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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2017-24245-H |
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ETSS Inc. d/b/a Industrial Service Group |
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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 ETSS Inc. d/b/a Industrial
Service Group (“Respondent”), which owns/operates the facility with United
States Environmental Protection Agency (“EPA”) ID No. INR 000 019 596, located
at 5430 West 86th 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”) to.
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Mr. David Nirschl |
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d/b/a
Industrial Service Group |
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49 Boone
Village, #245 |
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Zionsville,
IN 46077 |
5.
Respondent notified of hazardous waste
activities at this location in February 2010.
Respondent notified as a hazardous waste, universal waste and used oil
transporter, conditionally exempt hazardous waste generator and transfer
facility.
6.
Respondent’s business provides field
remediation services and plant environmental services. Some of the services provided include 24-hour
Emergency Spill Response, non-hazardous soil/sludge solidification and disposal
and non-hazardous wastewater transportation.
7.
329 Indiana Administrative Code (“IAC”) 3.1
incorporates certain federal hazardous waste management requirements found in
40 Code of Federal Regulations (“CFR”) Parts 260 through 270, and Part 273
including those identified below.
8.
During an investigation including inspections
on March 29 and March 30, 2016 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 investigation,
Respondent did not make a hazardous waste determination on solid waste
contained in a 20 cubic yard roll-off on-site which spontaneously ignited twice
over the weekend of March 26, 2016. Respondent’s
representatives were unaware of the specific contents of the roll-off. Following the fire, some of the material was segregated
into fifteen (15) fifty-five (55) gallon drums and the remainder of waste (6.29
tons) in the roll-off was transported to a Permitted Solid Waste Municipal
Landfill.
On March 29, 2017, Respondent’s Lead
Supervisor stated that he was unaware of what caused a fire in the contents of
the roll-off. Respondent’s Vice
President stated he did not know how a battery came to be in the roll-off both
on April 4, 2016 and April 7, 2016. Respondent
failed to make a proper hazardous waste determination. According to Respondent, they were cleaning
out its facility in preparation for a move and were placing waste from the
facility into the roll-off that caught fire.
Some of the waste from Respondent’s facility that was put into the
roll-off may have been hazardous waste.
b. 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 investigation, Respondent failed to properly manage a twenty (20)
cubic yard roll-off to minimize a release to the environment. Specifically, a roll-off that caught fire on
March 26 and 27, 2016, may have contained hazardous waste and incompatible
hazardous materials.
c. 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. As noted
during the investigation, Respondent transported hazardous waste for offsite treatment, storage, or disposal without preparing
a manifest. Specifically, Respondent
offered the following shipments of hazardous waste without a manifest:
1)
March 27, 2016: Fifteen (15) fifty-five (55)
gallon drums of hazardous waste from Respondent’s 86th Street
location in Indianapolis to Respondent’s new location on Guion
Road in Indianapolis.
2)
March 30, 2016:
The same fifteen (15) fifty-five (55) gallon drums of hazardous waste
above were shipped from Respondent’s Guion Road
location back to Respondent’s 86th Street location.
3)
On May 18, 2016, Respondent manifested this
hazardous waste to a permitted treatment, disposal, and storage facility as a
F005 hazardous waste on manifest tracking number 014492241 JJK. The amount of hazardous waste manifested was
three (3) fifty-five (55) gallon drums totaling fifteen hundred (1500) pounds.
Respondent had the waste tested by an
outside laboratory for RCRA metals, flash, and pH, and the test results did not
exhibit a characteristic of toxicity for the tested RCRA metals nor the
characteristic of ignitability or corrosivity.
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 of the Agreed Order,
Respondent shall comply with 40 CFR 262.34.
Specifically, Respondent shall comply with all applicable hazardous
waste generator regulations.
4.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.11. Specifically, Respondent shall make a waste
determination on any solid waste generated in the future to determine if that
waste is hazardous. If the waste is
hazardous it shall be managed according to the applicable regulations.
5.
Upon the Effective Date of the Agreed Order,
Respondent shall ensure compliance with 40 CFR 262.20 and IC
13-30-2-1(12). Specifically, Respondent
shall not allow the transport of hazardous waste without a manifest.
6.
Within thirty (30) days of the Effective Date
of the Agreed Order, Respondent shall submit procedures that will be
implemented to ensure incompatible hazardous materials are not comingled/mixed
on-site. The procedures shall include
steps that will be taken to minimize the possibility of a release of hazardous
waste or hazardous waste constituents to the environment.
7.
Within thirty (30) days of the Effective Date
of the Agreed Order, Respondent shall submit copies of hazardous waste manifest
tracking numbers 014492248 JJK and 014492241 JJK with the signature of the
designated facility and copies of the one-time Land Ban notification and
certification for each of these waste streams.
8.
Within thirty (30) days of the Effective Date
of the Agreed Order, Respondent shall submit the procedures of how employees
track the different generators’ hazardous waste from the time it is picked up
from the generator and during transfer facility activities to ensure that the manifest
accompanies each generator’s waste stream during transport to the designated
facility.
9.
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
Manager |
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Office of Land Quality |
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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 |
10.
Respondent is assessed and agrees to pay a
civil penalty of Twelve Thousand Two Hundred Fifty Dollars ($12,250). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”.
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:
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Paragraph |
Penalty |
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6 |
$100 per
week late |
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7 |
$100 per
week late |
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8 |
$100 per
week late |
12.
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.
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:
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Indiana
Department of Environmental Management |
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Office
of Legal Counsel |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
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 and his 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 his
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 his obligation to comply with
the requirements of his 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.
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 Management |
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By:
_________________________ |
By: _________________________ |
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed:
______________________ |
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Office of
Land Quality |
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Title:
________________________ |
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Date: __________________ |
Date:
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COUNSEL FOR RESPONDENT: |
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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
THIS |
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DAY
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20__. |
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For the
Commissioner: |
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Signed 06/07/2018 By: |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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