Cenco_ 89-90 FILE DOCKET-OCR

• •
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Solid Waste Management
P.O. BOX•27687. Raleigh, North Carolina 27611-7687
James G. Martin, Governor
William W. Cobey, Jr., Secretary
MEMORANDUM
TO: Bill Meyer _J)li
FROM: Jerry Rhode'f
February 21, 1990
RE: Central Transport Consent Order
William L. Meyer
Director
For your review please find attached a copy of the Consent Order that
the Hazardous Waste Section (Section) would like to issue to Central
Transport Inc (CTI).
Presently, CTI is involved in a criminal investigation by the FBI.
As part of the settlement with the FBI, CTI is reqUired to enter into
an agreement with the State to "cleanup" their site in Mecklenburg
County as a RCRA facility and comply with the North Carolina
Hazardous Waste Management Rules. CTI and the Section have been
involved in negotiations for some time and have essentially settled
on the attached Consent Order. The only language in this Consent
Order that is not normally included in Consent Orders is found in
items 5 and 6 of the "Order" section. The additional language is in
bold type and underlined.
Also, included in the Consent Order is a stipulated penalty of
$10,000.00. This is the same amount of penalty accessed other
non-notifiers such as the three Transcontinental Gas Pipe Line
facilities.
bgl20 c drive
~ STATE OF NORTH CAROLINA ~
DEPARTMENT OF HUMAN RESOURCES
DIVISION OF HEALTH SERVICES
SOLID WASTE MANAGEMENT SECTION
HAZARDOUS WASTE BRANCH
In Re: Central Transport, Inc. Administrative Ordet
On Consent NCD046148540
Docket # 89-072
In order to resolve a dispute and to avoid protracted litigation,
Central Transport, Inc. , and the Department of Environment, fa '',
and Natural Resources, Solid Waste Management Division (Divisi<r1,,) of
the State of North Carolina, enter into this Administrative Ord<r on
Consent (Order).
The purpose of this Order is to address conditions in and aroun1J the
site at 600 Melynda Road, in Mecklenburg County, North Caroli,,,,\ 'the
Site), in a manner which is consistent with the State and Fed I.
hazardous waste laws and rules. This dispute is regarding th
application of the Resource Conservation and Recovery Act ( "R' hi 1 ,
42 u.s.c. 6901 et seq., and the Solid Waste Management Act cont,il,i,.ned
in Chapter 130A of the General Statutes ("Act") and the rules
promulgated thereunder and codified in Su'ochapter lOF of Tit 1, : 0 ,,f
the North Carolina Administrative Code, 10 NCAC lOF (the ";i cl'
Therefore, in order to further the public interest, central
Transport, Inc. and the Division do enter into the following ·1.cr:
STIPULATIONS AND FINDINGS OF FACT
1. The Solid Waste Management Di vision (Di vision J , Departmc uf
Environment, Health and Natural Resources (DEHNR) of the ., ' cte
·of North Carolina, acting through the Hazardous Waste Se ,.,.,
(section) is empowered to implement and compel compliance wj_tt\
the standards for generation, transportation, treatment, storage
and disposal of waste pursuant to the Solid Waste Manage, ', t Act
(Act), and the rules promulgated under 40 CFR 260-271, c· 1 , f.i..nd
at 10 NCAC lOF (rules). Mr. William L. Meyer, Divi'sion
Director, has been delegated those responsibilities ..
2. On December 18, 1980, the Division was authorized to operate the
State RCRA Hazardous Waste Program under the Solid Waste
Management Act, N.C.G.S. 130A, Article 9, and rules cod.d icd at
10 NCAC lOF.
3. Central Transport, Inc. (CTI), incorporated in the State uf;
North Carolina, owns and operates a tractor-trailer tank washing
operation in Mecklenburg County, North Carolina. CTI is a
person as defined in 10 NCAC lOF .0002.
4
4.
5.
6.
CTI, by enteri~into this Administrative ~er on consent
(Order), does not admit any violation of the North Carolina
Solid Waste Management Act, the Resource Conservation and
Recovery Act, or any federal or state law.
