STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2013-22004-H
					)
Special Waste Services, Inc.,					)
					)
Respondent.					)

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 Special Waste Services, Inc., (“Respondent”), which owns/operates a company with U.S. EPA ID number INR000023317, located at 5776 Prospect Drive, in Newburgh, Warrick 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:

Emery Beard, President	Joseph Emery Beard, Registered Agent for
Special Waste Services, Inc.	Special Waste Services, Inc.
5776 Prospect Drive	5776 Prospect Drive
Newburgh, IN 47630	Newburgh, IN 47630

5. Respondent notified EPA of hazardous waste transporter activities on January 1, 2001.

6. Respondent’s business is a septic hauler, waste transporter, and permitted septage treatment facility. The Septic Management Permit No. 897 was issued in July 2012 and expires in February 2015.

7. 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.

8. During an investigation including an inspection on September 10, 2013 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous.

As noted during the inspection, Respondent did not make a waste determination on the following solid waste:

Numerous containers of unknown material onsite including:

· four (4) fifty-five gallon containers on a pallet located south of the speed shop,

· three rusty (3) fifty-five gallon containers northeast of the speed shop, and

· one tote with “corrosive” labels.

Per Respondent’s submittal dated April 10, 2014, the four fifty-five gallon containers contained used fry oil. The containers were transported to Mahoney Environmental. The three fifty-five gallon containers contained wastewater from the mechanics shop. These containers were transported to INvironmental TECHnologies, LLC. Documentation was submitted for both. The tote is from Brenntag Mid-South Chemicals, Henderson, Kentucky. The material was sodium hypochlorite solution 12.5% product which is used on site as needed.

b. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage grinding, or another method acceptable to the solid waste management board.

As noted during the inspection, Respondent caused and/or allowed contaminants and/or solid waste to be deposited at the Site in a method which has not been determined by the solid waste management board to be acceptable. Specifically, Respondent conducted truck washing activities on gravel lots at the facility. The run-off from these activities, including detergent, ponded on the property.

Per Respondent’s submittal dated April 10, 2014, the liquid soap was spilt near the shop door on the edge of the gravel. The material was cleaned up and wash water has been directed into the holdings of the building. Respondent was asked to wash the trucks outside by the local sewer department.

c. Pursuant to 329 IAC 10-2-181, “storage” means the retention, containment, or accumulation of solid waste on a temporary basis in such a manner that is does not threaten or potentially threaten human health or impact or potentially impact the environment, for a period of more than twenty-four (24) hours, in such a manner as not to constitute disposal of the waste. It must be a rebuttable presumption that storage of waste for more than six (6) months constitutes disposal.

As noted during the inspection, Respondent caused and/or allowed solid waste to be stored in a manner which creates a threat to human health or the environment. Specifically, Respondent stored approximately 100 containers of various sizes, including 5 gallon containers, 55 gallon drums and 250 gallon totes, of waste fry oil and glycerin onsite for up to a year and did not rebut the presumption that the storage constituted disposal.

Per Respondent’s submittal dated April 10, 2014, the smaller containers are 3 gallons and had recently been delivered. The smaller containers are poured into the totes. The totes have been onsite for awhile, but the contents are removed for recycling by Mahoney Environmental on a regular basis. The pick-up schedule is normally every three weeks.

d. 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 inspection, Respondent caused and/or allowed contaminants and/or solid waste to be deposited at the Site. Specifically, Respondent conducted truck washing activities on gravel lots at the facility. The run-off from these activities, including detergent, ponded on the property.

Per Respondent’s submittal dated April 10, 2014, the liquid soap was spilled near the shop door on the edge of the gravel. The material was cleaned up and wash water has been directed into the holdings of the building. Respondent was asked to wash the trucks outside by the local sewer department.

Also noted during the inspection, Respondent stored approximately 100 containers of various sizes, including 5 gallon containers, 55 gallon drums and 250 gallon totes, of waste fry oil and glycerin onsite for up to a year and did not rebut the presumption that the storage constituted disposal.

Per Respondent’s submittal dated April 10, 2014, the smaller containers were 3 gallons and had recently been delivered. The smaller containers are poured into the totes. The totes have been onsite for awhile, but the contents are removed for recycling by Mahoney Environmental on a regular basis. The pick-up schedule is normally every three weeks.

e. Pursuant to Septage Management Permit No. 897, “Treatment Facility Approval” paragraph three (3), this facility is approved to receive for treatment wastewater (septage) including domestic septage and grease as defined in 327 IAC 7.1. Other waste materials are prohibited from being received for treatment.

