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. 2021-28326-H |
|||
|
|
) |
|
||||
columbia City Redevelopment Commission, |
|
) |
|
||||
|
|
) |
|
||||
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 Columbia City Redevelopment
Commission (“Respondent”), which owns the facility with United States
Environmental Protection Agency (“EPA”) ID No. INR 000 150 680 located at 607
South Chauncey Street, in Columbia City, Whitley 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”) via [Certified
Mail to:
Columbia
City Redevelopment Commission |
Attn:
Carl Siler, President |
112
South Chauncey Street |
Columbia
City, IN 46725 |
5.
Respondent notified EPA of Small Quantity
Generator activities on November 24, 2021.
6.
On
November 12, 2021, SME on behalf of Respondent submitted a request for approval
of 4 55-gallon containers of investigation derived waste (“IDW”) contaminated
soil (soil borings) and 1 55-gallon container of IDW contaminated groundwater
under IDEM’s “Contained-in” Determination Policy. In the “contained-in” determination request,
it was determined the basis for managing the IDW contaminated soil and
contaminated groundwater as F001 listed hazardous waste was because of
historical releases of solvents from on-site degreasing operations.
On
November 29, 2021, IDEM denied the approval based on the information
provided. The IDW contaminated soil and
contaminated groundwater were both characteristic for trichloroethylene
(“TCE”). The IDW’s were all determined
to be identified as F001/D040 hazardous wastes regulated under 329 IAC 3.1. The
containers of hazardous waste (F001/D040) were generated between December 2019
and January 2020.
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.
7.
During
an investigation including a record
review on November 16, 2021, conducted by a representative of IDEM, the
following violations were found:
a. Pursuant to 40 CFR 262.16(b), a
generator who generates greater than 100 kilograms but less than 1000 kilograms
of non-acute hazardous waste in a calendar month and who accumulates hazardous
waste on site for more than 180 days is an operator of a storage facility and
is subject to the requirements of 40 CFR Part 264 and the permit requirements
of 40 CFR Part 270 unless granted an extension to the 180-day period.
As noted during the record review,
Respondent stored hazardous waste on-site for greater than 180 days without
complying with 40 CFR Part 264 and 40 CFR Part 270. Specifically,
5 55-gallon containers of F001/D040 hazardous wastes have been stored on site
for approximately 22 months.
b.
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.
As noted during the record review,
Respondent operated a hazardous waste facility without having first obtained a
permit from the department. Specifically, 5 55-gallon containers of F001/D040
hazardous wastes have been stored on site for approximately 22 months.
c.
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.
As noted during the record review,
Respondent stored hazardous waste identified or listed in 40 CFR Part 261
without a permit. Specifically, 5 55-gallon containers of F001/D040 hazardous
wastes have been stored on site for approximately 22 months.
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 its
hazardous waste activity on the approved forms.
As noted during the record review,
Respondent failed to notify the Commissioner of hazardous waste generator and storage
activities.
Respondent notified the Commissioner of
small quantity generator activities and obtained an EPA ID No. on November 24,
2021.
e.
Pursuant to 40 CFR 262.13, a generator must
determine its generator category. A generator’s category is based on the amount
of hazardous waste generated each month and may change from month to month.
Respondent did
not determine its generator category correctly based on the amount of hazardous
waste generated each month. Specifically, Respondent was a small quantity
hazardous waste generator in 2019 and 2020.
f.
Pursuant
to IC 13-22-4-3.1(b), a hazardous waste small quantity generator (SQG), i.e., a
person that generates, in any one or more calendar months of a calendar year:
a) more than one hundred (100) kilograms
but less than one thousand (1,000) kilograms of hazardous waste;
b) less
than one (1) kilogram of acute hazardous waste; or
c) less than one hundred (100) kilograms
of material from the cleanup spillage of acute hazardous waste; or
accumulates at least one thousand (1,000)
kilograms of hazardous waste or less than one (1) kilogram of acute hazardous
waste shall, before March 1 of each year, submit to the department on forms
provided by the department, a report that summarizes the person's hazardous
waste shipments during the previous calendar year.
Respondent most recently notified IDEM
of SQG activities at the Site on November 24, 2021. IDEM has no indication that Respondent ceased
SQG activities at the Site in 2019 and 2020, and thus believes that Respondent
should have submitted 2019 and 2020 annual manifest reports by March 1, 2019, and
March 1, 2020.
A review of IDEM records pertaining to
the Site revealed that, as of January 6, 2021, Respondent had not submitted
2019 or 2020 annual manifest reports.
8.
Respondent
submitted via email on February 14, 2022, Manifest Tracking Numbers 015802298
FLE and 015802297 FLE and land ban notifications documenting proper disposal of
the hazardous waste (F001) to a permitted Treatment, Storage, and Disposal
Facility (“TSDF”) on February 17, 2022.
9.
As
of March 28, 2022, the 2019 and 2020 Annual Reports have both been submitted.
10.
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 rules listed
in the findings above or any incorporated federal equivalent thereof, as
applicable.
3.
Upon
the Effective Date of the Agreed Order,
Respondent shall comply with 40 CFR 262.13. Specifically, Respondent shall
determine their generator category on a monthly basis.
4.
Upon
the Effective Date of the Agreed Order, Respondent shall comply with 40 CFR
262.16(b), IC 13-30-2-1(10), and 40 CFR 270.1(c). Specifically,
Respondent shall not accumulate hazardous waste on-site for greater than
180 days or greater than 90 days pending Respondent’s monthly hazardous waste
generator activities.
5.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Five
Thousand and Six Hundred Dollars ($5,600). Respondent shall pay by the due date
printed on the Invoice, as attached.
Civil and stipulated penalties are
payable to the “Environmental Management Special Fund” by:
Mail:
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 |
Online:
Accounts Receivable is accepting
payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM.
Under Online Services, click Online Payment options and follow the prompts. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
Phone:
You may also call us at 317-234-3099 and
follow the instructions for Master Card, Visa or Discover payments. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
6.
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 an
additional penalty of 10 percent, payable to the “Environmental Management
Special Fund”, and shall be payable to IDEM in the manner specified in
Paragraph 5, above.
7.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
8.
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.
9.
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.
10.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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
04/20/2022 By: |
||||
|
Peggy
Dorsey, Assistant Commissioner |
||||
|
Office
of Land Quality |
||||