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STATE OF
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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
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25706-H |
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Community Health Network, inc. d/b/a |
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Community Hospital east, |
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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 Community Health Network, Inc.
d/b/a Community Hospital East (“Respondent”), which owns/operates the facility with
United States Environmental Protection Agency (“EPA”) ID No. IND 072 068 141,
located at 1500 N. Ritter, 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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Bryan
Mills, President |
Karen Ann P.
Lloyd, Registered Agent |
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Community
Health Network, Inc. |
Community
Health Network, Inc. |
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d/b/a Community
Hospital East |
d/b/a
Community Hospital East |
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7330
Shadeland Station, Suite 200 |
7330
Shadeland Station, Suite 200 |
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Indianapolis,
IN 46256 |
Indianapolis,
IN 46256 |
5.
Respondent originally notified as a
Conditionally Exempt Small Quantity Hazardous Waste Generator (“CESQG”). Respondent is conducting major
renovations. Prior to the demolition of
the first building, Respondent notified as a Small Quantity Hazardous Waste
Generator (“SQG”) in 2016 and 2017. This
was for the disposal of obsolete chemicals within the building. Respondent then changed its hazardous waste
generator status in May 2018 to a CESQG.
6.
Respondent provides a wide variety of medical
services within the hospital setting.
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 an inspection
on September 6, 2018 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 hazardous waste determinations on the P-listed
pharmaceutical waste, which was solid waste generated by Respondent. Specifically, according to Respondent’s
representative during the inspection, the P-listed pharmaceutical waste was
being commingled with other generated hazardous waste streams at the
facility. The pharmaceutical waste
disposal guide utilized by Respondent identifies the P-listed waste to be
disposed into black containers which were not present during the inspection and
the hazardous waste manifests from 2016-2018 do not identify P-listed waste on
the manifest.
On July 29, 2019, Respondent submitted
steps that have been implemented for the managing of P-listed waste. An inspection will be conducted to verify
compliance.
b. Pursuant to 40 CFR 262.20(a), a
generator who sends hazardous waste off-site must ensure that manifests are
fully filled out and contain accurate information.
As noted during the inspection,
Respondent did not include all of the required information on manifest
shipments in 2016-2018. Specifically,
P-listed hazardous waste was being commingled with other hazardous waste
streams at the facility and the manifests did not include P-listed waste codes.
On May 28, 2019, Respondent submitted
uniform hazardous waste manifest for the P-listed waste. The manifest had additional hazardous waste
codes listed in Section 14 of the manifest but lacked the quantity of the P-listed
waste. In the July 29, 2019 response,
Respondent submitted a “P-listed Waste Tracking
Record 2019” which had the
monthly P-listed waste quantities recorded.
c.
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
deterioration caused by corrosion or other factors.
As noted during the inspection,
Respondent failed to conduct weekly inspections of the container storage area. The last weekly inspection was conducted on
August 3, 2018.
On May 28, 2019 and on July 29, 2019,
Respondent submitted a copy of the “Hazardous
Waste Storage Area Weekly Inspection Checklist”. An inspection will be conducted to verify
compliance.
d.
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 inspection,
Respondent accumulated hazardous waste on-site, without a permit, and did not
mark hazardous waste containers with accumulation start dates. Specifically, Respondent had one (1) eighteen
(18) gallon container of multi-coded waste being stored in the Pharmaceutical
Waste Room which was not marked with the start of accumulation date.
On May 29, 2019, Respondent submitted a
response stating that the Environmental Services (“EVS”) transporters and EVS
supervisor will ensure that the containers are properly closed/sealed and the
date is marked on each container when placed in a central pharmaceutical waste
holding room. An inspection will be
conducted to field verify.
e.
Pursuant to 40 CFR 262.34(a)(4) referencing 40
CFR 265.16(a), (b), & (c), facility personnel must complete a program of
classroom instruction or on-the-job training that teaches them to perform their
duties in compliance with the hazardous waste management rules. Employees must
be trained within six months after their date of hire and must take part in an
annual review of the initial training.
As noted during the inspection,
Respondent did not provide employees with annual hazardous waste training. Specifically, the last hazardous waste
management training for those employees tasked with the hazardous waste
management duties occurred in 2016.
On July 29, 2019, Respondent submitted
training documentation.
f.
Pursuant to 40 CFR 262.34(a)(4) referencing 40
CFR 265.16(d)(1-4), certain hazardous waste training related documents and
records including job title, job descriptions, a description of the type and
amount of required training, and completion documents with respect to the
hazardous waste management training must be maintained on-site.
As noted during the inspection,
Respondent did not maintain all of the required hazardous waste training
related documents and records on-site.
Specifically, the required training documents need to be updated. The job descriptions and job duties for the
employees involved with hazardous waste management duties need to be updated as
not all the job duties were spelled out in the job descriptions. Additionally, job titles were not consistent
when comparing the job description for a certain position to the title listed
by the employee on their training form.
On July 29, 2019, Respondent submitted
training documentation.
g. 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 inspection,
Respondent manages hazardous waste containers in satellite accumulation areas
on the nursing units of the hospital. Because Respondent was comingling P-listed
waste with other hazardous waste streams, Respondent had exceeded the one quart
allowance for acutely hazardous waste.
One (1) eighteen (18) gallon satellite accumulation container each of
comingled hazardous wastes was being managed in satellite accumulation
containers located within in Building 2 on the following nursing units: 5th
Floor South Tower, 3rd Floor North Tower, 2nd Floor South
Tower, and 2nd Floor North Tower.
On July 29, 2019, Respondent submitted
steps that have been implemented in the managing of P listed waste. An inspection will be conducted to verify
compliance.
h.
Pursuant to 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a), a container holding
hazardous waste must always be closed during storage, except when it is
necessary to add or remove waste.
As noted during the inspection,
Respondent did not store the satellite hazardous waste accumulation containers
closed in Building 2 on the following nursing units: 5th Floor South
Tower, 2nd Floor South Tower, and 2nd Floor North Tower. Each nursing unit had one (1) eighteen (18)
gallon satellite hazardous waste container containing comingled hazardous waste.
On May 29, 2019, Respondent submitted a
response stating clinical staff have been educated to keep containers of
hazardous waste closed except to add or remove waste while in storage. An inspection will be conducted to verify
compliance.
i.
Pursuant to 329 IAC 3.1-16-2(4), each lamp or a
container or package in which such lamps are contained must be labeled or
marked clearly with the phrase “Universal Waste-Lamp(s)” or “Waste Lamp(s)” or
“Used Lamp(s)” or with other words that accurately identify the universal waste
lamps.
As noted during the inspection, Respondent
had four (4) containers of spent fluorescent bulbs stored in the parking garage
that were not labeled or marked with words to accurately identify the contents.
In the May 29, 2019 response, Respondent
submitted photos of the spent fluorescent bulbs containers labeled “Universal
Waste”. An inspection will be conducted
to verify compliance.
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 ensure all appropriate hazardous waste codes are identified on
the hazardous waste manifest.
Specifically, the acute hazardous waste codes and quantity, when
applicable, shall be included on the hazardous waste manifest.
4.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174. Specifically, Respondent shall conduct weekly
inspections in areas where hazardous waste containers are being stored looking
for leaks, and deterioration caused by corrosion or other factors.
5.
Upon the Effective Date of the Agreed Order,
Respondent shall ensure hazardous waste containers accumulating on-site are
clearly marked with a date the accumulation begins and that the date on the
container is visible for inspection.
6.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.173(a). Specifically, Respondent shall ensure in the
future containers holding hazardous waste are closed during storage, except
when it is necessary to add or remove waste.
7.
Within thirty (30) days of the Effective Date
of the Agreed Order, Respondent shall comply with 40 CFR 262.34(a)(4) referencing 40 CFR 265.16. Specifically, Respondent shall conduct annual
and/or initial training on facility personnel whose duties are responsible with
hazardous waste management. Within ten
(10) days of completing the training for the Network Safety Manager(s),
Environmental Services (“EVS”) Transporter(s), Environmental supervisors, and
EVS Director. Respondent shall submit to
IDEM training documentation. This shall
include the type of training received, date of training, the name of the
employee, and employee’s job description and job duties.
8.
Upon the Effective Date of the Agreed Order,
Respondent shall comply with 329 IAC 3.1-16-2(4). Specifically, Respondent shall label or
clearly mark each lamp or a container or package in which lamps are contained
with the phrase “Universal Waste-Lamp(s)” or “Waste Lamp(s)” or “Used Lamps(s)”
or with other words that accurately identify the universal waste lamps.
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 Four Thousand One Hundred and Dollars ($4,100). 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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Order
paragraph #7 |
$100/week |
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 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.
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 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.
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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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Linda L.
McClure, Chief |
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Land Enforcement
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Printed: ______________________ |
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Compliance
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Office of
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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
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________________________,
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For the
Commissioner: |
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Signed
01/15/2020 By: |
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Peggy Dorsey |
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Assistant
Commissioner |
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Office of
Land Quality |
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