STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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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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Case No. 2020-26921-S |
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Frankfort Environmental |
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Development Company, Inc. dba |
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Walnut Creek Landfill, |
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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 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 |
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Frankfort
Environmental |
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Development
Company, Inc |
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dba
Republic Services |
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Walnut
Creek Landfill |
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Attn:
Brent Goodsell, Area President |
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832
Langsdale Avenue |
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Indianapolis,
IN 46202 |
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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: |
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Department of Environmental Management |
US Steel Corporation |
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By: _______ |
By:
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Jennifer
Reno, Chief |
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Land 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
OF |
________________________, |
20__. |
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For the Commissioner: |
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Signed on 04/08/2021 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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