As noted during the inspection, Respondent was processing car wash grit at its septage waste treatment facility.

Per Respondent’s submittal dated April 10, 2014, Respondent has ceased processing car wash grit. The car wash grit is being transported and disposed at the Advanced Disposal Blackfoot Landfill in Winslow, Indiana.

f. Pursuant to 329 IAC 11-2-30, processing means: (1) the method, system, or other handling of solid waste so as to change its chemical, biological, or physical form; (2) to render solid waste more amenable for disposal or recovery of materials or energy; or (3) the transfer of solid waste materials excluding the transportation of solid waste.

As noted during the inspection, Respondent’s activities at the Site meet the definition of processing, but Respondent failed to comply with the applicable requirements of 329 IAC 11 for solid waste processing activities. Specifically, Respondent was processing car wash grit waste.

g. Pursuant to 329 IAC 11-5-1, (a) unless otherwise addressed in this rule, all new and existing solid waste processing facilities must comply with applicable requirements of this article.

(b) This rule applies to the following solid waste processing facilities:

(1) Facilities that have construction or operating permits in effect on April 13, 1996.

(2) Facilities required to be permitted under the 2007 amendments to this article.

As noted during the inspection, Respondent is required to be permitted but failed to comply with the applicable requirements of 329 IAC 11 including, but not limited to, failing to obtain a solid waste processing facility permit.

Per Respondent’s submittal dated, April 10, 2014, Respondent has ceased processing car wash grit.

h. Pursuant to 329 IAC 11-9-1, (a) unless excluded in 329 IAC 11-3, any person who constructs or operates a solid waste processing facility as defined under 329 IAC 11-2-43 shall have a solid waste processing facility permit.

As noted during the inspection, Respondent failed to obtain a solid waste processing facility permit while operating a solid waste processing facility. Specifically, Respondent was processing car wash grit waste.

Respondent has ceased processing car wash grit.

i. Pursuant to Septage Management Permit No. 897, “Treatment Facility Approval”, Condition 11, the permittee must manage stockpiles of solids at the treatment facility as follows:

a. Stored on an impervious surface.

b. Stored for not longer than 30 days at any given time.

c. Maintained to have adequate run-on and run-off control methods.

d. Covered by a tarp, plastic sheet, or roof if stored for longer than 72 hours.

As noted during the inspection, Respondent stored solids in a roll-off without a cover. The roll-off receiving unpumpable solids was stored on-site for up to several months and was not covered.

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 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. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.11.

4. Within fifteen (15) days of the Effective Date, Respondent shall submit to IDEM disposal and transportation documentation for the waste fry oil glycerin which is being recycled at Mahoney Environmental and for the car wash grit which is being transported and disposed at Advanced Disposal Blackfoot landfill in Winslow, Indiana.

5. Upon the Effective Date, Respondent shall immediately cease conducting truck washing activities on the gravel lots unless Respondent collects the detergent water and properly manages and disposes at a permitted facility.

6. Upon the Effective Date, Respondent shall ensure it processes only waste which it is approved for in its Septage Facility Treatment Permit. Respondent is only approved to receive for treatment wastewater (septage) including domestic septage and grease as defined in 327 IAC 7.1.

7. Upon the Effective Date, Respondent shall not conduct any solid waste processing activities at the Site until such time that a permit application that meets the requirements of 329 IAC 11 has been submitted and approved by IDEM.

8. Upon the Effective Date, Respondent shall ensure solids generated on site from the septage treatment process are not stored for more than 30 days at any given time and are covered by a tarp, plastic sheet, or roof if stored for longer than 72 hours.

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

Christina Halloran, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

10. Respondent is assessed and agrees to pay a civil penalty of Seven Thousand Dollars ($7,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund in four (4) installments of $1,750.00 each. The first installment payment will be due within thirty (30) days of the Effective Date; the second installment shall be on or before March 31, 2015; third installment shall be due on or before April 30, 2015; and the final installment shall be due on or before May 31, 2015.

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:

Paragraph	Penalty
4	$200/week

12. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th 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.

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

Accounts Receivable

100 North Senate Avenue

Indianapolis, IN 46204-2251

14. 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 13, above.

15. This Agreed Order shall apply to and be binding upon Respondent 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_______	DAY OF	________________________,	20__.
				For the Commissioner:
				Signed on 01/16/15 By:
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality