STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case Nos. 2020-27419-H & 2020-27421-S
					)
CGS Services, 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 is CGS Services, Inc. (“Respondent”), who owns/operates the Caldwell Landfill with Solid Waste Disposal Facility Permit, SWP Program ID No. 73-01, located at 2920 East SR 52, in Morristown, Shelby 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:

CGS Services, Inc.	CT Corporation System, Registered Agent
Attn: Richard Burke, President	CGS Services, Inc.
CGS Services, Inc. dba Caldwell Landfill	334 North Senate Avenue
90 Fort Wade Rd, Suite 200	Indianapolis, IN 46204
Ponte Vedra, FL 32081

5. Respondent was issued a Solid Waste Disposal Facility Permit, SWP ID 73-01 renewal on May 17, 2019 (VFC# 82776044). The permit expires December 20, 2023.

329 Indiana Administrative Code (“IAC”) 3.1 incorporates federal hazardous waste management requirements found in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273, including those identified below.

6. During an investigation including an inspection on July 9, 2020, and a record on September 7, 2020, conducted by representatives of IDEM, the following violations were found:

a. Pursuant to Permit Requirement A1, the permittee must comply with 329 IAC 10 except where alternative specifications or requirements are noted in approved plans or this facility permit renewal dated May 17, 2019.

Respondent accepted, disposed, and treated hazardous waste from off-site. Specifically, Respondent accepted thirty-two (32) 235-gallon totes of 2, 4-D Dichlorophenoxyacetic Acid (“2, 4-D”) hazardous wastewaters from EQ Industrial Services (“EQ”) located in Indianapolis, Indiana. The wastewaters were generated at Helena Industries located in Des Moines, Iowa.

b. Pursuant to 329 IAC 10-3-2(b), no hazardous waste that is regulated by 329 IAC 3.1 shall be disposed at any solid waste land disposal facility regulated under this article.

Respondent unknowingly accepted thirty-two (32) totes of 2, 4-D wastewaters. The wastewaters were accepted into the Site’s on-site solidification pit. The wastewaters were solidified with fiberglass and then disposed of in the landfill. The analytical data indicated a level of 78.5 ppm of 2, 4-D (D016) hazardous waste. In order to be characteristically (D016) non-hazardous, the result for 2, 4-D would have had to be below 10 ppm. However, the wastewaters were also determined to also be a listed hazardous waste per the “mixture rule.”

c. Pursuant to 329 IAC 10-20-23, the owner, operator, or permittee of a Municipal Solid Waste landfill (“MSWLF”) shall implement a program at the MSWLF for detecting and preventing the disposal of regulated hazardous waste as determined by 40 CFR 261.3 or 329 IAC 3.1, polychlorinated biphenyl’s (PCB) waste as defined by 40 CFR 761 and unauthorized solid waste.

Respondent has an acceptance program in place; however, the program is based upon a generator’s proper characterization of its waste stream, including the furnishing of analytical data that accurately describes the waste actually shipped to the site.

On June 25, 2020, EQ shipped the hazardous waste totes under an existing waste profile in which EQ certified that the material was not hazardous and, on a manifest, indicating that the waste was non-hazardous.

Respondent contends along a parallel track, EQ was in the process of renewing its waste profile with Respondent, which EQ knew would take one to two weeks to complete. As part of its submittal for the renewal of the waste profile, on June 22, 2020, EQ sent Respondent analytical data showing that its waste stream contained a concentration of 2,4-D of 78.5 ppm, but which EQ misinterpreted as 7.85 ppm. The upper TCLP characteristic limit for 2, 4-D is 10 ppm. On June 26, 2020, Respondent informed EQ of the results and asked it to verify the accuracy of the data. On July 2, 2020, EQ notified the Respondent that the new analytical results came from the waste that was taken to the Site on June 25, 2020, under the existing profile. This is the first time Respondent learned that the new data related to a waste stream it had already accepted under the existing profile.

On July 3, 2020, Respondent self-reported the receipt of hazardous waste (represented by EQ as non-hazardous) to IDEM.

d. Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility shall notify the commissioner of such activities on forms provided by the commissioner.

Respondent accepted, disposed, and treated hazardous waste (U240, D016) without properly notifying the commissioner prior to conducting these activities.

e. Pursuant to 40 CFR 270.1(c), a permit is required for the treatment, storage, and disposal of any hazardous waste as identified or listed in 40 CFR Part 261.

Respondent accepted, disposed, and treated hazardous waste (U240, D016) without having first obtaining a permit from the department.

f. Pursuant to IC 13-30-2-1(10), a person may not commence or engage in the operation of a hazardous waste facility without having first obtained a permit from the department.

Respondent accepted, disposed, and treated hazardous waste (U240, D016) without having first obtaining a permit from the department.

g. Pursuant to 40 CFR 268.40(a)(3), prohibited waste may be land disposed only if it meets the requirements in the Treatment Standards Table.

Respondent accepted thirty-two (32) 235-gallon totes of 2,4-D hazardous wastewaters (U240, D016) into its on-site solidification pit. The hazardous wastewaters were solidified with fiberglass, which is not a treatment standard for 2, 4-D. Specifically, to comply with Land Disposal Restriction (LDR) regulations, U240 hazardous waste as a wastewater must be under the .72 mg/L limit or treated via wet air oxidation (WETOX), chemical oxidation (CHOXD), carbon adsorption (CARBN), or combustion (CMBST). If the U240 waste is a non-wastewater, it must be under the 10 mg/L limit or treated via CMBST. D016 hazardous waste as a wastewater must be treated via CHOXD, biodegradation (BIODG), or CMBST. D016 as a nonwastewater must be under the 10 mg/L limit and meet the standards found in 40 CFR 268.48.

7. 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. Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM for approval a work plan with timeframes for the removal and proper disposal of the potentially impacted waste from the solidification of hazardous wastewaters with fiberglass.

.

4. Within thirty (30) days of the Effective Date, Respondent shall comply with 329 IAC 10-20-23. Specifically, Respondent shall submit to IDEM an updated waste acceptance procedure. The updated waste acceptance procedure shall include implementing specific steps to ensure upon arrival at the facility waste is properly screened to detect and prevent disposal of regulated hazardous waste as determined by 40 CFR 261.3 or 329 IAC 3.1, polychlorinated biphenyls (“PCB”) waste as defined in 40 CFR 761, and unauthorized solid waste.

5. Within thirty (30) days of the Effective Date, Respondent shall train the personnel who are responsible for accepting solid waste at the facility on their waste acceptance plan. The training shall include ability to identify hazardous waste based on a visual inspection and the required waste profile acceptance documentation.

6. Within fifteen (15) days of completing the training, Respondent shall submit to IDEM training records which includes the name and job title of the employees who completed the training and the training materials.

7. Upon the Effective Date, Respondent shall comply with 40 CFR 268. Specifically, Respondent shall not dispose of any regulated hazardous waste that does not meet Land Disposal Treatment Standards at their facility.

.

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 Twenty-One Thousand and Four Hundred Dollars ($21,400). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.”

10. 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 #3	$100 per/week
Order paragraph #4	$100 per/week
Order paragraph #5	$100 per/week
Order paragraph #6	$100 per/week

11. 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.

12. 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

13. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent[s] 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 12, above.

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

15. 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.

16. 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.

17. 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. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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, Section 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 07/26/2021 By:
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality