STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case Nos. 2018-25316-H and
					)	2018-25458-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 (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (“EPA”) ID No. INR 000 000 919 located at 1626 Research Way, in Indianapolis, Marion 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. Craig G. Hogarth	CT Corporation System
Director of Safety and Compliance	Registered Agent for
Heritage Transport LLC	Heritage Transport LLC
7901 W Morris Street	150 West Market Street, Suite 800
Indianapolis, IN 46231	Indianapolis, IN 46204

5. Respondent is notified as a large quantity hazardous waste generator, universal waste handler, transporter and a less than ten (10) day hazardous waste transfer facility.

6. 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.

7. During an investigation including an inspection on March 20 and 21, 2018 and a record review on May 9, 2018 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 hazardous waste determinations on ten (10) containers of unidentified waste accumulating in the Sampling Building, which contained solid wastes generated by Respondent.

Four (4) of the ten (10) containers were labeled hazardous waste. Three (3) of the containers were not labeled. There was also one (1) container each labeled as wash water, spill liquids, and wastewater spill cleanup. Respondent was unclear as to whether the labels were accurate or how long the waste had been stored.

Respondent performed a waste determination for the containers. The containers were shipped for management from Respondent’s facility on March 26, 2018. Respondent submitted a response dated April 2, 2018 providing records. It was determined two (2) drums were absorbent debris from the cleanup of a waste sludge hazardous for waste characteristic D008 and five (5) were the absorbent debris of F006 listed hazardous waste. Additionally, two (2) of the drums were absorbent debris from the cleanup of a nitric acid spill. These were determined to be non-hazardous solid as the spilled material was solely characteristic for the corrosive waste characteristic (D002) and one (1) drum was empty.

b. 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, two (2) drums labeled hazardous waste liquid (lead) both dated 06/22/2017 and one (1) drum labeled spill liquid dated 06/28/2017 were stored for greater than ninety (90) days. The containers were shipped for management from Respondent’s facility on March 26, 2018. Documentation was provided to IDEM on April 2, 2018.

c. 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, two (2) drums labeled hazardous waste liquid (lead) both dated 06/22/2017 and one (1) drum labeled spill liquid dated 06/28/2017 were stored for greater than ninety (90) days.

The containers were shipped for management from Respondent’s facility on March 26, 2018. Documentation was provided to IDEM on April 2, 2018.

d. 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, two (2) drums labeled hazardous waste liquid (lead) both dated 06/22/2017 and one (1) drum labeled spill liquid dated 06/28/2017 were stored for greater than ninety (90) days. The containers were shipped for management from Respondent’s facility on March 26, 2018. Documentation was provided to IDEM on April 2, 2018.

e. 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. Specifically, two (2) drums labeled hazardous waste liquid (lead) both dated 06/22/2017 and one (1) drum labeled spill liquid dated 06/28/2017 were stored for greater than ninety (90) days. The containers were shipped for management from Respondent’s facility on March 26, 2018. Documentation was provided to IDEM on April 2, 2018.

f. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.54, a facility’s contingency plan must be amended whenever applicable regulations are revised; the plan fails in an emergency; the facility changes its design, construction, or operation; or the list of emergency coordinators or emergency equipment changes.

As noted during the inspection, Respondent failed to amend the contingency plan to reflect emergency coordinator changes.

In a submittal dated April 2, 2018, Respondent sent a revised list of emergency coordinators to IDEM. Respondent updated the emergency coordinator list and distributed the contingency plan to the list of contingency plan holders on March 30, 2018.

g. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(1-4), certain hazardous waste training related documents and records including job title, job descriptions, a description of the type and amount of required training, and completion documents with respect to the hazardous waste management training must be maintained on-site.

As noted during the inspection, Respondent did not maintain all of the required hazardous waste training related documents and records on-site. The records were being maintained at Heritage Environmental Services (“HES”) located at 7901 West Morris Street in Indianapolis, IN. Additionally, HES plant employees working at Respondent’s location had not received training on Respondent’s contingency plan. Respondent conducted contingency plan training for HES plant employees on April 11, 2018 and April 12, 2018.

h. Pursuant to 40 CFR 262.34(c)(1)(ii), a generator may accumulate as much as 55 gallons of hazardous waste in containers at or near the point of generation without a permit and without complying with 40 CFR 262.34(a), provided that the containers are marked with either the words "Hazardous Waste" or with other words describing the contents.

