STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

 

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) CASE NO. 2001-10371-S

) CASE NO. 2002-11564-S

)

VICTORY ENVIRONMENTAL SERVICES, INC. )

)

)

Respondent. )

AGREED ORDER

The Complainant and the 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 (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Victory Environmental Services, Inc. (hereinafter referred to as "Respondent"), who owns and operates Victory Landfill, located at 12247 S. Mill Street, Terre Haute, Vigo County, Indiana (hereinafter referred to as "the Site").

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail on April 30, 2001, for Case No. 2001-10371-S to:

James H. Cosman, President James J. Drury, Registered Agent

Jamax Corporation c/o Jamax Corporation

110 S.E. 6th St., 28th Floor 3200 E. Haythorne Avenue

Ft. Lauderdale, Florida 33301 Terre Haute, Indiana 47805

Kenneth J. Depasse, Vice President

Jamax Corporation

3200 E. Haythorne Avenue

Terre Haute, Indiana 47805

5. Respondent waives issuance of a Notice of Violation and to the settlement period of sixty (60) days as provided for by IC 13-30-3-3, for Case No. 2002-11564-S.

6. On March 5, 2001; March 6, 2001; May 13, 2002; May 14, 2002; May 17, 2002; and May 23, 2002, inspections were conducted at the Site by a representative of IDEM's Office of Land Quality (OLQ). The following violations were in existence or observed at the time of these inspections:
    1. Pursuant to 329 IAC 10-20-2(a), on-site roads that provide access to disposal areas must be passable to vehicles using these areas. During some or all of the inspections noted above IDEM observed that the on-site road around cell 5 was impassable.
    2. Pursuant to 329 IAC 10-20-4(e), and permit # 84-2, which requires that windblown materials and litter within the facility boundaries must be collected and buried daily. Debris blown off the facility boundaries must be cleaned up immediately. During some or all of the inspections noted above IDEM observed litter was beyond the litter barrier and on the sides of the slopes.
    3. Pursuant to 329 IAC 10-20-4(c), requires that dust must be controlled by effective means so that it does not constitute or contribute to a nuisance, a health hazard, or a safety hazard. During some or all of the inspections noted above IDEM observed that visibility was low due to the extreme amount of dust on Site, creating a safety hazard.

      4.  

       

    4. Pursuant to 329 IAC 10-20-14(b), and Permit # 84-2, requires that the owners, operators, or permittees of all municipal solid waste landfills shall apply and compact no less than six (6) inches of soil over all disposed solid waste at the end of each operating day, regardless of weather conditions, or at more frequent intervals if necessary, to control disease vectors, fires, odors, blowing litter, and scavenging. During some or all of the inspections noted above IDEM observed daily cover had not been applied in accordance with the rule.
    5. Pursuant to 329 IAC 10-20-14(c), requires that alternative daily cover must be applied in accordance with section 14.1 of this rule. During some or all of the inspections noted above IDEM observed that alternative daily cover had not been applied in accordance with the rule.
    6. Pursuant to 329 IAC 10-20-14(h), any MSWLF areas with intermediate cover, additional erosion and sediment control measures must be implemented within fifteen (15) days after placement of the intermediate cover. During some or all of the inspections noted above IDEM observed appropriate erosion and sediment control measures had not been implemented within fifteen (15) days after placement of intermediate cover.
    7. Pursuant to 329 IAC 10-20-16(f), during those times of the year when adequate vegetation to control erosion cannot be established, anchored mulch, or a suitable alternative, must be applied to achieve an effective erosion control layer. During some or all of the inspections noted above IDEM observed that anchored mulch, or a suitable alternative had not been applied to the Site to control erosion.
    8. Pursuant to 329 IAC 10-20-16(g), vegetation or anchored mulch or both must be maintained and reapplied as necessary to sustain an effective erosion control layer. During some or all of the inspections noted above IDEM observed that vegetation had not been maintained in order to establish an effective erosion control layer.
    9. Pursuant to 329 IAC 10-20-16(h), rill and gullies deeper than nine (9) inches that have formed in areas with intermediate or final cover must be filled, graded, reseeded, and mulched or otherwise stabilized. During some or all of the inspections noted above IDEM observed rills and gullies throughout the intermediate cover area of the Site that were over 9 inches deep and had not been filled, graded, reseeded, and mulched or otherwise stabilized.

      10.  

       

    10. Pursuant to 329 IAC 10-20-20-(b)(2), the owner, operator, or permittee shall monitor and maintain the leachate collection or leachate removal system as required in the leachate contingency plan under 329 IAC 10-15-11(a)(1) through 329 IAC 10-15-11(a)(2) or subsection (a). During some or all of the inspections noted above IDEM observed that the leachate collection and removal system had not been maintained.
    11. Pursuant to 329 IAC 10-20-20-(b)(3), the owner, operator, or permittee shall implement the leachate contingency plan required under 329 IAC 10-15-11(a)(4) or subsection (a), if the leachate collection or leachate removal system is not operational or leachate levels are exceeded. During some or all of the inspections noted above IDEM observed that the leachate contingency plan had not been implemented when leachate levels were exceeded.
    12. Pursuant to IC 13-30-2-1(3), which states a person may not deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate a rule adopted by one (1) of the boards. During some or all of the inspections noted above IDEM observed that daily cover had not been applied and litter was beyond the litter barrier and on the sides of the slopes, in violation of 329 IAC 10-20-4(e) and 329 IAC 10-20-14(b), which are rules adopted by the Indiana Solid Waste Management Board, thus violating IC 13-30-2-1(3).

7. 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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall apply and compact no less than six (6) inches of soil over all disposed solid waste at the end of each operating day, or at more frequent intervals if necessary, to control blowing litter, as required by 329 IAC 10-20-14.

3. Respondent shall limit the size of the working face to an area that can be covered daily, as required by 329 IAC 10-20-14.

4. Respondent shall ensure that the on-site roads maintain a minimum lane width of ten (10) feet for one-way directional traffic, or twenty-two (22) feet for two-way directional traffic within thirty (30) days of the Effective Date of this Order, as required by 329 IAC 10-20-2.

5. Respondent shall control dust by an effective means so that it does not constitute or contribute to a nuisance, a health hazard, or a safety hazard within fifteen (15) days of the Effective Date of this Order, as required by 329 IAC 10-20-4.

6. Respondent shall apply alternative daily cover (ADC) in accordance with 329 IAC 10-20-14.1, if Respondent chooses to use ADC.

7. Respondent shall implement within fifteen (15) days after placement of the intermediate cover, additional erosion and sediment control measures, as required by 329 IAC 10-20-14, which may include the following:

a. Establishment of vegetation.

b. Covering with alternative synthetic cover or liner.

c. Other applicable erosion and sedimentation control measures.

8. Respondent shall apply a suitable vegetation alternative, as required by 329 IAC 10-20-16, to achieve an effective erosion control layer during times of the year when adequate vegetation control erosion can not be established, or anchored mulch can not be applied.

9. Respondent shall maintain or reapply vegetation or anchored mulch to sustain an effective erosion control layer, or a suitable vegetation, as required by 329 IAC 10-20-16.

10. Respondent shall fill, grade, reseed, and mulch rills and gullies that have formed in areas with intermediate or final cover within thirty (30) days of the Effective Date of this Order, as required by 329 IAC 10-20-16.

11. Respondent shall grade intermediate cover to promote surface water drainage and prevent ponding of water, as required by 329 IAC 10-20-14.

12. Respondent shall comply with the grading and soil stabilization requirement for intermediate and final cover in accordance with 329 IAC 10-20-16.

13. Respondent shall maintain intermediate and final cover continuously, including application and compaction of additional cover as needed to maintain required depth.

 

14. Respondent shall monitor and maintain the leachate collection and leachate removal system as required in the leachate contingency plan under 329 IAC 10-20-20.

15. Respondent shall monitor leachate levels in the primary sumps on a weekly basis, upon the Effective Date of this Order.

16. Respondent shall ensure that the leachate levels in the primary sumps shall not exceed regulatory maximum leachate elevations as depicted on the "Request to Resume Leachate Recirculation" document dated July 29, 2002 (Attachment A).

17. Respondent shall monitor the level of liquids in the secondary sumps every 2 weeks during the facility self-inspection events as required by 329 IAC 10-20-28.

