STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

BEE ENVIRONMENTAL MANAGEMENT, INCORPORATED,

Respondent.

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Case No. 2007-16675-H

 

 

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 Bee Environmental Management, Incorporated (“Respondent”), which  owns and/or operates a facility with United States Environmental Protection Agency (“EPA”) ID No. INR 000102756, located at 660 Andico Road, No. E, in Plainfield, Hendricks County, Indiana (the "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 via Certified Mail to:

 

M. Susan Cloe, President

M. Susan Cloe, Registered Agent for

Bee Environmental Management, Incorporated

Bee Environmental Management, Incorporated

4527 Redcliff S. Ln

660 Andico Road, # E

Plainfield, Indiana  46168

Plainfield, Indiana  46168

 

5.                  Respondent notified EPA of Conditionally Exempt Small Quantity Generator activities on May 10, 2001.  Respondent is also a commercial transporter of wastes.

 

6.                  Respondent is a full service environmental company which provides a line of services, including transport of hazardous and non-hazardous wastes.

 

7.         329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270 and Part 273, including those identified below.

 

8.         During an investigation, including inspections on February 7 and March 5, 2007, conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to IC 13-30-2-1(12), a person may not cause or allow the transportation of a hazardous waste without a manifest if a manifest is required by law.

As noted during the investigation, Respondent caused or allowed the transportation of a hazardous waste without a manifest as required by law.  Respondent removed wastes as non-hazardous non-regulated wastes from Insley Industrial Park, LLC on December 22, 2006.  The contents of at least eight (8) containers were later determined to be hazardous wastes (D002/D006/D007/D008).

 

b.         Pursuant 40 CFR 263.20, a transporter may not accept hazardous waste from a generator unless it is accompanied by a manifest signed in accordance with the provisions of 40 CFR 262.20.

As noted during the investigation, Respondent accepted hazardous waste from a generator without a manifest.

 

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 investigation, Respondent accepted and stored hazardous waste identified or listed in 40 CFR Part 261 without a permit at the Site.  At least eight (8) containers of hazardous wastes (D002/D006/D007/D008) removed from Insley Industrial Park, LLC were taken to and stored at the Site for approximately thirty (30) days.

 

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 IDEM.

As noted during the investigation, Respondent operated a hazardous waste facility without having first obtained a permit from IDEM.

 

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 investigation, Respondent failed to notify the Commissioner of hazardous waste storage activities.

 

f.                    Pursuant to 40 CFR 264.1, owners and operators of all facilities which treat, store, or dispose of hazardous waste shall comply with the applicable requirements of 40 CFR 264.

 

As noted during the investigation, Respondent failed to comply with the requirements of 40 CFR 264 while operating as a hazardous waste storage facility.

 

g.                  Pursuant to IC 13-30-2-1(11), no person shall deliver any hazardous waste to a hazardous waste facility that is not approved or does not hold a permit from IDEM.

 

As noted during the investigation, Respondent delivered hazardous waste to a facility that is not approved or does not hold a permit from IDEM.

 

9.         In recognition of the settlement reached, Respondent waive 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.         Within twenty (20) days of the Effective Date of this Agreed Order, Respondent shall provide IDEM with any transport and disposal receipts and/or any records of reuse for the contents of all containers and tanks removed from Insley Industrial Park, LLC.

 

3.         Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit four (4) copies of a hazardous waste closure plan for the area at the Site where hazardous waste had been stored to IDEM for approval.  This closure plan shall be completed in accordance with the provisions of 40 CFR 264 Subpart G, as incorporated by 329 IAC 3.1-9-1.

 

4.         Within ten (10) days of notice of IDEM’s approval of the closure plan, Respondent shall implement the plan as approved and in accordance with the time frames contained therein.

 

5.         In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM's notice.  After three (3) submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM.  The approved plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

 

6.         Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with IC 13-30-2-1(12).  Specifically, Respondent shall ensure that it does not cause or allow the transportation of a hazardous waste without a manifest.

 

7.                  Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 263.20.  Specifically, Respondent shall ensure that it does not accept hazardous waste from a generator unless it is accompanied by a manifest signed in accordance with the provisions of 40 CFR 262.20.

 

8.         Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with IC 13-30-2-1(11).  Specifically, Respondent shall ensure that it does not deliver any hazardous waste to a hazardous waste facility that is not approved or does not hold a permit from IDEM.

 

9.         All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Brenda Lepter, Enforcement Case Manager

Office of Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

10.       Respondent is assessed a civil penalty of Fourteen Thousand Dollars ($14,000).  Said penalty amount shall be due and payable to the Environmental Management Special Fund in four (4) installments of $3,500 each.  The first installment shall be due within thirty (30) days of the Effective Date of this Agreed Order.  The second installment shall be due on or before October 31, 2007; the third installment shall be due on or before January 31, 2008; and the final installment shall be due on or before April 30, 2008.  In the event that the civil penalty is not paid according to the timeframes addressed in 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.

 

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

 

Failure to comply with Order Paragraph No. 2

$500 per week

 

 

Failure to comply with Order Paragraph No. 3

$500 per week

 

 

Failure to comply with Order Paragraph No. 4

$500 per week

 

 

Failure to comply with Order Paragraph No. 5

$500 per week

 

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

 

13.             Civil and stipulated 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

14.             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.

 

15.             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.

 

16.             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.

 

17.             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 permit or any applicable Federal or State law or regulation.

 

18.             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.

 

19.             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.

 

20.             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 the EPA or any other agency or entity.

 

21.             This Agreed Order shall remain in effect until IDEM issues a Letter of Compliance to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Nancy L. Johnston

 

Printed:

 

 

Office of Enforcement

 

Title:

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2007.

 

 

For the Commissioner:

 

 

 

Signed on August 7, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement