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
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2020-27466-H |
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SAFETY-KLEEN
SYSTEMS, INC., |
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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.
3.
On April
2, 2004, Safety-Kleen Oil Recovery Company, then-owner of the Site, recorded an
Environmental Restrictive Covenant (the “ERC”) as Instrument No. 2004034951
with the Lake County Recorder’s Office, which runs with the land and is binding
on successors, including Respondent. The ERC requires that Respondent, with regard to the Site, “not redistribute surface or
sub-surface soil unless soil is properly sampled and characterized for use or
disposal.”
4.
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.
5. IDEM has jurisdiction over the parties
and the subject matter of this action.
6.
Pursuant to IC 13-30-3-3, on February 2, 2021, IDEM
issued a Notice of Violation (“NOV”) via regular mail to:
David
Vergo |
CT
Corporation |
President |
Registered
Agent for |
Safety-Kleen
Systems. Inc. |
Safety-Kleen
Systems, Inc. |
42
Longwater Drive |
334
North Senate Avenue |
Norwell,
Massachusetts 02061 |
Indianapolis,
Indiana 46204 |
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Michael
Radcliffe |
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Senior
Manager Environmental Compliance |
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Safety-Kleen
Systems, Inc. |
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601
Riley Road |
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East
Chicago, Indiana |
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7. Respondent waives the issuance of a
Notice of Violation for IC 13-14-2-6(5)(c) and the settlement period of sixty
(60) days as provided for by IC 13-30-3-3.
8. During an investigation, including
inspection on August 7, 2020, conducted by a representative of IDEM, the
following violations were found:
a. Pursuant to IC 13-14-2-6(5)(c), the
commissioner may enforce a restrictive covenant (as defined in IC
13-11-2-193.5) in accordance with the terms of the covenant.
Respondent excavated surface and
subsurface soil at the Site, redistributed and stored it on-site, and disposed
of the excavated soil (surface and sub-surface) at four (4) off-site locations
without adequate sampling and characterization for use or disposal.
b. Pursuant to 40 CFR 262.11(a), a person who
generates a solid waste, as defined in 40 CFR 261.2, must make an accurate
determination as to whether that waste is a hazardous waste in
order to ensure wastes are properly managed according to applicable RCRA
regulations. The hazardous waste determination for each solid waste must be
made at the point of waste generation, before any dilution, mixing, or other
alteration of the waste occurs, and at any time in the course of its management
that it has, or may have, changed its properties as a result of exposure to the
environment or other factors that may change the properties of the waste such
that the RCRA classification of the waste may change.
As noted during the inspection,
Respondent failed to make a hazardous waste determination for solid waste at
the point of generation. Specifically,
blue tinted soil and debris, a solid waste, was excavated in July 2020 without
a hazardous waste determination being made until August 10, 2020.
c. Pursuant to IC 13-30-2-1(4), a person
may not deposit or cause or allow the deposit of any contaminants or solid
waste upon the land, except through the use of
sanitary landfills, incineration, composting, garbage grinding, or another
method acceptable to the board.
As noted during the inspection,
Respondent deposited blue tinted soil and debris, a solid waste, upon the land for
up to six (6) months, as some of the soil was not disposed of until December
2020.
9. 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, Respondents acknowledge
notice of this right and waive 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 statute and rules
listed in the findings of fact above.
3.
Within thirty (30) days of the Effective Date,
Respondent shall notify, via certified mail, JK Quarter Circle Ranch, J-Pit,
and Gary Materials Services, all located in Gary, IN, and Laraway
Recycling & Disposal located in Elwood, IL of the possible receipt of
cyanide contaminated soil and debris. The letter shall include but not be
limited to:
a.
A narrative of what happened with a timeline.
b.
A statement that cyanide concentrations in the
disposed soil and debris may have exceeded IDEM’s Remediation Closure Guide
Commercial/ Industrial Screening Levels for soil exposure, (direct contact).
c.
A copy of the August 10, 2020
sample results listing all parameters tested and other applicable sample
results.
4. Within Sixty (60) days of the Effective
Date, Respondent shall submit proof of receipt for each letter required in
Order Paragraph 3.
5.
Within
thirty (30) days of the Effective Date, per ERC Instrument No. 2004 034951, Paragraph
3(d) and Exhibit C, Respondent shall ensure affected soils at the Site have an
adequate cover and that required cover is maintained.
6.
Within
thirty (30) days of the Effective Date, Respondent shall modify the training
required by 40 CFR 262.17(a)(7) to include the requirements of the ERC. Respondent
shall submit a copy of the modified training program to IDEM within 15 (fifteen)
days for approval. Respondent shall ensure Site personnel are trained in the
modified training program within sixty (60) days after IDEM approval and
annually thereafter as required by 40 CFR 262.17(a)(7).
7.
All
submittals required by this Agreed Order, unless IDEM notify 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 |
8. Pursuant to IC 13-30-4-1, Respondent is
assessed and agree to pay a civil penalty of Seven Thousand Dollars ($7,000). 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.”
9.
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 |
Stipulated Penalty |
3 |
Failure
to mail required letters to each addressee. |
$200 per
week |
4 |
Failure
to submit documentation that letters were received by each addressee. |
$100 per
week |
6 |
Failure
to conduct ERC training and/or submit documentation of training. |
$100 per
week |
10.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondent receive 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.
11.
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 |
12.
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.
13.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
14.
This Agreed Order shall jointly and severally
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.
15.
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.
16.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
17.
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.
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 the obligation to
comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
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 violations specified in the NOV.
21.
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 Respondents may incur as a result of such communications with the U.S. 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.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
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By:
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By: _________________________ |
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Jennifer Reno, Section Chief |
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Enforcement Section |
Printed:
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Office of Land Quality |
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Title:
________________________ |
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Date:
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Date:
_______________________ |
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COUNSEL
FOR RESPONDENT: |
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By:
________________________ |
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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 |
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For
the Commissioner: |
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Signed 12/9/2021 |
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Peggy
Dorsey, Assistant Commissioner |
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