.
Pursuant to 40 CFR 262.20, a generator who
transports, or offers for transportation, hazardous waste for offsite
treatment, storage, or disposal, must prepare a manifest. A generator must designate on the manifest
one facility which is permitted to handle the waste
described on the manifest. A generator
may designate an alternate facility to handle his waste in the event that an
emergency prevents delivery of the waste to the primary designated facility.
As noted during the inspection and
record review, Respondent offered hazardous waste for transportation for
offsite treatment, storage, or disposal without preparing a manifest. Specifically, Respondent offered D001 and
D002 hazardous waste to Bee without preparing a hazardous waste manifest. Furthermore, Bee is not a permitted hazardous
waste facility authorized to receive or store hazardous waste. Bee is notified as a
hazardous waste transporter and transfer facility.
i.
Pursuant to IC 13-30-2-1(12), a person may
not cause or allow the transportation of a hazardous waste without a manifest
if a manifest is required by law.
As noted during the inspection and
record review, Respondent caused or allowed the transportation of a hazardous
waste without a manifest as required by law.
Specifically, Respondent offered D001 and D002 hazardous waste to Bee
without preparing a hazardous waste manifest.
Furthermore, Bee is not a permitted hazardous waste facility authorized
to receive or store hazardous waste. Bee
is notified as a hazardous waste transporter and
transfer facility.
j.
Pursuant to 40 CFR 268.7(a), a generator must
determine if a hazardous waste is restricted from land disposal and if the
waste has to be treated before being land disposed. With the initial shipment of waste to each
treatment, storage, disposal facility, a generator must send a one-time written
notice to each facility receiving the waste and place a copy in the file.
As noted during the inspection and
record review, Respondent offered for transport D001 and D002 hazardous waste
without a written one time land ban notice to Bee the receiving facility. The hazardous waste eventually was sent to Tier Environmental, a permitted treatment,
storage, disposal facility, from Bee with a onetime land ban notice but it did
not address the D002 corrosive waste.
13. 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,
rules, and/or permit conditions listed in the findings above.
3.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.11. Specifically,
Respondent shall ensure that a proper waste determination is
provided for each solid waste generated at the Site.
4.
Upon the Effective Date, Respondent shall
comply with 329 IAC 3.1-6-2(2).
Specifically, Respondent shall ensure when a claim is
made that a certain material is not a solid waste, or is conditionally
exempt from regulation the proper documentation demonstrating that there is a
known market (such as contracts showing that a second person uses the material
as an ingredient in a production process) is available upon request.
5.
Upon the Effective Date, Respondent shall
ensure compliance with 40 CFR 262.20 and IC 13-30-2-1(12). Specifically, Respondent shall not allow the
transport of hazardous waste without a manifest.
6.
Upon the Effective Date, Respondent shall not
store hazardous waste onsite without complying with the applicable 40 CFR 264
and 40 CFR 270 requirements.
7.
Upon the Effective Date, Respondent shall
ensure that waste transported to their facility or waste transported by
Respondent is accompanied with the proper Bill of
Lading and/or manifest as required by the appropriate applicable regulations.
8.
Upon the Effective Date, Respondent shall
obtain the proper EPA Identification number if Respondent plans to transport or
generate hazardous waste in the future.
9.
Upon the Effective Date, Respondent shall
ensure compliance with 40 CFR 268.7(a).
Specifically, Respondent shall ensure that a land ban one-time notice
with all the proper waste codes are provided with each
initial shipment to each treatment, storage, disposal facility receiving the
waste and a copy placed in the file.
10. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by
IDEM, shall be sent to:
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Christina Halloran, Enforcement Case
Manager |
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Office of Land Quality |
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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 |
11.
Respondent is assessed
and agrees to pay a civil penalty of Ten Thousand Two Hundred Dollars ($10,200). Said penalty amount shall be due and payable
to the Environmental Management Special Fund in ten (10) consecutive installments;
nine (9) installments of $1,000 each and the last installment of $1,200. The first installment shall be due thirty
(30) days of the Effective Date; the next consecutive installments shall be due
on or before the last day of each month following the first installment. 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”.
12.
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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$500/week |
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$500/week |
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$500/week |
13.
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.
14.
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
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Cashier |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
15.
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 14, above.
16.
This Agreed Order shall apply to and be
binding upon Respondent 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 their status or
responsibilities under this Agreed Order.
17.
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.
18.
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.
19.
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 their
obligation to comply with the requirements of its applicable permits or any
applicable Federal or State law or regulation.
20.
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.
21.
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.
22.
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.
23.
This Agreed Order shall remain in effect
until Respondent pays the civil penalty in Order paragraph 11. IDEM will then issue a Resolution of Case
letter to Respondent.
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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
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Printed: ______________________ |
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Office of Land
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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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
10/30/2015 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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