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. 2018-25181-H
					)
Covanta Environmental Solutions, 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 Covanta Environmental Solutions, LLC (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (“EPA”) ID No. INR 000 127 621 located at 5625 Old Porter Rd., in Portage, Porter 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. Kris Roedel, Operations Manager	CT Corporation System
Covanta Environmental Solutions, LLC	Registered Agent for
5625 Old Porter Rd.	Covanta Environmental Solutions, LLC
Portage, IN 46368	150 West Market Street, Suite 800
	Indianapolis, IN 46204
Mr. Paul Stauder, President
Covanta Environmental Solutions, LLC
445 South Street
Morristown, NJ 07960

5. Respondent notified EPA of Conditionally Exempt Small Quantity Generator and Hazardous Waste Transfer facility activities.

6. On July 7, 2016 Cargill Incorporated (“Cargill”) located in Hammond, Lake County had a sulfuric acid tank leak. Cargill determined that the leaked sulfuric acid and all the sulfuric acid remaining in the tank was no longer food safe. Cargill contacted Advance Waste Services, LLC (“AWS”), which merged with Respondent on December 6, 2016, and is now part of 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 (1,273 gallons) and transported by Advanced Waste Carriers, Inc., to Respondent’s facility located in Portage, Indiana. Three (3) sulfuric acid rinstate totes (250 gallons or 3,857 pounds) were also generated from cleaning the spilled area and remained at the Cargill facility.

After further evaluation of the sulfuric acid it was determined that it was not suitable as a substitute for a commercial product. Respondent shipped the five (5) totes of sulfuric acid back to Cargill on a bill of lading on December 15, 2016. Cargill had the totes manifested to a permitted treatment, storage, and disposal facility as a hazardous waste (D002) on December 15, 2016. The total amount shipped increased to 1,400 gallons because Respondent needed to rinse out its truck and the rinstate was added to the totes.

7. 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.

8. During an investigation including an inspection on January 4, 2018 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 the sulfuric acid was not a waste and was acceptable as 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. Respondent failed to demonstrate that the second person who uses the material has a known use for the material as an effective substitute for a commercial product pursuant to 40 CFR 261.2(e).

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 accepted waste from Cargill on July 8, 2016. Respondent directed the shipment of the hazardous waste (D002) back to Cargill on December 15, 2016 utilizing a bill-of-lading. Cargill is not permitted to accept hazardous waste.

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 does not hold a permit from the department. Specifically, Respondent accepted waste from Cargill on July 8, 2016. Respondent directed the shipment of the hazardous waste (D002) back to Cargill on December 15, 2016 utilizing a bill-of-lading. Cargill is not permitted to accept hazardous waste.

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, Respondent received material, sulfuric acid, that was claimed to be material for reuse, excluded under 40 CFR 261.2(e). This material was not reused as a substitute commercial chemical product, but was disposed of as a hazardous waste, negating the exclusion. Respondent therefore received hazardous waste (D002), but is not permitted for this activity.

e. 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 inspection, Respondent failed to notify the Commissioner of hazardous waste storage activities. Specifically, Respondent accepted five (5) totes of sulfuric acid (D002) from off-site. Respondent is not permitted to accept hazardous waste from off-site.

f. 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 failed to obtain a permit for hazardous waste storage activities. Specifically, Respondent accepted five (5) totes of sulfuric acid (D002) from off-site. Respondent is not permitted to accept hazardous waste from off-site.

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, 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 accepting material which is claimed not to be 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. 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

5. 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 Two Thousand Eight Hundred Dollars ($2,800).  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 Eleven Thousand Two Hundred Dollars ($11,200).  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 $11,200, 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 “Dunes Learning Center.”  Respondent shall compete this SEP within thirty (30) days of the Effective Date.  This SEP will assist in funding the “Naturalist Intern Program.”

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 5 above, 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.

6. 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

7. 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 6, above.

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 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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 RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________, 20_____.
				For the Commissioner:
				Signed 11/26/2018 By:
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality