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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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COUNTY OF MARION |
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2010-19210-H |
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JEFFBOAT
LLC, |
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Respondent. |
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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 JeffBoat LLC (“Respondent”), which owns and /or operates the company with
United States Environmental Protection Agency (EPA) ID No. IND 006 371 330,
located at 1030 East Market Street, in Jeffersonville, Clark 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:
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Sean P. Gallagher |
Corporation Service Company,
Registered Agent |
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Corporate Counsel |
JeffBoat LLC |
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JeffBoat LLC |
251 E Ohio Ste 500 |
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American Commercial Lines |
Indianapolis, IN 46204 |
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1701 East Market Street |
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Jeffersonville, IN 47130 |
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5.
Respondent
most recently notified EPA of Large Quantity Generator activities on February
2009. Respondent builds inland river
barges.
6.
329
IAC 3.1 incorporates certain federal hazardous waste management requirements
found in 40 CFR Parts 260 through 270, and Part 273 including these identified
below.
7.
During
an investigation including inspections on March 16, 2010 and March 19, 2010,
conducted by a representative of IDEM, the following violations were found:
a. 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
March 16, 2010, inspection, Respondent stored 22 drums of hazardous waste
identified or listed in 40 CFR Part 261 without a permit.
On March 19, 2010,
Respondent provided documentation that the drums of hazardous waste stored for over
90 days were shipped off site on March 18, 2010.
b. 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
March 16, 2010, inspection, Respondent operated a hazardous waste facility
without having first obtained a permit from the department.
On March 19, 2010,
Respondent provided documentation that the containers of hazardous waste stored
for over 90 days were shipped off site on March 18, 2010.
c. 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
March 16, 2010, inspection, Respondent failed to notify the Commissioner of
hazardous waste storage activities.
On March 19, 2010,
Respondent provided documentation that the containers of hazardous waste stored
for over 90 days were shipped off site on March 18, 2010.
d. 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
March 16 2010, inspection, Respondent stored approximately twenty two (22)
55-gallon containers of D001, F003 and F005 hazardous waste on-site for greater
than 90 days without complying with 40 CFR Part 264 and 40 CFR Part 270. The 55-gallon containers were located in the
container storage area.
On March 19, 2010,
Respondent provided documentation that the containers of hazardous waste stored
for over 90 days were shipped off site on March 18, 2010.
e. Pursuant to 40 CFR 262.34(a)(2), a
generator may accumulate hazardous waste on-site for 90 days or less without a
permit, provided that the date when the accumulation begins is clearly marked
and visible for inspection on each container.
As noted during the
March 16, 2010 and March 19, 2010, inspections, Respondent accumulated eight (8) 55-gallon containers of D001,
F003 and F005 hazardous waste on-site, without a permit, and failed to clearly
mark hazardous waste containers with accumulation start dates. The 55-gallon containers were located in the
container storage area.
On January 28, 2011,
Respondent provided documentation that the containers were marked with the accumulation
start dates.
f. Pursuant to 40 CFR 262.34(a)(3), a
generator may accumulate hazardous waste on-site for 90 days or less without a
permit, provided that, while being accumulated on-site, each container and tank
is labeled or marked clearly with the words "Hazardous Waste."
As noted during the
March 16, 2010 and March 19, 2010, inspections, Respondent accumulated two (2)
55-gallon containers of D001, F003 and F005 hazardous waste on-site, without a
permit, and did not label or clearly mark hazardous waste containers with the
words "Hazardous Waste." The
55-gallon containers were located in the container storage area.
On January 28, 2011,
Respondent provided documentation that the containers were labeled or marked
clearly with the words "Hazardous Waste."
g. Pursuant to 40 CFR 262.34(a)(1)(i)
referencing 40 CFR 265.171, if a container holding hazardous waste is not in
good condition, or if it begins to leak, the generator must transfer the
hazardous waste from this container to a container that is in good condition.