18. Respondent shall implement a leak detection program as required in 329 IAC 10-20-19.

19. Respondent shall implement the "Supplemental Erosion and Sediment Control Plan for Area B", prepared by Weaver, Boos and Gordon Inc., dated June 13, 2002 and revised October 30, 2002 (Attachment B), within thirty (30) days of the Effective Date of this Agreed Order.

20. Respondent shall remove accumulated sediment from sediment traps and basins within thirty (30) days of the Effective Date of this Order, and maintain the sediment traps and basins in accordance with 329 IAC 10-20-12.

21. Respondent shall inspect erosion and sedimentation structures on a weekly basis, after all rain events, and perform any necessary repairs within 24 hours of inspection.

22. Respondent is hereby assessed a civil penalty of Thirty Eight Thousand Four Hundred Thirty Seven Dollars and Fifty Cents ($38,437.50) for Case No. 2001-10371-S and Case No. 2002-11564-S. Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a cash penalty of Seven Thousand Six Hundred Eighty Seven Dollars and Fifty Cents ($7,687.50). The payment shall be submitted to the Environmental Management Special Fund, as directed by paragraph 30. In lieu of payment of the remaining Civil Penalty, the Respondent shall perform and complete the Supplemental Environmental Project (ASEP@), as described in paragraph 23, 24 and 25. The total funds expended on the SEP must be a minimum of Sixty One Thousand Five Hundred Dollars ($61,500). If the SEP is not completed in accordance with this agreement and within the specified time period, subject to any extension for cause due to force majeure, the Respondent agrees to pay the remaining amount of the civil penalty, plus interest at the rate established by IC 24-4.6-1-101, to the Environmental Management Special Fund. Payment of the remaining civil penalty shall be submitted within fifteen (15) days from the receipt of a notice to pay from IDEM. Interest on the remaining civil penalty shall be paid from the Effective Date of this Agreed Order.

23. As a SEP to offset a portion of the civil penalty, Respondent shall spend a minimum of Sixty One Thousand Five Hundred Dollars ($61,500) towards the remediation of improperly disposed regulated solid waste. Remediation includes, but is not limited to disposal capacity at Victory Landfill, Sycamore Ridge Landfill, or any landfill owned by Victory Environmental Services, Inc. permitted to accept municipal solid waste. The value of the disposal capacity is calculated at the rate of Twenty-Four ($24) per ton. The Twenty-Four ($24) per ton does not include any solid waste fees or solid waste district fees imposed under state statute.

24. The SEP must be completed within twelve (12) months of the Effective Date of this Agreed Order.

25. Upon the completion of the SEP, Respondent shall submit written documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP, including but not limited to, all cost documentation, periodic progress reports, final reports and documentation of disposal capacity provided for the clean up of open dumps.

26. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent by certified mail to:

Janet Arnold, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, Indiana 46206-6015

27. All submittals required by this Agreed Order shall contain the following certification:

AI certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to be the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.@

 

28. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation Penalty

Failure to comply with Order paragraph 17 $500 per violation

Failure to comply with Order paragraph 20 $1,000 per week sediment removal is late

Failure to comply with Order paragraph 21 $500 per violation

29. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondents for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondents' violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

30. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

31. In the event that the civil penalty required by Order paragraph 22, is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.

32. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

33. AForce Majeure,@ for the purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the Respondent=s best efforts to fulfill the obligation. The requirement that the Respondent exercise Abest efforts to fulfill the obligation@ includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. AForce Majeure@ does not include financial inability to complete the work required by this Agreed Order or increases in costs to perform the work.

The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM. Said decision shall be communicated to that Respondent.

If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is attributable to the event constituting the force majeure.

34. 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 the Agreed Order did not contain the invalid terms.

35. The 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.

36. This Agreed Order shall remain in effect for a period of two (2) years after the Effective Date of the Agreed Order.

 

 

 

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

 

 

By:___________________________ By:____________________________

Paul Higginbotham, Chief

Solid Waste Section Printed:________________________

Office of Enforcement

Title:__________________________

Date:_________________________ Date:__________________________

 

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

By:___________________________ By:____________________________

Office of Legal Counsel

Department of Environmental Management

Date:__________________________ Date:___________________________

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF __________________, 2003.

 

For the Commissioner:

 

July 16, 2003

Felicia A. Robinson

Deputy Commissioner

Legal Affairs