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. 2020-27319-H
					)
NuGenesis, 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 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, NuGenesis, Inc., owns and operates the solid waste processing facility, located at 1611 Hancel Parkway, in Mooresville, Morgan County, Indiana (“Site”). 

J Par Holdings, Inc owns the property at 1611 Hancel Parkway, in Mooresville, Morgan County, Indiana, parcel # 55-05-13-100-001.001-005.

3. Respondent holds a Solid Waste Processing Facility Permit # SW 55-04 (“Permit”) issued on April 11, 2019, which authorizes Respondent, as the permittee, to receive non-hazardous liquid and solid waste for bulking and/or solidification.

4. IDEM has jurisdiction over the parties and the subject matter of this action.

5. Pursuant to IC 13-30-3-3, on November 4, 2020, IDEM issued a Notice of Violation (“NOV”) to:

James Parker, President and

Registered Agent

NuGenesis, Inc.

1611 Hancel Parkway

Mooresville, Indiana 46158

6. During an investigation including an inspection on August 17, 2020, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to Permit Condition A2, the permittee must construct, operate, and maintain the solid waste processing facility (facility) as described in the approved plans and specification. The permittee must request approval before modifying the facility or facility operation procedures. The permit modification application requirements are in 329-IAC 11-9.

As noted during the inspection, Respondent installed an additional three (3) 2,000-gallon storage tanks in the secondary containment area without requesting approval before modifying the facility.

b. Pursuant to Permit Condition D1, the permittee must comply with the operational requirements in 329 IAC 11-13.5 (Operational Requirements), the Operating Plan submitted with the permit application dated December 28, 2016 (VFC #80414008, pp. 19-27 of 95) and as revised in the documents dated November 30, 2017 (VFC #82600862, pp. 2-3 and 6-12 of 40) and January 15, 2019 (VFC #82676248, pp. 3-5 and 8-9 of 37) and the following:

a. Perform daily housekeeping and maintenance of the storage and processing areas, keeping the processing facility and adjacent areas clean and litter free when not in use, following the cleanup procedures described in Section H, Daily Clean up Procedures of the Operating Plan submitted with the permit application dated December 28, 2016 (VFC #80414008, p. 24 of 95). The permittee must document routine cleanup in the facility operating record.

b. Monitor, each operating day, for potential problems in storage and processing areas as described in the Operating Plan submitted with the permit application dated December 28, 2016 (VFC #80414008, p. 25 of 95). Document the inspections, problems observed, and any corrective action performed in the facility operating record. Potential problems to detect include cracks, leaks, or damage to containment structures.

c. Promptly correct any nuisance, pollution conditions, or litter in the building or on the grounds.

As noted during the inspection, Respondent failed to:

1. cleanup a spill/leak on a concrete pad near a roll off box;

2. repair damage to the Aboveground Storage Tank (“AST”) secondary containment;

3. perform daily housekeeping and maintenance;

4. remove trash from inside of the AST secondary containment; and,

5. comply with the 10-day containerized waste processing exclusion [329 IAC 11-3-1(15)], as approved in IDEM’s March 14, 2014 “Transfer of Containerized Infectious Waste” letter (VFC #82676248, p. 9) and incorporated into Section D1. Specifically, Respondent opened sharps infectious waste shipping containers to repackage into smaller biohazard boxes, which is not allowed.

c. Pursuant to Permit Condition D2(a), the permittee must not accept waste or material containing PCBs from a source concentration of 50 ppm or greater regulated by 329 IAC 4.1

As noted during the inspection, Respondent accepted two (2) containers labeled “PCBs” without knowing the contents of the containers or where they were generated.

d. Pursuant to Permit Condition D5, the permittee must follow the “Waste Screening” procedure described in the Operating Plan submitted with the permit application dated December 28, 2016 (VFC #80414008, p. 21 of 95) to verify through profiling and analysis results and/or generator’s knowledge that the initial load is all of the following:

a. One of the waste types approved by Requirement D3;

b. Not prohibited by Requirement D2; and,

c. Compatible with the facility’s processes.

As noted during the inspection, Respondent failed to follow the Operating Plan and Permit when Respondent accepted the following:

1. Several containers located on the southeast side of the property were unlabeled with unknown contents.

2. Two (2) containers were labeled “PCBs” with unverified contents and no knowledge where they were generated.

3. Approximately 117 containers in storage areas A and B were unlabeled.

e. Pursuant to Permit Condition D7, the permittee must maintain the name of the generator, the generator’s address, and the type of wastes accepted in the facility’s operating record for three years.

As noted during the inspection, Respondent failed to obtain information required for accepted waste and/or maintain records for three (3) years, specifically, for public drop-offs and the containers located on the southeast side of the property.

f. Pursuant to Permit Condition D9, the permittee may store a maximum of 184 3 ft x 3 ft x 3.5 ft Gaylord containers of latex and aerosol paints and 96 55-gallon drums of oil base paints, corrosives, and toxic solids in the two container storage areas shown in Drawing A1.1, included with the document dated November 30, 2017 (VFC #82600862, p. 38 of 40).

As noted during the inspection, Respondent had 117 containers stored in Storage areas A and B without labels, which prevented an accurate determination of allowed storage limits for oil base paints, corrosives, or toxic solids.

g. Pursuant to Permit Condition D10, the permittee may process a maximum of 40 cubic yards of waste paint per day in the solidification process as described in the Operation Plan submitted with the document dated November 30, 2017 (VFC #82600862, p. 10 of 40) and as follows:

a. Solidified waste must pass the Method 9095A (Paint Filter Liquids Test) described in 329 IAC 11-2-20.4 before shipping it to a landfill.

As noted during the inspection, Respondent failed to conduct paint filter tests as required.

h. Pursuant to Permit Requirement D13, the permittee is approved to store a maximum of 124 2 ft x 2 ft x 2 ft boxes of used sharps infectious waste in sealed containers. This waste must be managed in compliance with 329 IAC 11-13.5-15 and 410 IAC 1-3 and may be stored for a maximum of 10 days before sent offsite for treatment.

As noted during the inspection, Respondent had in storage several boxes of infectious waste sharps containers which were unlabeled/undated, which prevented knowing the length of time in storage.

i. Pursuant to Condition D14, the permittee may store up to 20 3 ft x 3 ft x 3.5 ft Gaylord boxes of take back program pharmaceuticals which have been screened for controlled substances by a professional licensed or registered by the Indiana Board of Pharmacy and a law enforcement officer in the two permitted container storage areas before sending offsite for incineration.

As noted during the inspection, Respondent had pharmaceuticals stored on the southeast side of the property and not in one of the two permitted container storage areas.

j. Pursuant to Permit Condition D15, the permittee may store six 55-gallon drums of flammables and six totes of antifreeze in the tank secondary containment adjacent to the waste storage tank.

As noted during the inspection, Respondent stored flammables and antifreeze in two (2) 2,000-gallon ASTs, each partially full. Such storage is not allowed per Permit and has a high potential of exceeding the allowed container/tote storage quantities.

k. Pursuant to Permit Condition D16, the permittee must train operators as described in the Operation Plan submitted with the permit application date December 28, 2016 (VFC #80414008 p. 27 of 95) and to do the following:

a. Recognize the prohibited wastes listed in Requirement D2,

b. Use appropriate personal protective equipment when handling solid waste, and

c. Properly operate the waste processing equipment.

As noted during the inspection, Respondent failed to provide training for employees as required by the Permit.

l. Pursuant to Permit Condition D20. The permittee must maintain records and reports as required by 329 IAC 11-13.5-9:

a. Signed and dated training records for requirement D16 and D17 of this permit.

b. Waste determination records

c. Waste acceptance records for requirement D7

d. Inspection and maintenance reports for requirement D1

e. Quarterly Reports

f. All analytical test results of waste shipped by the facility.

As noted during the inspection, Respondent failed to maintain records and reports as required by 329 IAC 11-13.5-9.

m. Pursuant to Permit Condition E1, the permittee must maintain financial assurance in an amount not less than the estimated costs of closure and post-closure as required by 329 IAC 11-16-1 referencing 329 IAC 10-39. The permittee must submit signed originals of the financial assurance mechanism used to meet this requirement. The amount of the financial assurance mechanism must not be less than $105,000.

As noted during the inspection Respondent failed to have financial assurance.

n. Pursuant to Permit Condition F3, the permittee must submit signed originals of the financial assurance mechanism to cover the estimated costs of closure and post-closure specified in Requirement E1 within 45 days after the effective date of this permit.

As noted during the inspection Respondent has not submitted the required financial assurance mechanism since the issuance of the permit, dated April 11, 2019.

o. Pursuant to 329 Indiana Administrative Code (“IAC”) IAC 11-13.5-6(b), solid waste must be confined to the designated storage, processing, loading, and unloading areas of the processing facility. Solid waste processing that includes MSW must occur only in the enclosed building required in subsection (a)(1). The processing facility and adjacent areas must be maintained clean and litter free when not in use. (c) Solid waste may not be stored overnight at the processing facility except in: (1) Permitted storage areas; or (2) In covered transporting units.

As noted during the inspection, Respondent stored solid waste outside of the permitted storage areas along the southeast, south, and west side of the property.

p. Pursuant to 329 IAC 11-13.5-4 (b) (1), for facilities that grant access to the general public, for the use of the facility, the sign also must be posted at each point of vehicular access from a public road.

As noted during the inspection, Respondent did not have a sign posted on the public access road.

q. Pursuant to 329 IAC 13-4-3 (d)(1), containers and aboveground tanks used to store used oil at generator facilities must be labeled or marked clearly with the words “Used Oil”.

As noted during the inspection, Respondent failed to label one (1) used oil tank with the words “Used Oil.

r. Pursuant to 329 IAC 16-3-1(b), in order to be excluded from regulation under this article [Electronic Waste Management], small quantity hazardous waste generators and large quantity hazardous waste generators, including generators that meet any of the exclusions in subsection (a), must comply with the following:

(1) Storage and transportation of the e-waste must be in a manner to minimize the release of contaminants to the environment.

(2) Disposal must be accomplished according to 329 IAC 16-9.

(3) Storage of broken e-waste must be in:

(A) a building with a roof, floor, and walls; or

(B) an enclosed container.

Respondent has a Solid Waste Processing Facility Permit # SW 55-04 (“Permit”) which was issued on April 11, 2019, therefore, meeting the exclusions in subsection (a).

As noted during the inspection, Respondent had approximately eight (8) pallets of e-waste stored outside on the south side of the property exposed to the elements.

7. On December 23, 2020, Respondent submitted documentation that violations noted in Findings of Fact Paragraphs 4 – 14, 16, 18 – 20 have been corrected. A field verification to enure compliance will be completed.

8. 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 acknowledge 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 rules and permit conditions listed in the findings of fact above.

3. Within thirty (30) days of the Effective Date, Respondent shall comply with Permit Condition A2. Specifically, Respondent shall submit a Permit Modification, with as-builts, for the additional ASTs constructed at the Site.

4. Within thirty (30) days of the Effective Date, Respondent shall comply with Permit Condition D16. Specifically, Respondent shall develop and implement a training program for all applicable staff at the Site. Respondent shall submit documentation of the employee training within fifteen (15) days of completion.

5. Within thirty (30) days of the Effective Date, Respondent shall comply with Permit Condition E1 and F3. Specifically, Respondent shall submit documentation of financial assurance in an amount not less than the estimated costs of closure and post-closure as required by 329 IAC 11-16-1 referencing 329 IAC 10-39.

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

Linda McClure, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

7. Respondent is assessed a civil penalty of Forty-Nine Thousand Dollars ($49,000). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Nine Thousand Eight Hundred Dollars ($9,800). Said penalty amount shall be due and payable 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 this SEP will cost Thirty-Nine Thousand Two Hundred Dollars ($39,200). Within ten (10) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP.

The SEP Funds will go to Reconnecting to Our Waterways (ROW) to be used towards two needs of the organization.

ROW NEED #1: Central Canal Waterway (CCW). The committee has spent significant time educating the community about Central Canal's role in Indianapolis' drinking water system and leads efforts on environmental justice and brownfield redevelopment opportunities. On the 2021-2022 workplan the Central Canal neighbors will provide drinking water testing kits to help residents understand possible issues around lead in pipes and in drinking water. While the water testing is relatively low-cost and funded, there is no funding to provide real solutions for those who learn that their water is lead-contaminated. CCW will use the SEP investment to provide faucet-attached water filtration systems (with installation and instructions and additional filters) or filtered water pitchers (with instruction and additional filters) that would allow those communities to immediately and cost effectively filter out harmful lead from life's most basic need -- water.

ROW NEED #2: Fall Creek Waterway (FCW). As an urban waterway, the community is engaged in various activities around water quality improvement. There is an opportunity for large scale green infrastructure projects at schools and institutions along Fall Creek. The funds from the SEP investment will provide momentum and activation of sites along the waterway where reductions of pollution would make a big positive impact.

8. 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	Action	Amount
3	Failure to submit Permit Modification.	$200 per week
15	Failure to develop and implement an employee training program.	$100 per week
17	Failure to submit documentation of financial assurance.	$100 per week

9. 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.

10. 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

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

11. 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 11, above.

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

13. 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.

14. 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.

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

18. 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.

19. 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.

20. 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[s] may incur as a result of such communications with the U.S. EPA or any other agency or entity.

21. 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:  _________________________
	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 June 9, 2021
				Peggy Dorsey
				Assistant Commissioner
				Office of Land Quality