As noted during the inspection, Respondent accumulated hazardous waste in containers at or near the point of generation without a permit and did not properly mark satellite accumulation containers with either the words “Hazardous Waste” or with other words describing the contents. Specifically, one (1) fifty-five (55) gallon container located in the Maintenance Garage was not marked with the words “Hazardous Waste” or with other words describing the contents.

This violation was corrected during the inspection.

i. Pursuant to 40 CFR 263.21(a)(1), the transporter must deliver the entire quantity of hazardous waste which he has accepted from a generator or a transporter to:

(1) The designated facility listed on the manifest; or

(2) The alternate designated facility, if the hazardous waste cannot be delivered to the designated facility because an emergency prevents delivery; or

(3) The next designated transporter; or

(4) The place outside the United States designated by the generator.

As noted during a record review on May 9, 2018, Respondent failed to deliver the entire quantity of hazardous waste which was accepted from the generator by Respondent to the designated facility as listed on the manifest 009644830 FLE. The generator copy was signed by both the generator and Respondent on 10/24/2017 and was set to be delivered to Parallel Products of Kentucky. Without the knowledge or consent of the generator, line items 9b.1 and 9b.2 of manifest 009644830 FLE were moved to a continuation sheet for manifest 009644409 FLE. The waste was then delivered to HES. HES was the designated facility for the consignment identified on Uniform Hazardous Waste Manifest 009 644 409 FLE.  The waste transferred from 009644830 FLE to 009644409 FLE was an approved waste stream in accordance with the facility’s waste analysis plan, was established as a waste stream in conjunction with the generator, and acceptable for management at HES in accordance with its RCRA operating permit.

Based on an electronic mail inquiry from IDEM on February 21, 2018 after an inspection of the generator by IDEM on February 13, 2018, the generator stated by electronic mail they never received notice that the waste was being rerouted or moved to another manifest. The generator only became aware of the change once they received the manifest back from HES that was mailed by HES on November 3, 2017.

Respondent submitted a response dated November 29, 2018.  Part of the response included statements from the HES Project Manager and the Project Manager’s Supervisor to IDEM explaining the events regarding this shipment dated October 23, 2018. It explained an error was made when preparing the manifest and HES did contact the generator and was granted permission to change the shipping documents.

8. 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 40 CFR 262.34(b). Specifically, Respondent shall ensure generated hazardous waste is not stored for greater than ninety (90) days without a permit.

5. Upon the Effective Date, Respondent shall ensure all the required hazardous waste training related documents are maintained on-site in accordance with 40 CFR 265.16(d)(1-4).

6. Upon the Effective Date, Respondent shall comply with 40 CFR 262.34(c)(1)(ii). Respondent shall ensure satellite accumulation containers are properly marked with the words “Hazardous Waste” or other words describing the contents.

7. Upon the Effective Date, Respondent shall comply with 40 CFR 263.21(a)(1). Specifically, Respondent shall ensure hazardous waste accepted from a generator or another transporter is delivered to the designated facility listed on the manifest.

8. 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

9. Respondent is assessed and agrees to pay a civil penalty of Twenty One Thousand Dollars ($21,000). Within thirty (30) days of the Effective Date, Respondent shall pay a portion of this penalty in the amount of Four Thousand and Two Hundred Dollars ($4,200) 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 Sixteen Thousand Eight Hundred Dollars ($16,800) 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

10. 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

Accounts Receivable

IGCN, Room N1340

100 North Senate Avenue

Indianapolis, IN 46204

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 EPA or any other agency or entity.

19. This Agreed Order shall remain in effect until Respondent complies with Paragraph II.9. IDEM will issue a Resolution of Case letter to Respondent thereafter.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Linda McClure, Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
COUNSEL FOR INDIANA FINANCE				COUNSEL FOR RESPONDENT:
AUTHORITY:
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 11/19/2019
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality