STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

)

 

 

 

)

 

Complainant,

 

)

 

 

 

)

 

 

v.

 

)

Case No. 2020-26921-S

 

 

)

 

Frankfort Environmental

 

)

 

Development Company, Inc. dba

 

)

 

Walnut Creek Landfill,

 

)

 

 

 

)

 

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 Indiana Code (“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 IC 13-13-1-1.

 

2.            Respondent is Frankfort Environmental Development Company, Inc. dba Walnut Creek Landfill (“Respondent”), which owns/operates the landfill with Solid Waste Land Disposal Permit with Solid Waste Program ID 12-03 located at State Route 39 and County Road 300 North, in Frankfort, Clinton 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:

 

Frankfort Environmental

CT Corporation System

Development Company, Inc.

Registered Agent for

dba Republic Services

Frankfort Environmental

Walnut Creek Landfill

Development Company

Attn: Robert B Boyer, President

150 West Market Street, Suite 800

18500 North Allied Way

Indianapolis IN 46204

Phoenix, AZ 85054

 

 

 

Frankfort Environmental

 

Development Company, Inc

 

dba Republic Services

 

Walnut Creek Landfill

 

Attn: Brent Goodsell, Area President

 

832 Langsdale Avenue

 

Indianapolis, IN 46202

 

 

5.            Respondent was issued a Solid Waste Land Disposal Facility Permit, SWP ID 12-03, renewal on November 17, 2017.  The permit expires November 1, 2022.

 

6.            329 Indiana Administrative Code (“IAC”) 4.1 incorporates federal regulation of waste containing PCBs requirements found in 40 Code of Federal Regulations (“CFR”) Part 761, Subpart D, including those identified below.

 

7.            Pursuant to 329 IAC 10-20-23(a), Respondent implements a Special Waste Program to identify potential PCB waste.  As part of that program, Respondent requires generators to submit special waste profiles and supporting documentation about the waste such as a laboratory analysis of a representative sample for review and approval prior to acceptance of the waste.

 

8.            During the September 27, 2019 inspection, IDEM was informed that the initial review and ultimate approval (known as a Special Waste Profile) to receive waste generated by commercial and industrial customers is determined by the Republic Services office located in Arizona.

 

9.            Respondent asserts that once the special waste profile has been approved, the generator or its agent must prepare, complete, and sign a manifest for each load of special waste certifying that the load is consistent with the information in the profile.

 

10.           Arconic Engineered Structures (“Arconic”) generates wastewater treatment plant sludge that it sought to dispose of at the Walnut Creek Landfill.  Arconic submitted a special waste profile certifying that the material was not a regulated PCB waste and provided laboratory results of a sample that was purported to be representative of its sludge indicating that the waste contained 2.5 ppm PCBs on a wet weight basis and 7.48 ppm PCBs on a dry weight basis.

 

11.         Respondent asserts that it relied upon Arconic’s representations that its wastes to be sent to the Walnut Creek Landfill contained less than the regulatory limit of 50 ppm PCBs.

 

12.         Respondent asserts that on July 2, 2019, Heritage Interactive (“Heritage”) notified Respondent that it had mistakenly sent a load of sludge generated by Arconic to the Walnut Creek Landfill that contained 55 ppm of PCBs.  On July 3, 2019, Republic Services on behalf of Walnut Creek Landfill notified IDEM in accordance with 329 IAC 10-20-23(5) the acceptance of unauthorized waste. Respondent later learned that the 55 ppm concentration was reported on a wet basis, and the waste contained 97.9 ppm on a dry weight basis.  Respondent asserts it received the information approximately 7 hours after the waste had been received and incorporated into the municipal solid waste at the working face of the landfill.

 

13.         Respondent asserts that it immediately notified IDEM of this nonconforming waste.

 

14.         Upon notification of the nonconforming waste, Respondent asserts it immediately stopped work in the area, segregated the area from other active working areas, covered it with daily soil, and surveyed to delineate the area in question.