By entering into this Order, and on the effective date of this
Order, CTI irrevocable declares that as of the date of this
Order, the waste management area at the Site located at 600
Melynda Road; Mecklenburg County, North Carolina includes up to
three hazardous waste management units (surface impoundments).
The waste management area including up to three surface
impoundments is subject to all closure, post-closure, ground
water, and financial assurance requirements applicable to such
units under North Carolina Hazardous Waste Management Rules, and
the Solid Waste Management Act.
40 CFR 265, codified at 10 NCAC lOF .0033, contains standards
and requirements applicable to owners and/or operators of
hazardous waste management facilities which have achieved
interim status, and to those owners and operators of facilities
in existence on November 19, 1980, who have failed to provide
timely notification as required by Section 3010(a) of RCRA and
or failed to file Part A of the permit application.
CIVIL PENALTY ASSESSMENT
The Solid Waste Management Division has determined that an
administrative penalty in the amount of $10,000.00 is appropriate for
the situations addressed in this Order. Central Transport, Inc.
agrees to pay to the Division an administrative penalty i' ,c amount
of $10,000.00 in settlement of this matter. The administrative
penalty in the amount of $10,000.00 will be payable to the Solid
Waste Management Division, North Carolina Department of Environment,
Health, and Natural Resources within thirty (30) days of final and
complete execution of this Order.
ORDER
William L. Meyer has determined that this Order is in the furtherance
of the public interest and with the consent and cooperation of
Central Transport, Inc. hereby orders the following action:
1. CTI shall within thirty (30) calendar days of the date of final
and complete execution of this Order submit the penalty
($10,000.00) by check or money order payable to Solid Waste
Management Division, and mailed to Jerome H. Rhodes, section
Chief, Hazardous waste Section, Solid Waste Management Division,
Department of Environment, Health, and Natural Resources, P. o.
Box 27687, Raleigh, North Carolina, 27611-7687.
5
2. The provisions~ this Order shall hencefo~ govern the actions
of CTI.
3. Comply with 40 CFR 265.ll2(a) codified at 10 NCAC lOF .0033.
Within sixty (60) calendar days of the effective date of this
Order , CTI shall have a written closure plan and shall submit
this plan to the Section for approval. CTI shall keep a copy of
the closure plan and all revisions to the plan at the facility
until closure is completed and certified in accordance with
section 265.115. This plan must identify the steps necessary to
completely close the facility. The closure plan must include,
at least:
A. A description of how each hazardous waste management unit(s)
or waste management area at the facility will be closed in
accordance with section 265.111; and
B. A description of how final closure of the facility will be
conducted in accordance with section 265.111. No areas of
the operation will be unclosed during the active life of the
facility; and
c. An estimate of the maximum inventory of hazardous wastes
ever on-site over the active life of the facility and a
detailed description of the methods to be used during
closure, including, but not limited to methods for removing,
transporting, treating, storing or disposing of all
hazardous waste, identification of and the type(s) of
off-site hazardous waste management unit(s) to be used, if
applicable; and
D. A detailed description of the steps needed to remove or
decontaminate all hazardous waste residues and contaminated
containment system components, equipment, structures, and
soils during closure including, but not limited to,
procedures for cleaning equipment and removing contaminated
soils, methods for sampling and testing surrounding soils,
and criteria for determining the extent of decontamination
necessary to satisfy the closure performance standard; and
E. A detailed description of other activities necessary during
the closure period to ensure that closure satisfies the
closure performance standards, including, but not limited
to, ground water monitoring, leachate collection, and run-on
and run-off control; and
F. A schedule for closure of the site. The schedule must
include, at a minimum, the total time required to close and
the time required for intervening closure activities which
will allow tracking of the progress of closure. (For
example, in the case of a landfill unit, estimates of the
time required to treat or dispose of all hazardous waste
6
9. Comply with 404tR 265,90 -265.94, codifie4tat 10 NCAC lOF
.0033 by implementing a ground water monitoring program capable
of determinig CTI's impact on the quality of the ground water in
the uppermost aquifer underlying the facility within forty-five
(45) days of the effective date of the Order.
Note: CTI has submitted a work plan for a ground water
monitoring program as part of the June 1989 Lagoon Closure Plan.