As noted during the
March 16, 2010 and March 19, 2010, inspections, Respondent stored hazardous
waste in containers that were not in good condition. Two (2) 55-gallon containers of D001, F003
and F005 hazardous waste had bulging tops.
The containers were located in the container storage area.
h. Pursuant to 40 CFR 262.34(a)(1)(i)
referencing 40 CFR 265.174, a generator must inspect areas where containers are
stored, at least weekly, looking for leaks and bulging containers caused by
corrosion or other factors.
As noted during the
March 16, 2010 and March 19, 2010, inspections, Respondent failed to conduct
adequate weekly inspections of the container storage area where the bulging hazardous
waste containers were stored.
On January 28, 2011,
Respondent provided documentation that weekly inspections of the container
storage area would be conducted.
i. Pursuant to 40 CFR 262.34(a)(4)
referencing 40 CFR 265.31, facilities must be maintained and operated to
minimize the possibility of a fire, explosion, or any unplanned sudden or
non-sudden release of hazardous waste or hazardous waste constituents to air,
soil, or surface water which could threaten human health or the environment.
As noted during the
March 16, 2010 and March 19, 2010, inspections, Respondent failed to properly
manage the D001, F003 and F005 hazardous waste containers to minimize the
possibility of releases in the dock area near Cut #1 and Cut #3.
On January 28, 2011,
Respondent provided documentation that the releases were cleaned up.
j. Pursuant to 40 CFR 262.34(a)(4)
referencing 40 CFR 265.35, a generator must maintain aisle space to allow the
unobstructed movement of personnel, fire protection, equipment, spill control
equipment, and decontamination equipment to any area of facility operation in
an emergency.
As noted during the
March 16, 2010, inspections, Respondent failed to provide the required aisle
space in the container storage area.
On January 28, 2011,
Respondent provided documentation that aisle space in the container storage
area was provided.
k. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.52, the content of the
contingency plan must include the following: a description of appropriate
actions, arrangements with local emergency response teams, contact information
for the emergency coordinators, emergency equipment, and an evacuation plan.
As noted during the
March 16, 2010 and March 19, 2010, inspections, Respondent's contingency plan
did not include the addresses for the emergency coordinators.
On January 28, 2011,
Respondent provided documentation that the contingency plan was revised with the
addresses for the emergency coordinators.
l. Pursuant to 40 CFR 262.34(a)(4)
referencing 40 CFR 265.53, a copy of the contingency plan must be maintained at
the facility and submitted to all applicable local emergency response teams.
As noted during the
March 16, 2010 and March 19, 2010, inspections, Respondent failed to provide an
updated copy of the contingency plan to all local emergency authorities.
On January 28, 2011,
Respondent provided documentation that the revised contingency plan was sent to
all local emergency authorities.
m. Pursuant to IC 13-30-2-1(1), no person
shall discharge, emit, cause, allow, or threaten to discharge, emit, cause, or
allow any contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources, into the environment in any
form that causes or would cause pollution that violates or would violate 329
IAC 10-4-2, a rule adopted by the board under the environmental management
laws.
As noted during the
March 16, 2010 and March 19, 2010, inspections, Respondent allowed releases
into the environment of steel shot blast from blasting of piping for tank
barges. The releases were located near
the blasting tent.
On January 28, 2011,
Respondent provided documentation that the steel shot blast is no longer being released
and the blasting area has been cleaned up.
n. Pursuant to 329 IAC 10-4-2, no person
shall cause or allow the storage, containment, processing, or disposal of solid
waste in a manner which creates a threat to human health or the environment,
including the creating of a fire hazard, vector attraction, air or water
pollution, or other contamination.
As noted during the
March 16, 2010 and March 19, 2010, inspections, Respondent caused and/or allowed
solid waste, including, but not limited to the steel shot blast from blasting
of piping for tank barges, to be disposed at the Site in a manner which creates
a threat to human health or the environment.
The releases were located near the blasting tent.
On January 28, 2011,
Respondent provided documentation that the steel shot blast is no longer being
released and the blasting area has been cleaned up.
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. Upon the Effective Date, Respondent
shall ensure that the facility does not operate as a hazardous waste storage facility without
complying with the requirements of 40 CFR 264 and the permit requirements of 40
CFR 270.
3. Within thirty (30) days of the
Effective Date of this Agreed Order, Respondent shall decontaminate the
hazardous waste container storage area noted in Finding
7.d., hereinafter referred to as “the pad”, as follows:
a. remove
all wastes from the pad and appropriately dispose;
b. mechanically clean the pad by scraping,
sweeping, or other method, to remove all physical contamination;
c. inspect the pad for cracks. If cracks are detected, perform Item j. at
this point;
d. wash the pad with a high pressure steam
cleaner with detergent or appropriate solvent to remove the previously stored
waste materials;
e. rinse
the pad three (3) times with water;
f. collect the third (final) rinsate separately and analyze two (2) samples to show that
the pad’s surface meets the cleanup levels.
For inorganic and certain organic parameters, the cleanup levels of the rinsate will be based on the Maximum Contaminant Levels
(MCLs) of the National Primary Drinking Water Regulations (40 CFR 141). For the organic parameters without MCLs,
the cleanup levels of the rinsate will be based on
the analytical methods’ Estimated Quantitation Limits
(EQLs), as defined in SW-846. The
analytical parameters will be based on wastes previously stored on the pad;
g. the decontamination procedure shall be
repeated until the cleanup levels are met;
h. ensure that care is taken to prevent
migration of cleaning liquids from the pad area;
i. collect and dispose of all residues
and rinsates as hazardous waste unless the residues
and rinsates are analyzed and determined to be
non-hazardous;
j. sample the soil underlying any cracks
found in the inspection to check for contamination. If no contamination is found, seal the cracks
and proceed with Items d. through i. above;
k. if contamination is found, submit a
hazardous waste closure plan within sixty (60) days to IDEM for approval for
the container storage area in accordance with the provisions of 40 CFR 264
Subpart G, as incorporated by 329 IAC 3.1-9-1;
l. upon notice of approval of the closure
plan by IDEM, implement the approved plan in accordance with the time frames
contained therein.
4. Within fifteen (15) days of completing
the decontamination required in Order 3, Respondent shall submit documentation,
including sample results, that the decontamination has been completed to IDEM
for review. Analytical results submitted
to IDEM for review shall include signed chain-of-custody sheets, sampling
dates, analysis dates, analytical methods used, MCLs, EQLs and quality control
results. The quality assurance/quality
control (QA/QC) results shall include initial and continuing calibration
results, blank results, matrix duplicates, and matrix spike/matrix spike
duplicate results.
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, Respondent shall ensure compliance with 40 CFR
265.171. Specifically Respondent shall
ensure that, if a container holding hazardous waste is not in good condition,
or if it begins to leak, the generator must transfer the hazardous waste from
this container to a container that is in good condition.
7. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Idelia Walker-Glover, Enforcement
Case Manager |
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Office of Land Quality – Mail Code
60-02L |
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Indiana Department of
Environmental Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
8. Respondent
is assessed a civil penalty of Twenty One Thousand Four Hundred Dollars ($21,400). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. 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.
9. 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:
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$1,000 per week or part thereof |
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$500 per week or part thereof |
10. 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.
11. 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:
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Indiana Department of
Environmental Management |
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Cashier – Mail Code 50-10C |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
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 permit 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 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.
19. This Agreed Order shall remain in effect
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
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By:
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By: _________________________ |
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Nancy Johnston, Section
Chief |
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Enforcement Section |
Printed: ______________________ |
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Office of
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Title:
________________________ |
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Date: __________________ |
Date:
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of
Environmental Management |
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By: ________________________ |
By:
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Deputy Attorney General |
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Date:
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Date:
______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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2011. |
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For
the Commissioner: |
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Signed
September 14, 2011 |
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Bruce H Palin |
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Assistant
Commissioner |
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Office
of Land Quality |
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