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. 2018-25179-H
					)
cargill incorporated,					)
					)
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 Cargill Incorporated (“Respondent”), which owns and/or operates a company with United States Environmental Protection Agency (“EPA”) ID No. IND 005 460 753, located at 1100 Indianapolis Boulevard in Hammond, Lake 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”) to:

Mr. Michael Golando,	CT Corporation System
Environmental Manager	Registered Agent for Cargill Incorporated
Cargill Incorporated	150 West market Street, Suite 800
1100 Indianapolis Boulevard	Indianapolis, IN 46204
Hammond, IN 46320
David Wood MacLennan, President
Cargill Incorporated
15407 McGinty Rd W
Wayzata, MN 55343

5. Respondent notified EPA of small quantity hazardous waste activities.

6. Respondent processes corn to produce corn syrups, starches, corn germ, and glutens for the food industry, including animal feed.

7. On July 7, 2016 Respondent had a sulfuric acid tank leak. Respondent determined that the leaked sulfuric acid and all the sulfuric acid remaining in the tank was no longer food safe. Respondent contacted Advance Waste Services, LLC, (“AWS”) which merged with Covanta on January 1, 2017 and is now called Covanta Environmental Solutions, LLC, to determine if the sulfuric acid may be utilized at their treatment facilities for chemical precipitation of wastewater contamination, pH adjustment and oil/water separation. On July 8, 2016 the sulfuric acid was transferred into five (5) IBC totes (1,400 gallons) and transported by AWS to its facility located in Portage, Indiana. Three (3) sulfuric acid rinsate totes (250 gallons or 3,857 pounds) were also generated from cleaning the spilled area and remained at Respondent’s facility.

After further evaluation of the sulfuric acid it was determined that it was not suitable as a substitute for a commercial product. Respondent had the totes manifested to a permitted treatment, storage, and disposal facility as a hazardous waste (D002) on December 15, 2016.

8. 329 Indiana Administrative Code (“IAC”) 3.1 incorporates certain federal hazardous waste management requirements found in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273, including those identified below.

9. During an investigation including an inspection on August 30, 2017 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 329 IAC 3.1-6-2(2), Respondents 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 and operators of facilities claiming that they are actually recycling materials must show that they have the necessary equipment to do so.

As noted during the inspection, Respondent was unable to provide documentation meeting the terms of the exclusion/exemption demonstrating its sulfuric acid was not a waste and acceptable for an effective substitute for a commercial product pursuant to 40 CFR 261.2(e)(ii).

Specifically, Respondent provided a Waste Certification Statement between Respondent and AWS, which described the material as Sulfuric Acid for Reuse, however, the Waste Certification Statement did not indicate the known market or disposition of the material.

b. Pursuant to 40 CFR 262.20, a generator who transports or offers for transportation hazardous waste for off-site treatment, storage, or disposal must prepare a manifest. A generator must ensure that manifests are fully filled out and contain accurate information. A generator must designate on the manifest one facility which is permitted to handle the waste described on the manifest.

As noted during the inspection, Respondent did not initially prepare a hazardous waste manifest for the five (5) totes of sulfuric acid which were offered for transport to an unpermitted facility. The five (5) totes were later determined to be a hazardous waste (D002). The hazardous waste was manifested, manifest tracking number 016160474 JJK, to a permitted treatment, storage, disposal facility on December 15, 2016.

c. Pursuant to IC 13-30-2-1(11) and (12), a person may not deliver any hazardous waste to a hazardous waste facility that is not approved or does not hold a permit from the department, or cause, or allow the transportation of a hazardous waste without a manifest if a manifest is required by law.

As noted during the inspection, Respondent allowed the transportation of five (5) totes of sulfuric acid (D002) to a facility that is not approved or do not hold a permit from the department. Specifically, Respondent initiated a shipment of sulfuric acid on July 8, 2016 which was later determined to be a hazardous waste (D002) to an unpermitted facility on a bill of lading.

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 received hazardous waste identified or listed in 40 CFR Part 261 without a permit. Specifically, on December 5, 2016 five (5) totes of sulfuric acid (D002) originally identified as material for reuse from Respondent were profiled for disposal, while being stored at the AWS Portage facility. This material had been received by AWS on July 8, 2016. On December 15, 2016, the five (5) totes of waste sulfuric acid (D002) was transported by AWS to Respondent on a bill-of-lading. Respondent received hazardous waste from off site without a permit. Respondent also stored three (3) totes of sulfuric acid rinsate generated on July 8, 2016 for greater than ninety (90) days without a permit.

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. Specifically, on December 5, 2016 five (5) totes of sulfuric acid (D002), originally identified as material for reuse from Respondent, were profiled for disposal while being stored at the AWS Portage facility. This material had been received by AWS on July 8, 2016. December 15, 2016, the five (5) totes of waste sulfuric acid (D002) were transported by AWS to Respondent on a bill-of-lading. Respondent received hazardous waste from off site without a permit. Respondent also stored three (3) totes of sulfuric acid rinsate generated on July 8, 2016 for greater than ninety (90) days without a permit.

Respondent manifested the hazardous waste (D002) to a permitted treatment, storage, disposal facility on December 15, 2016 (Uniform Hazardous Waste Manifest Tracking No. 016160474 JJK).

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. Respondent stored three (3) totes of sulfuric acid rinsate generated on July 8, 2016 for greater than ninety (90) days without a permit. Additionally, on December 5, 2016 Respondent received five (5) totes of sulfuric acid (D002), originally identified as material for reuse, which were profiled for disposal while being stored at the AWS Portage facility. This material had been received by AWS on July 8, 2016. On December 15, 2016, the five (5) totes of waste sulfuric acid (D002) were transported by AWS to Respondent on a bill-of-lading. Respondent received hazardous waste from off site without a permit.

Respondent manifested the hazardous waste (D002) to a permitted treatment, storage, disposal facility on December 15, 2016 (Uniform Hazardous Waste Manifest Tracking No. 016160474 JJK).

g. Pursuant to 40 CFR 262.34(b), a generator who accumulates hazardous waste for more than 90 days is an operator of a storage facility and is subject to the requirements of 40 CFR Part 264 and the permit requirements of 40 CFR Part 270 unless he has been granted an extension to the 90 day period.

As noted during the inspection, Respondent stored hazardous waste on-site for greater than 90 days without complying with 40 CFR Part 264 and 40 CFR Part 270. Specifically, Respondent stored three (3) totes of sulfuric acid rinsate generated on July 8, 2016 for greater than ninety (90) days without a permit.

Respondent manifested the hazardous waste (D002) to a permitted treatment, storage, disposal facility on December 15, 2016 (Uniform Hazardous Waste Manifest Tracking No. 016160474 JJK).

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 329 IAC 3.1-6-2(2). Specifically, Respondent shall, prior to offering for transport material which Respondent is claiming is not a solid waste because of an exclusion or exemption, demonstrate that there is a known market or disposition for the material. Respondent must provide appropriate documentation to demonstrate that the material is not a waste or is exempt from regulation. This documentation shall be available to IDEM upon request. 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 and operators of facilities claiming that they are actually recycling materials must show that they have the necessary equipment to do so.

4. Upon the Effective Date, Respondent shall comply with 40 CFR 262.34. Specifically, Respondent shall ensure if hazardous waste generated within a calendar month are large quantity amounts that waste shall not accumulate onsite for greater than ninety (90) days.

5. 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

6. Respondent is assessed and agrees to pay a civil penalty of Fourteen Thousand Dollars ($14,000). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Ten Thousand Dollars ($10,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund.  In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (“SEP)”. Respondent estimates that this SEP will cost Four Thousand Dollars ($4,000). Within 60 days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP.  In the event that the cost of the SEP is less than $4,000, Respondent shall pay the difference between the proposed cost of the SEP and the actual cost of the SEP.

As a SEP, Respondent shall make a donation to the “Indiana Dunes Environmental Learning Center.” Respondent shall compete this SEP within thirty (30) days of the Effective Date. This SEP will assist in tuition for the “Mighty Acorns Nature Camp.”

In the event that Respondent does not complete the SEP within 30 days from the Effective Date, the full amount of the civil penalty as stated in paragraph 6above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the option 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.

7. Civil 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

8. 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.

9. 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 7, above.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMEDATIONS				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________, 20_____.
				For the Commissioner:
				Signed 10/22/2018 By:
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality