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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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Complainant, |
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Case No.
2013-21399-H & |
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2013-21526-H |
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Heritage Environmental Services, 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 Heritage Environmental Services,
LLC (“Respondent”), which owns/operates
Heritage Treatment Center with United States Environmental Protection Agency
(EPA) ID No. IND 093 219 012, located at 7901 West Morris Street, 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) via Certified Mail to.
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Mr. Kenneth Price |
Mr. Thomas L. Matrix, Registered
Agent for |
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Heritage Environmental Services, LLC |
Heritage Environmental Services, LLC |
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P.O. Box 68123 |
5400 W 86th Street |
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Indianapolis, IN 46268 |
Indianapolis, IN 46268 |
5.
Respondent notified the U.S. EPA of hazardous
waste activities on July 25, 1980.
Respondent is an industrial waste treatment and recycling facility. Respondent is also a large quantity hazardous
waste generator, large quantity handler of universal waste, used oil transfer
facility and used oil transporter.
6.
Respondent was first issued
a RCRA Part B permit (hereinafter referred to as “Permit”) for treatment and
storage of hazardous waste on December 28, 1990. Respondent was issued
a Final Permit Renewal on December 31, 2007 which expired January 18, 2013. Respondent’s Permit was renewed effective May
4, 2013.
7.
Respondent was issued a Violation Letter
dated April 23, 2012 addressing the December 16, 2011, January 25 and 27, 2012
inspections. IDEM staff received a
response dated May 23, 2012 to the Violation Letter.
8. 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.
9. During an investigation including
inspections on December 16, 2011, January 25, 27, February 28, August 27,
November 2, 2012 and December 10, 11, and
12, 2012 conducted by a representatives of IDEM, the following
violations were found:
a. Pursuant to 40 CFR 262.34(c)(1), a
generator may accumulate as much as 55 gallons of hazardous waste or one quart
of acutely hazardous waste in containers at or near any point of generation (in
a satellite container), and under the control of the operator of the process generating
the waste.
As noted during the December 2012
inspections, Respondent accumulated hazardous waste in a satellite accumulation
container that was not under the control of the operator of the process
generating the waste. Specifically,
Respondent had one (1) 1/2 gallon satellite accumulation poly container labeled
Hazardous Waste Cyanide and NASH stored on a shelf with other sample
retains. The full container was not near
the point of generation or under the control of an operator. The Cyanide Destruction Units have not been operating
since September 2012.
Respondent contends this finding was corrected during the December 10-12, 2012 inspections.
b. 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 December 2012
inspections, Respondent accumulated hazardous waste on-site, without a permit,
and did not label or clearly mark hazardous waste containers with the words
"Hazardous Waste."
Specifically, the following hazardous waste containers:
a)
A vacuum truck with a hose used during
maintenance activities to clean out a grated floor pit/sump of hazardous waste
solids located on the east side of the building nearby Tanks E-1, E-2, and E-3
and
b)
one sixteen
gallon partially full container located on the west side of the drum warehouse
building near Container Storage Area (CSA) 5.
According to facility personnel the
sixteen gallon container was being reprocessed but the
employee who was working in that area went on break and left the unlabeled
container unattended.
Respondent contends these findings were corrected during the December 10-12, 2012 inspections.
c.
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 December 2012
inspections, Respondent accumulated hazardous waste on-site, without a permit,
and did not mark hazardous waste containers with accumulation start dates. Specifically, one five-thousand gallon tanker
located north of the Plant 1 offices outside in the parking lot was labeled hazardous waste but was incorrectly marked with
a designated start of accumulation date of 11/01/2012. The tanker should have been marked with the
date 12/03/2012 according to the facility representative.
Respondent contends these findings were corrected during the December 10-12, 2012 inspections.
d.
Pursuant to Permit Condition IV.G.1 and 40
CFR 264.193(e)(2)(iv), the secondary containment tank vault system must be
provided with an impermeable interior coating or lining that is compatible with
the stored waste and that will prevent migration of waste into the concrete.
As noted during the December 2012
inspections, Respondent did not properly manage the impermeable coating in the
secondary containment system for the permitted wastewater treatment tanks in
Containment Area #10 of Plant 1 and the Polishing Building containment area where
the permitted hazardous waste Tanks U and W are located. Specifically, the containment systems in both
areas were observed with spalling,
cracks, and otherwise deteriorated impermeable coating.
Respondent contends these findings were corrected during the December 10-12, 2012 inspections.
e.
Pursuant to Permit Condition IV.H.1. &
3., Attachment F., 40 CFR 264.195(b)(3), and 40 CFR 264.15(c)(d), the owner or
operator must remedy any deterioration or malfunction of equipment or
structures which the inspection reveals on a schedule which ensures that the
problem does not lead to an environmental or human hazard. Where a hazard is imminent or has already
occurred, remedial action must be taken immediately.
As noted during the December 2012
inspections, Respondent did not properly manage the impermeable coating in the
secondary containment system for the permitted wastewater treatment tanks in
Containment Area #10 of Plant 1 and the Polishing Building containment area where
the permitted hazardous waste Tanks U and W are located. Specifically, the containment systems in both
areas were observed with spalling,
cracks, and otherwise deteriorated impermeable coating which was not documented
in the tank inspection records.
Respondent provided on March 26, 2014
an inspection finding form dated December 27, 2012 which noted deficiencies to
the coatings and that they were fixed on January 2, 2013.
f.
Pursuant to Permit Condition II.C., and
Attachment C. Section 3.6, Heritage will perform dose-response testing to
maintain efficient stabilization formulations for wastes shipped off-site and
represented as meeting Land Band Restriction (LDR) treatment standards. The dose/response testing will
be performed monthly.
As noted during the December 16, 2011
and January 25 & 27, 2012 inspections, monthly dose response records prior
to April 17, 2012 for waste stream (WS) 9000-431 (debris) and prior to March 12, 2012 for WS 9000-236 (filtercake, no debris) were not available for inspection.
This finding
was corrected by the Respondent based on correspondences dated May 23, 2012,
March 26, 2014, and April 21, 2014.
g.
Pursuant to Permit Condition I.H.(6) and 40 CFR 264.73, the owner or operator must keep a
written operating record to include the method(s) and date(s) of treatment of
each hazardous waste received by the facility.
As noted during the December 16, 2011
inspection, the operating record did not include records verifying that the
method of treatment to meet LDR was being conducted in
dump floors in the containment buildings.
Specifically, as an example, on review of treated wastes in DF4, on
12/15/11 and DF1 on 12/15/11, it was not clear that the designated treatment [as
required by approved stabilization reagent formulations determined through
monthly dose/response tests in the Permit WAP] had been performed. Records were also not made
available for dose/response tests in conjunction with “special formulas” needed
on one-time waste stream special soil projects. In addition, some of the
records in the Treatment Logs did not identify the units being
used [e.g., % or lbs or other applicable units].
10. 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.
Within thirty (30) days of the Effective
Date, Respondent shall submit documentation to IDEM of the repairs and steps
that were taken to remedy the deteriorated impermeable
coatings for the secondary containment systems for Containment Area 10, around
the back side of “B” and “F” Tanks and Tanks U & W located within the
Polishing Building.
4.
Upon the Effective Date, Respondent shall ensure
the inspection logs also include the time of the inspection and the date and
nature of any repairs or other remedial actions.
5.
Upon the Effective Date, Respondent shall
document the dose/response sample ID number representing the selected treatment
formulation for each treated batch on the treatment log. Submit within thirty
(30) days a copy of the treatment log documenting the dose response sample ID
treatment formulation for each treated batch.
6.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Christina Halloran, Enforcement Case
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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 |
7.
Respondent is assessed
and agrees to pay a civil penalty of Twenty Five Thousand Dollars
($25,000). Within thirty (30) days of
the Effective Date, Respondent shall pay a portion of this penalty in the
amount of Five Thousand Dollars ($5,000) 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 Twenty Thousand Dollars
($20,000) 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:
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Meredith Gramelspacher |
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Indiana Brownfields
Program - SEP |
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100 N. Senate Avenue |
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Room 1275 |
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Indianapolis, Indiana 46204 |
8.
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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Penalty |
Stipulated
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$500 per week |
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$500 per week |
9.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant may
notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
10.
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 |
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 their
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 the EPA
or any other agency or entity.
19.
This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental
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By: _________________________ |
By:
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Nancy
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Enforcement
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Printed: ______________________ |
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Office of
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUSEL FOR INDIANA FINANCE
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For the Indiana Brown fields Program |
COUNSEL FOR RESPONDENT: |
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By:____________________ |
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Director
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By: ________________________ |
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Date:__________________ |
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COUNSEL &/OR AUTHORIZED |
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REPRESENTATIVE |
Date: ______________________ |
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By:_____________________ |
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Date:___________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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DAY
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20__. |
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For the
Commissioner: |
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Signed
06/16/2014 By:_ |
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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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