STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

)

 

 

 

)

 

Complainant,

 

)

 

 

 

)

 

 

v.

 

)

Case No. 2014-22670-H, 2014-22672-H

 

 

)

 

Heritage-Crystal Clean, 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 owns and/or operates a company with U.S. EPA I.D. number INR 000 006 536, located at 3970 West 10th Street in Indianapolis, Marion County, Indiana (“Site 1”) known as Heritage Crystal-Clean, LLC Indianapolis Re-refinery.

 

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.

 

Ms. Catherine McCord

CT Corporation System

Heritage Crystal-Clean,  LLC

Re:  Heritage Crystal-Clean, LLC

2175 Point Boulevard, Suite 375

150 West Market Street, Suite 800

Elgin, IL 60123

Indianapolis, IN  46204

 

5.            Respondent last notified for Site 1 on April 22, 2013, as a large quantity hazardous waste generator and a used oil re-refinery and transporter.  Other activities include collection and distillation of non-hazardous parts washer solvent and collection and handling of continued use parts washer solvent with a flashpoint of less than 140 degrees.  The hazardous waste transfer activities have been moved to its Raymond Street location in Indianapolis, Indiana.

 

6.            Respondent also operates a facility known as Heritage-Crystal Clean, LLC-Wolf Lake located at 3200 Sheffield Avenue, Hammond, Indiana (“Site 2”).  The property is owned by Wolf Lake Terminal.

 

7.            Site 2 has not notified for hazardous waste activities.  Site 2 is used for tank storage.

 

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 and record review on August 22 and 25, 2014 conducted by a representative of IDEM, the following violations were found:

 

Count 1

Case No. 2014-22670-H

(Site 1)

 

a.         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.  The generator must prepare the manifest in accordance with the instructions in the appendix in 40 CFR 262.

 

As noted during the inspection, Respondent did not prepare the manifest in accordance to the instructions in the appendix in 40 CFR 262.   Specifically, Respondent accepted 45,840 pounds of D001, D039 hazardous waste generated at Site 2 on a Bill of Lading.  Respondent then prepared a manifest (001821171) indicating Site 1 as the generator of the hazardous waste in Item 5 even though the material was generated at Site 2.  Additionally, manifest numbers 002120150, 002120118, 001821148 and 001821171 did not include transporter names and identification numbers as required in Items 6 & 7 if applicable.  The total quantity of hazardous waste, Item 11, was also not included on manifest numbers 001821148 and 001821171.

 

b.         Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a), (b), & (c), facility personnel must complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in compliance with the hazardous waste management rules.  Employees must be trained within six months after their date of hire and must take part in an annual review of the initial training.

 

As noted during the inspection, Respondent did not adequately train its employees in the hazardous waste management requirements including but not limited to properly filling out a uniform hazardous waste manifest prior to transport.

 

c.         Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground tanks with the words “Used Oil.”

 

As noted during the inspection, Respondent did not label two (2) fifty-five gallon (55) containers of used oil with the words “Used Oil.”

 

The containers were properly labeled during the inspection.

 

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, Respondent stored hazardous waste identified or listed in 40 CFR Part 261 without a permit.  Specifically, Respondent accepted 45,840 pounds of D001, D039 hazardous waste on a Bill of Lading from Site 2.  Site 1 is not a notified storage facility.

 

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.

 

f.          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.

 

Count 2

Case No. 2014-22672-H

(Site 2)

 

10.       In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

 

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 investigation, Respondent did not make a proper hazardous waste determination on waste, which was a solid waste generated by Site 2.

 

b.            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 activities, and obtain numbers issued by IDEM.

 

As noted during the investigation, Respondent failed to notify the Commissioner of hazardous waste generator activities.  Specifically, Respondent generated 45,840 pounds of D001/D039 hazardous waste at Site 2 without notifying the Commissioner of hazardous waste generator activities.

 

c.         Pursuant to 329 IAC 3.1-1-11(c), any person who transports, or offers for transportation, a hazardous waste must first obtain an identification number issued by the U.S. EPA.

 

As noted during the investigation, Respondent failed to obtain an EPA identification number for Site 2 prior to generating and offering for transport hazardous waste.

 

d.         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 investigation, Respondent offered for transport hazardous waste for offsite treatment, storage, or disposal without preparing a manifest.  Specifically, Site 2 generated 45,840 pounds of D001/D039 hazardous waste and allowed the transport to Site 1, which is not a permitted treatment, storage disposal facility, without a uniform hazardous waste manifest.  Site 1 then prepared a uniform hazardous waste manifest (001821171) indicating it was the generator even though the material was generated at Site 2.  The hazardous waste was transported to a permitted treatment, storage, disposal, facility.

 

e.         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 investigation, Respondent caused or allowed the transportation of a hazardous waste without a manifest as required by law.  Specifically, Site 2 generated 45,840 pounds of D001/D039 hazardous waste and allowed it to be transported to Site 1, which is not a permitted treatment, storage disposal facility, without a uniform hazardous waste manifest.  Site 1 then prepared a uniform hazardous waste manifest (001821171) indicating it was the generator even though the material was generated at Site 2.

 

f.          Pursuant to IC 13-30-2-1(11), no person shall deliver any hazardous waste to a facility that does not have a hazardous waste permit.

 

As noted during the investigation, Respondent allowed the delivery of hazardous waste to a facility that does not have a hazardous waste permit. Specifically, Site 2 generated 45,840 pounds of D001/D039 hazardous waste and had it transported to Site 1, which is not a permitted treatment, storage disposal facility, without a uniform hazardous waste manifest.  Site 1 then prepared a uniform hazardous waste manifest (001821171) indicating it was the generator even though the material was generated at Site 2.

 

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 the statutes, rules, and/or permit conditions listed in the findings above.

 

3.              Upon the Effective Date, Respondent shall comply with 40 CFR 262.20.  Specifically, Respondent shall ensure hazardous waste uniform manifests are prepared in accordance with the instructions in the appendix in 40 CFR 262.

 

4.              Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM corrected copies of manifest 002120150, 002120118, 001821148, and 001821171.  In addition, Respondent shall submit corrected copies to the generator, transporter and designated facility for their records.

 

5.              Within thirty (30) days of the Effective Date, Respondent shall train employees at Site 1 who are responsible for hazardous waste management requirements.  The training shall include, but not be limited to, properly filling out the uniform hazardous waste manifest prior to transport.  Within fifteen (15) days of completing the required hazardous waste management training, Respondent shall submit to IDEM training records and a description of the training completed.

 

6.              Upon the Effective Date, Respondent shall ensure future compliance with 329 IAC 13-4-3(d).   Specifically, Respondent shall ensure containers of used oil are properly labeled “Used Oil”.

 

7.              Upon the Effective Date, Respondent shall not accept and store hazardous waste at Site 1 without first notifying the Commissioner of hazardous waste activities which require a permit.

 

8.              Upon the Effective Date, Respondent shall comply with 40 CFR 262.11.  Specifically, Respondent shall ensure a waste determination of solid waste is made by the person generating the waste to determine if it is hazardous waste.

 

9.              Upon the Effective Date, Respondent shall ensure hazardous waste is transported accompanied with a hazardous waste manifest when required.

 

10.           Within thirty (30) days of the Effective Date, Respondent shall submit the information requested in the letter issued October 3, 2014 to Site 1 from the Office of Land Quality Hazardous Waste Section.  In accordance with 329 IAC 3.1-6-2(2), Respondent 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 they have the necessary equipment to do so.  Specifically, IDEM is requesting information regarding continued use solvents (106 degree solvent and odorless mineral spirits).  The specific information requested is the specific uses for the continued use material and a list of clients to which the continued use material is conveyed.

 

11.           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

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

12.         Respondent is assessed and agrees to pay a civil penalty of Six Thousand Dollars ($6,000).  Within thirty (30) days of the Effective Date, Respondent shall pay a portion of this penalty in the amount of Twelve Hundred Dollars ($1,200) 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 Four Thousand Eight Hundred Dollars ($4,800) 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.  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.

 

The Brownfield Site at which some or all of the SEP proceeds will be spent will be determined by the Brownfields Program for a site located in Indianapolis, Indiana.  The designation of this Brownfield Site to receive the SEP proceeds is agreed upon by the Complainant, Respondent, and the 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 Numbers of this action shall be included in the memo line of the check.  The check shall be mailed to:

 

Meredith Gramelspacher

Indiana Brownfields Program - SEP

100 N. Senate Avenue

Room 1275

Indianapolis, Indiana  46204

 

13.         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

4

$200/wk

5

$200/wk

10

$200/wk

 

14.         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.

 

15.         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

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

16.         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 15, above.

 

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 permits 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:

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: ________________________

 

Director & General Counsel

 

 

 

Date:________________________

Date: ______________________

 

 

 

COUNSEL &/OR AUTHORIZED

 

REPRESENTATIVE:

 

For the City of Indianapolis

 

 

 

By:________________________

 

 

 

Date:_______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_____

DAY OF

________________________,

 20__.

 

 

For the Commissioner:

 

 

 

Signed 04/22/2015 By:

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality