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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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v. |
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Case No. 2021-28085-H |
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Superior Tote Solutions, 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.
2.
Respondent is Superior Tote Solutions, Inc. (“Respondent”),
which owns and operates the facility located at 401 N. Main, in Summitville, Madison
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:
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Mr.
Shawn McGuire, President & Registered Agent |
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Superior
Tote Solution, Inc. |
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401
N. Main Street |
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Summitville,
IN 46070 |
5.
Respondent has not notified EPA of any
hazardous waste activities.
6.
Respondent
washes and processes intermediate bulk containers (“IBCs”), drums, and other
containers.
7.
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.
8.
During
an investigation including an
inspection on August 5, 2021, conducted by a representative of IDEM, the
following violations were found:
a.
Pursuant
to 40 CFR 262.11, a person who generates a solid waste must determine if that
waste is a hazardous waste.
As noted
during the inspection, the waste streams can vary based on the variety of
products in totes that are received from multiple companies. Respondent has not
made adequate waste determinations for:
1.
Consolidated wastes from incoming totes still
containing wastes/residues.
2.
Triple rinse water from cleaning incoming totes.
3.
Spent wash water from washing totes containing
wastes or residues upon arrival.
4.
Plastic with residues from unusable totes
disposed at Republic Landfill.
5.
Consolidated waste from incoming totes, and/or
wash water, solidified onsite and disposed at Republic Landfill.
6.
Filter waste from tote washing process.
7.
Various containers located north and south of
the shredder building and north/northwest of wash building near drum crusher.
b.
Pursuant
to Indiana Code (“IC”) 13-30-2-1(4), a person may not deposit or allow the
deposit of any contaminants or solid waste upon the land, except though the use
of sanitary landfill, incineration, composting, garbage grinding, or another
method acceptable to the board.
As noted
during the inspection, releases were noted around some of the totes stored
outside on soil/gravel, and spillage and/or residues were observed coming from
totes or on some totes.
c.
Pursuant
to 329 IAC 10-4-2, no person shall cause or allow the storage, containment,
processing, or disposal of solid waste in a manner which creates a threat to
human health or the environment, including the creating of a fire hazard,
vector attraction, air or water pollution, or other contamination.
As noted during the inspection,
Respondent caused and/or allowed solid waste, including, but not limited to
totes and other containers outside, some with visible releases, to be stored at
the Site in a manner which creates a threat to human health or the environment.
d.
Pursuant
to 329 IAC 10-2-181, “storage” means the retention, containment, or
accumulation of solid waste on a temporary basis in such a manner that it does
not threaten or potentially threaten human health or impact the environment,
for a period of more than twenty-four (24) hours, in such a manner as not to
constitute disposal of the waste. It must be a rebuttable presumption that
storage of waste for more than six (6) months constitutes disposal.
As noted
during the inspection, there is not a system in place to ensure containers
filled with wastes for disposal, or containers to be processed or disposed, are
managed sequentially to ensure oldest wastes are processed or disposed first.
Incoming wastes are being processed first and a backlog of several thousand unprocessed
totes, hundreds storing wastes, have been accumulated.
e.
Pursuant
to 329 11-9-1(a), unless excluded in 329 IAC 11-3, any person who constructs or operates a solid waste
processing facility as defined under 329 IAC 11-2-43 shall have a solid waste
processing facility permit under this article.
As noted
during the inspection, Respondent is operating as a solid waste processor. It
is estimated that ~1,000 totes are received per day as well as other
containers. Operations include shredding of unwashed plastic containers that
previously stored a variety of materials, transfer station activities;
including consolidating wastes contained in incoming containers; and
solidification of spent wash water from washing totes and/or solidification of
consolidated wastes from incoming containers.
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, 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 comply with 40 CFR
262.11. Specifically, Respondent shall conduct
a waste determination for the following generated solid waste:
1. Consolidated
wastes from incoming totes still containing wastes.
2. Triple
rinse water from cleaning incoming totes.
3. Wash
water from washing totes containing wastes or residues upon arrival.
4. Plastic
with residues from unusable totes disposed at Republic Landfill.
5. Consolidated
waste from incoming totes, and/or wash water, solidified onsite and disposed at
Republic Landfill.
6. Filter
waste from tote washing process.
7. Various containers located north and
south of the shredder building.
4.
Within thirty (30) days of Effective Date, Respondent
shall submit to IDEM for approval a sampling plan for the waste determinations
required in Order paragraph 3 above.
5.
Within
fifteen (15) days of receiving notice from IDEM of approval of the sampling plan,
Respondent shall implement it as approved and in accordance with the time
frames contained therein, and notify IDEM ten (10)
days prior to the sampling event(s) so staff, if available, can be present.
6.
Within fifteen (15) days of obtaining the analytical
results as required in Order paragraph 5, Respondent shall submit said results,
including chain-of-custody information, and QA/QC records to IDEM.
7.
In
the event IDEM determines that any plan submitted by Respondent is deficient or
otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM
in accordance with IDEM's notice. After
three (3) submissions of such plan by Respondent, IDEM may modify and approve
any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into
this Agreed Order and shall be deemed an enforceable part thereof.
8.
Upon
the Effective Date, Respondent shall ensure that a proper waste determination
is made for all solid waste at the point of generation. If the waste is hazardous,
it shall be managed according to the applicable regulations.
9.
Within thirty (30) days of the Effective Date,
Respondent shall comply with IC 13-30-2-1(4).
Specifically, Respondent shall clean up the releases noted around some
of the totes stored outside on soil and/or/gravel. Respondent shall remove the contaminated soil
six (6) inches beyond visible contamination.
Prior to removing the contaminated soil, Respondent shall take
photographs of the visible contaminated soil area prior to removing the soil
and after the soil is removed to verify that all visible soil contamination has
been removed.
10.
Within forty-five (45) days of the Effective
Date, Respondent shall submit the photographs and proper disposal documentation
including the volume of soil removed and the disposal facility.
11.
Within forty-five (45) days of the Effective
Date, Respondent shall submit a plan on how future releases will be
addressed. The plan shall include that
releases/spills will be responded to within 24 hours. The plan shall also include preventive
measures that will be taken to prevent future releases/spills from incoming
totes.
12.
Within thirty (30) days of the Effective Date,
Respondent shall comply with 329 IAC 11-9-1.
Specifically, Respondent shall submit to IDEM a complete solid waste
processing permit application in accordance with 329 IAC 11-9-2 requirements.
13.
Respondent shall respond to any Notice of
Deficiency (“NOD”) issued by the Solid Waste Permitting Section within the
stated time frames in the NOD. If such
timeframes are not met, IDEM may assess stipulated penalties as described in
Order Paragraph 16.
14.
Within thirty (30) days of the Effective Date,
Respondent shall submit to IDEM standard operating procedures that will be implemented
to ensure incoming totes and other containers are processed in a timely manner and
to avoid storage of waste.
15.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise
in writing, shall be sent to:
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Christina
Halloran, Enforcement Case Manager |
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Office
of Land Quality |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
16.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Forty
Thousand Dollars ($40,000). 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.”
17.
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:
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Paragraph |
Stipulated
Penalty |
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Order
paragraph #3 |
$100
per week |
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Order
paragraph #4 |
$100
per week |
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Order
paragraph #5 |
$100
per week |
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Order
paragraph #6 |
$100
per week |
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Order
paragraph #7 |
$100
per week |
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Order
paragraph #9 |
$100
per week |
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Order
paragraph #10 |
$100
per week |
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Order
paragraph #11 |
$100
per week |
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Order
paragraph #12 |
$250
per week |
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Order
paragraph #13 |
$200
per week |
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Order
paragraph #14 |
$100
per week |
18.
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.
19.
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:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
20.
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 19, above.
21.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
22.
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.
23.
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.
24.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
25.
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.
26.
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.
27.
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.
28.
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.
29.
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.
30.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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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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Land 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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Date:
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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For
the Commissioner: |
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Signed 04/20/2022 By; |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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