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. 2002-11178-H

)

ECOLOGICAL SYSTEMS, 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 will not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding.

I. FINDINGS OF FACT

1. Complainant is the Commissioner ("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 Ecological Systems, Inc. ("Respondent"), which operated the facility with U.S. EPA ID No. INR 000002444, located at 2255 North Ralston Avenue, in Indianapolis, Marion County, Indiana ("Site"). On December 9, 1999, a fire destroyed the main building at the facility and operations ceased at the Site. On September 10, 2001, Respondent notified the owner and other prior operators of the Site that Respondent had completed its removal of equipment and other property from the Ralston Avenue Site and no longer had any interest in nor involvement with the Ralston Avenue Site.

3. Respondent currently operates a new location at 4910 West 86th Street, Indianapolis, Indiana ("86th Street Site") under new management and ownership and with new equipment and processes. Based on information provided to IDEM by Respondent, IDEM agrees these operations currently follow applicable environmental procedures, rules and requirements.

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

5 Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) on March 6, 2002, via Certified Mail, to:

Victor Belenchia, President Mark W. Rutherford, Registered Agent

Ecological Systems, Inc. Ecological Systems, Inc.

5232 W. 79th St. 156 E. Market St., Ste. 600

Indianapolis, IN 46268 Indianapolis, IN 46204

6. Alac Garment Services (Alac) in Anderson, Indiana, generated a hazardous waste (F002), and sent it to Respondent for processing at Respondent's Ralston Avenue Site. Respondent believed that the waste accepted for processing was non-hazardous. Respondent relied on information from Alac as to the process generating the waste at Alac.

7. Respondent was a processor, marketer, and generator of Used Oil, and a hazardous waste transfer facility. Based on an inspection at the Ralston Avenue Site on March 23 and 24, 1999, it was determined that Respondent accepted hazardous waste for treatment from Alac. Once that occurred, the facility became subject to the standards of 40 CFR, Part 264 and the permit requirements of 40 CFR, Part 270.

8. An inspection was conducted at the Ralston Avenue Site on March 23 and 24, 1999, by representatives of IDEMís Office of Land Quality ("OLQ"). The following violations were in existence or observed at the time of this inspection:

a. Pursuant to IC 13-30-2-1(10) and 40 CFR 270.1(c), no person shall commence or engage in the operation of a hazardous waste facility without having first obtained a permit from IDEM. Respondent treated Alac's waste oil still bottoms (F002) without having first obtained a permit.

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 activity on the approved forms. Respondent failed to notify the Commissioner of Respondent's treatment of Alac's F002 waste at the former Ralston Avenue Site.

c. Pursuant to 40 CFR 264.1(b), the standards of this part apply to owners and operators of all facilities which treat, store, or dispose of hazardous waste. Respondent's treatment of Alac's F002 waste did not comply with the requirements of 40 CFR 264.

d. Pursuant to 40 CFR 262.11 and 40 CFR 268.7, a person who generates a solid waste must determine if that waste is hazardous, including the proper land disposal requirements. Respondent did not determine that Alac's waste was a wastewater treatment sludge (F002), generated from processing waste oil still bottoms (F002), and an oil sludge (F002), generated from processing waste oil still bottoms (F002).

e. Pursuant to 329 IAC 13-3-1(e)(3)(B) and 329 IAC 13-7-10, materials derived from used oil that are disposed of or used in a manner constituting disposal are solid wastes and thus subject to, if applicable, the hazardous waste regulations under 329 IAC 3.1 if the materials are listed or identified as hazardous waste. Respondent did not follow the hazardous waste regulations under 329 IAC 3.1 for listed hazardous waste (F002) when Respondent treated Alac's waste at the former Ralston Avenue Site.

f. Pursuant to 40 CFR 262.12(c) and IC 13-30-2-1(11), a generator must not offer hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number. A person may not deliver any hazardous waste to a hazardous waste facility that does not hold a permit from the department. Respondent sent hazardous waste resulting from treatment of Alac's hazardous waste at the former Ralston Avenue Site to facilities that did not have EPA ID numbers.

g. Pursuant to 329 IAC 3.1-7-3(a), 329 IAC 3.1-7-4, and IC 13-30-2-1(12), a generator who transports or offers for transportation, hazardous waste for off-site treatment, storage, or disposal, must prepare a manifest. Respondent offered hazardous waste resulting from treatment of Alac's hazardous waste at the former Ralston Avenue Site for transport off-site without a manifest.

h. Pursuant to 329 IAC 13-3-2, used oil burned for energy recovery, and any fuel produced from used oil by processing, blending, or other treatment, is subject to regulation under this article (Article 13) unless it is shown not to exceed any of the allowable levels of the constituents and properties in the specification shown in Table 1 of 329 IAC 13-3-2. At its former Ralston Avenue Site, Respondent tested used oil that was to be burned for energy recovery for only water content, and not for the constituents and properties found in Table 1.