 

15.         Respondent began working with IDEM and Heritage to determine how to address the nonconforming waste.  While the parties were doing so, Arconic notified IDEM on September 24, 2019 that it had been using an incorrect testing protocol and that in addition to the July 2, 2019 nonconforming load, it had generated and Heritage had sent five additional nonconforming loads to Walnut Creek Landfill on March 5, 2019, March 18, 2019, May 8, 2019, May 31, 2019, and June 13, 2019.

 

16.         After receiving a copy of Arconic’s disclosure to IDEM, Respondent notified IDEM of these additional nonconforming waste events.

 

17.         Respondent asserts the Special Waste Program has been modified to provide training to employees to confirm that representative samples provided as part of a Special Waste Profile report PCB concentration on a dry weight basis or wet weight basis in accordance with 40 CFR 761.1(b)(4).

 

18.         Based upon the information submitted July 3, 2019, September 26, 2019, and inspections conducted by a representative of IDEM on July 17, September 10, September 27, November 19, and December 19, 2019, and January 15, 2020, the following violations were found:

 

a.            Pursuant to Permit Condition A1, permittee must comply with 329 Indiana Administrative Code (“IAC”) 10 except where alternative specification or requirements are noted in approval plans or this permit.

 

Respondent received loads of wastewater treatment plant sludge which exceeded 50 parts per million (“ppm”) polychlorinated biphenyls (PCBs”) in violation of 329 IAC 10.  Specifically, Respondent received the following loads of wastewater treatment plant sludge from Arconic Engineered Structures located in Lafayette, Indiana with PCBs exceeding 50 ppm:

 

1.            March 5, 2019, 11.17 tons at 54.7 ppm PCBs;

2.            March 18, 2019, 9.61 tons at 125.6 ppm PCBs;

3.            May 8, 2019, 11.17 tons at 57 ppm PCBs;

4.            May 31, 2019, 9.44 tons at 71.7 ppm PCBs;

5.            June 13, 2019, 7.98 tons at 56.6 ppm PCBs; and

6.            July 2, 2019, 8.8 tons at 97.9 ppm PCBs.

 

b.            Pursuant to 329 IAC 10-9-2(b)(8), a municipal solid waste landfill (“MSWLF”) may not accept for disposal waste or material containing PCB prohibited by 329 IAC 4.1.

 

Respondent received loads of wastewater treatment plant sludge which exceeded 50 ppm PCBs in violation of 329 IAC 10-9-2(b)(8).  Specifically, Respondent received the following loads of wastewater treatment plant sludge from Arconic Engineered Structures located in Lafayette, Indiana with PCBs exceeding 50 ppm:

 

1.            March 5, 2019, 11.17 tons at 54.7 ppm PCBs;

2.            March 18, 2019, 9.61 tons at 125.6 ppm PCBs;

3.            May 8, 2019, 11.17 tons at 57 ppm PCBs;

4.            May 31, 2019, 9.44 tons at 71.7 ppm PCBs;

5.            June 13, 2019, 7.98 tons at 56.6 ppm PCBs; and

6.            July 2, 2019, 8.8 tons at 97.9 ppm PCBs.

 

c.            Pursuant to 329 IAC 10-20-23, the owner, operator, or permittee of an MSWLF shall implement a program for detecting and preventing the disposal of regulated hazardous waste as determined by 40 CFR 261.3 or 329 IAC 3.1, PCB waste as defined by 40 CFR 761, and unauthorized waste.

 

Respondent received for disposal six (6) loads of wastewater treatment plant sludge containing PCBs exceeding 50 ppm PCBs, which is defined and regulated as a PCB waste according to 40 CFR 761, and which is regulated by 329 IAC 4.1.  This occurred despite Respondent’s program, which Respondent asserts was intended to prevent the disposal of PCB waste exceeding 50 ppm which is in violation of 329 IAC 10-20-23.

 

d.            Pursuant to 40 CFR 761.50(a), any person storing or disposing of PCB waste must do so in accordance with subpart D of this part.

 

Respondent received for disposal six (6) loads of wastewater treatment plant sludge containing PCBs exceeding 50 ppm PCBs, which is defined and regulated as a PCB waste by 40 CFR 761, and which is regulated by 329 IAC 4.1. The disposal of the PCB waste was not in accordance with subpart D, 40 CFR 761.50 through 40 CFR 761.79.

 

e.            Pursuant to 40 CFR 761.50(a)(6), any person storing or disposing of PCBs is also responsible for determining and complying with all other applicable Federal, State, and local laws and regulations.

 

Respondent received for disposal six (6) loads of wastewater treatment plant sludge containing PCBs exceeding 50 ppm PCBs, which is defined and regulated as a PCB waste by 40 CFR 761, and which is regulated by 329 IAC 4.1. The disposal of the PCB waste was not in accordance with subpart D, 40 CFR 761.50 through 40 CFR 761.79.

 

19.         Respondent submitted an Application for Risk Based Disposal pursuant to 329 IAC 4.1-4-1 and 40 CFR §761.61(c) to IDEM and the EPA on December 12, 2019.  After extensive negotiations with Respondent, on September 28, 2020 IDEM issued the “2nd Amendment for the PCB Risk-Based Cleanup & Disposal Approval.”

 

20.         Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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/permit conditions listed in the findings of fact above.

 

3.            Upon the Effective Date, Respondent shall comply with Permit Condition A1. Specifically, Respondent shall comply with 329 IAC 10 except where alternative specifications or requirements are noted in approved plans or this permit.

 

4.            Upon the Effective Date, Respondent shall comply with 329 IAC 10-9-2(b)(8).  Specifically, Respondent shall not accept PCB containing waste resulting from a source that contains 50 ppm or greater PCBs.

 

5.            Within thirty (30) days Respondent shall submit to IDEM, documentation indicating that representative samples of Special Wastes will be reviewed for PCB concentrations on a dry weight basis or wet weight basis in accordance with 40 CFR 761.1(b)(4) and that Respondent’s Special Waste Program includes, when applicable, additional testing measures by generators whose waste streams are not characteristically uniform upon generation.

 

6.            Respondent shall comply with the September 28, 2020 2nd Amendment for the PCB Risk-Based Cleanup & Disposal Approval issued by IDEM.

 

7.            Within thirty (30) days of the Effective Date, Respondent shall submit a permit minor modification application, as defined in 329 IAC 10-2-112, to incorporate requirements from the September 28, 2020 Approval into their Solid Waste Land Disposal Facility Permit ID 12-03 (“SW Program ID 12-03”) and renewal permits thereafter.

 

8.         All submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent to:

 

Christina Halloran, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

9.            Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Eighteen Thousand Dollars ($18,000).  Within thirty (30) days of the Effective Date, Respondent shall pay a portion of this penalty in the amount of Three Thousand Six Hundred Dollars ($3,600) to the Environmental Management Special Fund.  In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (“SEP”).  Respondent estimates that the SEP will be in excess of ($28,800) for the remediation of improperly disposed regulated solid waste located at 1190 Averitt Road, in Greenwood, Johnson County.  Remediation includes but is not limited to the disposal of processed waste tires and solid waste at a permitted municipal solid waste landfill. The value of disposal shall not include any solid waste fees or solid waste district fees imposed under state statute.

 

10.       In the event that Respondent does not complete its SEP within ninety days (90) 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.

11.       Upon the completion of the SEP, Respondent shall submit written documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP, including but not limited to, all cost documentation, periodic progress reports, final reports and documentation of disposal capacity provided for the cleanup of the improperly disposed solid waste.

 

12.         In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay stipulated penalties in the following amounts:

 

Paragraph

Stipulated Penalty

Order paragraph #5

$100 per week

Order paragraph #7

$100 per week

 

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

 

14.       Civil 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

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

 

15.       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 14, above.

 

16.       Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

 

17.       This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

 

18.       No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

 

19.       Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

20.       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.

 

21.       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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

 

22.       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.

 

23.       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 violations specified in the NOV.

 

24.       Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. EPA or any other agency or entity.

 

25.         This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

US Steel Corporation

 

 

By: _______

By:  _________________________

 

Jennifer Reno, Chief

 

 

Land 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 04/08/2021 By

 

Peggy Dorsey

 

Assistant Commissioner

 

Office of Land Quality