i. Pursuant to 329 IAC 13-7-1(b), 329 IAC 13-7-6, and 329 IAC 13-7-8, processors or re-refiners who direct shipments of off-specification used oil from their facility to a used oil burner or first claim that used oil that is to be burned for energy recovery meets the used oil fuel specifications set forth in 329 IAC 13-3-2 must also comply with 329 IAC 13-9. An owner or operator must keep at the facility a written operating record that contains records and results of used oil analyses performed as described in the analysis plan required under 329 IAC 13-7-6. Respondent did not maintain records at its former Ralston Avenue Site for each shipment of used oil to on-specification used oil burners. Specifically, records of the used oil analysis to show they met specifications for each shipment were not available since the used oil that is to be burned for energy recovery was only tested for water content.

j. Pursuant to 329 IAC 13-4-2 and 329 IAC 13-3-1(b)(1), mixtures of used oil and hazardous waste must be must be managed in accordance with 329 IAC 13-3-1(b). Respondent received loads of used oil still bottoms (F002) from Alac and processed the waste as used oil at the former Ralston Avenue Site.

k. Pursuant to 329 IAC 13-7-4, to ensure that used oil managed at a processing or re-refining facility is not a hazardous waste under the rebuttable presumption of 329 IAC 13-3-1(b)(1)(B), the owner or operator of a used oil processing or re-refining facility must determine whether the total halogen content of used oil managed at the facility is above or below one thousand (1000) parts per million. If the used oil contains greater than or equal to one thousand (1000) parts per million total halogens, it is presumed to be hazardous waste because it has been mixed with halogenated hazardous waste listed in 40 CFR 261, Subpart D. The owner or operator may rebut the presumption by demonstrating that the used oil does not contain hazardous waste. Respondent failed to properly rebut loads of used oil received for processing at its former Ralston Avenue Site. Respondent received some loads of used oil at its former Ralston Avenue Site that exceeded one thousand (1000) parts per million total halogens and failed to demonstrate that the used oil did not contain hazardous waste.

l. Pursuant to 329 IAC 13-7-6, owners or operators of used oil processing and re-refining facilities must develop and follow a written analysis plan describing the procedures that will be used to comply with the analysis requirements of 329 IAC 13-7-4 and, if applicable, 329 IAC 13-9-3. Respondent did not follow the analysis procedures described in its waste analysis plan for sampling methods and analysis at its former Ralston Avenue Site. The procedures used to determine if the used oil fuel was on-specification were also not followed. Loads of used oil were processed at its former Ralston Avenue Site without any analysis being performed.

m. Pursuant to 329 IAC 13-7-5(e), existing aboveground tanks used to store or process used oil at processing and re-refining facilities must be equipped with a secondary containment system that meets the requirements of 329 IAC 13-7-5(e). Respondent did not equip fifteen (15) tanks used to store or process used oil at its former Ralston Avenue Site with a secondary containment system.

n. Pursuant to 329 IAC 13-7-5(g), containers and aboveground tanks used to store or process used oil at processing and re-refining facilities must be labeled or marked clearly with the words "Used Oil." Respondent did not label or mark clearly fifteen (15) used oil processing tanks at its former Ralston Avenue Site with the words "Used Oil."

o. Pursuant to 329 IAC 13-7-5(h) and IC 13-30-2-1, upon detection of a release of used oil to the environment not subject to the requirements of 40 CFR 280, Subpart F, an owner or operator must perform the clean-up steps of 329 IAC 13-7-5(h)(1-4). A person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste into the environment. Respondent failed to follow the clean-up steps for releases of used oil to the environment. Releases of used oil were observed around the east side of the holding tanks at Respondent's former Ralston Avenue Site.

On August 16, 2002, Respondent provided documentation to IDEM detailing the cleanup and decontamination steps taken at the Ralston Avenue Site before Respondent's departure from the facility in June of 2001.

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 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. All submittals required by this Agreed Order, unless notified otherwise in

writing, shall be sent to:

Brenda Lepter, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

3. Respondent is assessed a civil penalty of Forty Thousand One Hundred and Twenty Five Dollars ($40,125). Said penalty amount shall be due and payable to the Environmental Management Special Fund according to the following timeframe. The first payment of $10,125 shall be due within thirty (30) days of the Effective Date of this Agreed Order; the second payment of $10,000 shall be due on or before September 5, 2003; the third payment of $10,000 shall be due on or before March 5, 2004; and the final payment of $10,000 shall be due on or before September 5, 2004.

4. The civil penalty is payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

5. In the event that the civil penalty is not paid according to the timeframe required by Order paragraph 3 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.

6. This Agreed Order shall apply to and be binding upon the Respondent, its successors 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.

7. In the event that any terms of the 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.

8. 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.

9. 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 L. Johnston, Chief

Office of Enforcement Printed: __________________

Title: ________________________

Date: __________________________ Date: ________________________

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: ___________________________ By: ________________________

Office of Legal Counsel

Date: ___________________________ Date: ________________________

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2003.

 

 

For the Commissioner:

Signed on 3/17/03

___________________________

Felicia A. Robinson

Deputy Commissioner for

Legal Affairs