The comments below pertain to the work plan for the ground water
monitoring program.
A. Upon the completion of Task # 2 and within forty-five (45)
days of the effective date of the Order CTI must be able to
verify, using site specific data, that a minimU!Tl of three
monitoring wells are located downgradient of the waste
management area. Also, CTI must be able to demonstrate that
the wells are screened at the appropriate depth considering
the site hydrgeology. The verification that the monitoring
system is in compliance with the North Carolina Hazardous
Waste Management Rules must be in writing to this office and
include a flow net, description of the site hydrogeology,
and a description of the monitoring system to be used to
monitor the waste management area.
The following comments must be addressed prior to collection of
the ground water samples.
B. The ground water monitoring procedures described in Task # 3
must be amended as follows.
1. The ground water monitoring procedures must specify that
the water levels in all of the monitoring wells will be
measured prior to intiating the ground water
purging/sampling procedures in any of the wells.
2. The following statement in Task # 3 on page 5 must be
deleted:
"Ground water samples will be filtered with a 0.45
micron filter as appropriate."
c. Step 13 under Sampling Procedures [Bailer] in appendix B
Ground Water Sampling Protocol must be amended by deleting
the word "sufficient" in the phrase " ... from the bottom of
the wells until a sufficient volume of ground water ... ".
The word "sufficient" must be replaced by a more specific
description of the amount of water to be removed during well
purging.
D. Step 16 under Sampling Procedures [Bailer] in appendix B
Ground Water Sampling Protocol must be amended to state that
preservatives used in the containers for VOA analyses must
have the preservatives added prior to sample collection.
8
Step 16 mu~also be amended by specif~g that an
unfiltered sample will be collected and analyzed for metals
analyses and preserved with nitric acid to a pH of <2.
E. Appendix B Ground Water Sampling Protocol must be amended to
include a sample chain of custody form.
F. Appendix B Ground Water sampling Protocol must be amended to
includu the analytical procedures used to analyze the ground
water samples.
G. Sampling Procedures [Pump] in appendix B Ground Water
Sampling Protocol must be amended to include a description
of the pump before this office will evaluate this section.
H. Appendix B Ground Water Sampling Protocol must be amended to
include a schedule for the collection, at least quarterly,
and analyses of ground water samples.
10. Comply with 270.lO(a) codified at 10 NCAC lOF .0034. Within
sixty (60) calendar days of the effective date of this Order,
CTI shall complete, sign, and submit a Part A application to the
Section as described in this section and sections 270.70 through
270.73.
Delay in Performance
If any event occurs which causes delay in the achievement of the
requirements of th.i > cJrder, CTI shall have the burden of proving that
the delay was caused by circumstances beyond the reasonable control
of CTI which could not have been overcome by due diligence. CTI
shall promptly notify the Section's Primary contact orally and shall
within seven (7) calendar days of oral notification to the Section
notify the Section in writing of the anticipated length and cause of
the delay, and the timetable by which CTI intends to implement these
measures. If the parties can agree that the delay has been or will
be caused by circumstances beyond the reasonable control of CTI, the
time for performance hereunder shall be extended for a period equal
to the delay resulting from such circumstances. CTI shall adopt all
reasonable measures to avoid or minimize delay. Failure of CTI to
comply with the notice requirements of this paragraph shall render
this paragraph void and constitute a waiver of CTI's rights to
request a waiver of the requirements of this Order. Increased costs
of performance of the terms of this Order or changed economic
circumstances shall not be considered circumstances beyond the
control of CTI. In the event that the Section and CTI cannot agree
that any delay in the achievement of the requirements of this Order,
including the failure to submit any report or document, has been or
will be caused by circumstances beyond the reasonable control of CTI,
the dispute shall be resolved in accordance with the provision of the
"Dispute Resolution" section of this Order.
9
POTENTtt. CONSEQUENCES OF FAILURE ~COMPLY
CTI, is hereby advised that pursuant to N.C.G.S. 130A-22, that each
day it fails to achieve the requirements in the above paragraph, or
otherwise be in violation of any requirement of the Act or the Rule~,
or the terms of this Administrative Order on Consent, constitutes a
separate violation for which an additional penalty of up to
$10,000.00 per day may be imposed. If the violation(s) continues,
CTI, may also be subject to further enforcement including injunction
from any further generation of hazardous waste and such further
relief as may be necessary to achieve compliance with the North
Carolina Solid Waste Management Act and Rules.
The penalties set forth in this section do not preclude the Division
from electing to pursue any other remedies or sanctions, which may be
available to the Division by reason of CTI's failure to comply with
any of the requirements of this order. Payment of any amount
provided for in this paragraph shall not relieve CTI from complying
with any requirement of this Order or any obligation imposed by ls,.>x ~-.A"!;
G . DISPUTE RESOLUTION l ~ ~ 9iJ
11.)C(..11.t>\ll.(...-\\rt.. 1:'..1..0su.L<t. l:><At..>) I
If CTI objects to any Division notice of disapproval or decision made
pursuant to this Order CTI ,;;H,11 notify the Division in writing of
its objections within 'f ourtc':'r' ,, 14) calendar days of receipt of the
decision. The Division and " then have an additional fourteen (14)
calendar days from receipt l·, i. r.ce Division of the notification of
objection to reach agreement If agreement cannot be reached on any
issue within this fourteen ( L · ::~alendar day period, the Division
shall il!Ul\ediately provide a :en statement of its decision to CTI.
OPPORTUNI'.c~ i~O REQUEST A HEARING
CTI has the right to request ""' administrative hearing to contest any
matter of law, material faci ·equirement, or penalty which the
Division and CTI have not b<0LH a.ble to reconcile under the Dispute
Resolution section of this Administrative Order on Consent. To avoid
being in default, and in accordance with 10 NCAC lOG .0704, a written
petition must be submitted w.i 1n 30 days of receipt of the w:ri<·ten
statement of the Division's d•.·• .. :.sion under the Dispute Resollctiun
section.
The petition shall be verified or supported by affidavit and shall
state facts tending to establish that the agency has deprived CTI of
property, has ordered CTI to pay a fine or civil penalty, or has
otherwise substantially prejud:ced CTI's rights and that the
Division:
1. exceeded its authority or jurisdiction;
2. acted erroneously;
3. failed to use proper procedure;
4. acted arbitrarily or capriciously; or
10
5. failed to act ~required by law or rule. ~
The petition must be filed with the Office of Administrative
Hearings, P. o. Drawer 11666, Raleigh, North Carolina 27604, in
accordance with N.C.G.S. 15DB-23(a). A copy of the petition must be
served to John Hunter, Process Agent, Department of Environment,
Health, and Natural Resources, 512 N. Salisbury Street, Raleigh,
North Carolina 27611. Requested administrative hearings will be
conducted in accordance with applicable rules contained in the North
Carolina Administrative Code, a copy of which will be furnished to
you upon request. If no hearing is requested, payment of the
administrative penalty becomes due within 60 days after receipt of
this notice. If a hearing is requested, payment of the
administrative penalty is due within 60 days after service of a
written copy of the decision. If payment is not received as
required, the Secretary of the Department of Environment, Health, and
Natural Resources shall request the Attorney General to commence an
action to recover the amount of the administrative penalty and may
also request that an injunctive action be commenced to achieve
compliance pursuant to N.C.G.S. Chapter 130A.
11
• • 4. CTI, by entering into this Administrative order on consent
(Order), does not admit any violation of the North Carolina
Solid Waste Management Act, the Resource Conservation and
Recovery Act, or any federal or state law.
5. By entering into this Order, and on the effective date of this
Order, CTI irrevocable declares that as of the date of this
Order, the waste management area at the Site located at 600
Melynda Road, Mecklenburg county, North Carolina includes up to
three hazardous waste management units (surface impoundments).
The waste management area including up to three surface
impoundments is subject to all closure, post-closure_, ground
water, and financial assurance reqUirements applicable to such
units under North Carolina Hazardous Waste Management Rules, and
the Solid Waste Management Act.
6. 40 CFR 265, codified at 10 NCAC lOF .0033, contains standards
and requirements applicable to owners and/or operators of
hazardous waste management facilities which have achieved
interim status, and to those owners and operators of facilities
in existence on November 19, 1980, who have failed to provide
timely notification as reqUired by Section 3010(a) of RCRA and
or failed to file Part A of the permit application.
CIVIL PENALTY ASSESSMENT
The Solid Waste Management Division has determined that an
administrative penalty in the amount of $10,000.00 is appropriate for
the situations addressed in this Order. central Transport, Inc.
agrees to pay to the Division an administrative penalty in the amount
of $10,000.00 in settlement of this matter. The administrative
penalty in the amount of $10,000.00 will be payable to the Solid
Waste Management Division, North Carolina Department of Environment,
Health, and Natural Resources within thirty (30) days of final and
complete execution of this Order.
ORDER
William L. Meyer has determined that this Order is in the furtherance
of the public interest and with the consent and cooperation of
Central Transport, Inc. hereby orders the following action:
1. CTI shall within thirty (30) calendar days of the date of final
and complete execution of this Order submit the penalty
($10,000.00) by check or money order payable to Solid Waste
Management Division, and mailed to Jerome H. Rhodes, Section
Chief, Hazardous waste section, Solid Waste Management Division,
Department of Environment, Health, and Natural Resources, P. 0.
Box 27687, Raleigh, North Carolina, 27611-7687.
4
• • 2. The provisions of this order shall henceforth govern the actions
of CTI.
3. Comply with 40 CFR 265.ll2(a) codified at 10 NCAC lOF .0033.
Within sixty (60) calendar days of the effective date of this
Order , CTI shall have a written closure plan and shall submit
this plan to the Section for approval. CTI shall keep a copy of
the closure plan and all revisions to the plan at the facility
until closure is completed and certified in accordance with
section 265.115. This plan must identify the steps necessary to
completely close the facility. The closure plan must include,
at least:
A. A description of how each hazardous waste management unit(s)
or waste management area at the facility will be closed in
accordance with section 265.111; and
B. A description of how final closure of the facility will be
conducted in accordance with section 265.111. No areas of
the operation will be unclosed during the active life of the
facility; and
c. An estimate of the maximum inventory of hazardous wastes
ever on-site over the active life of the facility and a
detailed description of the methods to be used during
closure, including, but not limited to methods for removing,
transporting, treating, storing or disposing of all
hazardous waste, identification of and the type(s) of
off-site hazardous waste management unit(s) to be used, if
applicable; and
D. A detailed description of the steps needed to remove or
decontaminate all hazardous waste residues and contaminated
containment system components, eqUipment, structures, and
soils during closure including, but not limited to,
procedures for cleaning equipment and removing contaminated
soils, methods for sampling and testing surrounding soils,
and criteria for determining the extent of decontamination
necessary to satisfy the closure performance standard; and
E. A detailed description of other activities necessary during
the closure period to ensure that closure satisfies the
closure performance standards, including, but not limited
to, ground water monitoring, leachate collection, and run-on
and run-off control; and
F. A schedule for closure of the site. The schedule must
include, at a minimum, the total time required to close and
the time reqUired for intervening closure activities which
will allow tracking of the progress of closure. (For
example, in the case of a landfill unit, estimates of the
time required to treat or dispose of all hazardous waste
5
. , • • inventory and of the time required to place a final cover
must be included.)
4. Comply with 40 CFR 265.118(a) codified at 10 NCAC lOF .0033.
Within sixty (60) calendar days of the effective date of this
Order, CTI shall have a written post-closure plan which meets
the requirements of paragraph (c) of section 265.118 and shall
submit this plan to the Section for approval.
5. Comply with 40 CFR 265.142(a), codified at 10 NCAC lOF .0033, by
including in the above closure plan submitted to this off ice a
complete itemized closure cost estimate.
Comply with 40 CFR 265.144(a), codified at 10 NCAC lOF .0033, by
including in the above post-closure plan a complete itemized
post-closure cost estimate.
CTI shall, within sixty (60) calendar days of the effective date
of this Order, demonstrate financial assurance for closure
and/or post-closure, in accordance with 40 CFR 265.143, codified
at 10 NCAC lOF .0033, and 265.145 codified at 10 NCAC lOF .0033.
Should CTI fail to complete closure within one hundred and
eighty (180) days of approval by the Section of its closure plan
or an extension to the closure period granted in accordance with
40 CFR 265.113(b), codified at 10 NCAC lOF ,0033, CTI shall, at
that time, immediately demonstrate liability coverage in
accordance with 40 CFR 265.147, codified at 10 NCAC lOF
.0033(h).
6. As. required by 40 CFR 265.112(d), codified at 10 NCAC lOF .0033,
upon receipt of the closure plan, this office will publish a
public notice and provide a 30-day comment period for the plan.
Concurrently, this office will review the plan and at the
conclusion of the comment period, will either approve the plan
or request modifications. If necessary, CTI shall make
modifications or submit a new plan within 30 days. If the
Section determines that the response is inadequate, it will
modify the plan and that will be the approved closure plan which
CTI shall implement.
7. Comply with 40 CFR 265.113(b), codified at 10 NCAC lOF .0033.
CTI shall complete closure activities within 180 days of
approval of the closure plan unless an extension is granted
pursuant to this section.
8. Comply with 40 CFR 265.114, codified at 10 NCAC lOF .0033. CTI
shall, prior to completion of closure, dispose of or
decontaminate all equipment and structures properly.
9. Comply with 40 CFR 265,90 -265.94, codified at 10 NCAC lOF
.0033 by implementing a ground water monitoring program capable
of determinig CTI's impact on the quality of the ground water in
6
. , • • the uppermost aquifer underlying the facility within forty-five
(45) days of the effective date of the order.
Note: CTI has submitted a work plan for a ground water
monitoring program as part of the June 1989 Lagoon Closure Plan.
The comments below pertain to the work plan for the ground water
monitoring program.
A. Upon the completion of Task ~ 2 and within forty-five (45)
days of the effective date of the Order CTI must be able to
verify, using site specific data, that a minimum of three
monitoring wells are located downgradient of the waste
management area. Also, CTI must be able to demonstrate that
the wells are screened at the appropriate depth considering
the site hydrgeology. The verification that the monitoring
system is in compliance with the North Carolina Hazardous
Waste Management Rules must be in writing to this office and
include a flow net, description of the site hydrogeology,
and a description of the monitoring system to be used to
monitor the waste management area.
The following comments must be addressed prior to collection of
the ground water samples.
B. The ground water monitoring procedures described in Task * 3
must be amended as follows.
1. The ground water monitoring procedures must specify that
the water levels in all of the monitoring wells will be
measured prior to intiating the ground water purging
procedures in any of the wells.
2. The following statement in Task * 3 on page 5 must be
deleted:
"Ground water samples will be filtered with a 0.45
micron filter as appropriate."
c. Step 13 under Sampling Procedures [Bailer] in appendix B
Ground Water Sampling Protocol must be amended by deleting
the word "sufficient" in the phrase " ... from the bottom of
the wells until a sufficient volume of ground water ... ".
The word "sufficient" must be replaced by a more specific
description of the amount of water to be removed during well
purging.
D. Step 16 under Sampling Procedures [Bailer] in appendix B
Ground Water Sampling Protocol must be amended to state that
preservatives used in the containers for VOA analyses must
have the preservatives added prior to·sample collection.
Step 16 must also be amended by specifying that an
unfiltered sample will be collected and analyzed for metals
analyses and preserved with nitric acid to a pH of <2.
7
• • E. Appendix B Ground Water Sampling Protocol must be amended to
include a sample chain of custody form.
F. Appendix B Ground Water Sampling Protocol must be amended to
include the analytical procedures used to analyze the ground
water samples.
G. sampling Procedures [Pump) in appendix B Ground Water
Sampling Protocol must be amended to include a description
of the pump before this office will evaluate this section.
H. Appendix B Ground Water Sampling Protocol must be amended to
include a schedule for the collection, at least quarterly,
and analyses of ground water samples.
10. Comply with 270.lO(a) codified at 10 NCAC lOF .0034. Within
sixty (60) calendar days of the effective date of this Order,
CTI shall complete, sign, and submit a Part A application to the
Section as described in this section and sections 270.70 through
270.73.
Delay in Performance
If any event occurs which causes delay in the achievement of the
requirements of this .Order, CTI shall have the burden of proving that
the delay was caused by circumstances beyond the reasonable control
of CTI which could not have been overcome by due diligence. CTI
shall promptly notify the Section's Primary Contact orally and shall
within seven (7) calendar days of oral notification to the Section
notify the Section in writing of the anticipated length and cause of
the delay, and the timetable by which CTI intends to implement these
measures. If the parties can agree that the delay has been or will
be caused by circumstances beyond the reasonable control of CTI, the
time for performance hereunder shall be extended for a period eqUal
to the delay resulting from such circumstances. CTI shall adopt all
reasonable measures to avoid or minimize delay. Failure of CTI to
comply with the notice requirements of this paragraph shall render
this paragraph void and constitute a waiver of CTI's rights to
request a waiver of the requirements of this Order. Increased costs
of performance of the terms of this Order or changed economic
circumstances shall not be considered circumstances beyond the
control of CTI. In the event that the Section and CTI cannot agree
that any delay in the achievement of the reqUirements of this Order,
including the failure to submit any report or document, has been or
will be caused by circumstances beyond the reasonable control of CTI,
the dispute shall be resolved in accordance with the provision of the
"Dispute Resolution" section of this Order.
8
. ' • • DISPUTE RESOLUTION
If CTI objects to any Division notice of disapproval or decision made
pursuant to this Order, CTI shall notify the Division in writing of
its objections within fourteen (14) calendar days of receipt of the
decision. The Division and CTI then have an additional fourteen (14)
calendar days from receipt by the Division of the notification of
objection to reach agreement. If agreement cannot be reached on any
issue within this fourteen (14) calendar day period, the Division
shall immediately provide a written statement of its decision to CTI.
If CTI cannot abide by the Section's decision this Consent Order
shall be terminated. The Section reserves its rights thereafter to
pursue all enforcement actions against CTI and CTI reserves its
rights to respond to such actions.
9
'-
,_,.
• •
--or should have known--of the dangerous properties of these
compounds because they kept a file of material safety data sheets
which listed their dangerous properties and which explained how to
safely control them. These documents were maintained at the
Charlotte terminal as well as at the High Point headqUarters. Also
Central Transport employees knew of the hazardous nature of the
chemicals they hauled. .•
u .s. Attorney Tom Ashcraft said, "This is a case of pollution
for profit. Compliance with the Clean Water Act would have
required central Transport to take extra steps in treating waste
products. cutting out those steps saved the company money and gave
it an unfair advantage over its competitors in the marketplace."
The case was investigated by FBI Agent Tom Burleson with help
from the N. c. Department of Environment, Health, and Natural
Resources. Valuable scientific assistance was provided by EPA.
Prosecution of the case was conducted jointly by the U.S.
Attorney's Office and Floyd Clardy III of the Environmental Crimes
Section, Land and Natural Resources Division, u.s. Department of
Justice.
3
• • central Transport, whose headquarters are in High Point, North
Carolina, is a large commercial hauler of chemicals by tanker
trailer trucks. The company has terminals in Charlotte, High
Point, and Wilmington, and other terminals in several eastern
states.
The bill of information charges that on three occasions in
late April and early May 1987 Central Transport knowingly
discharged pollutants into the Charlotte-Mecklenburg sewer system
and that the company knew or should have known that these
pollutants could cause personal injury or property damage. These
acts arose from the company's tank cleaning operation on Melynda
Road in Charlotte.
After hauling chemicals, Central Transport trucks would go to
the Melynda Road facility to clean their tanks of residual waste
products. However, instead ot properly treating these waste
products, which contained high concentrations of pollutants, before
disposing of them, the company on occasion would pump them directly
into the sewer system or into lagoons on the premises. Not using
the required treatment procedures saved the company a considerable
but indeterminate amount of money.
The pollutants included toluene and chlorotoluene, zylene
trichloroethylene, styrene, and tetrachloroethylene among others.
According to EPA chemists, because these are volatile organic
compounds, their introduction into the confines of the sewer could
have created an explosive atmosphere which, if ignited, could have
caused serious injury or property damage. Central Transport knew
2
• • -2 -
Charlotte, North Carolina. This provision applies to criminal
environmental violations which either the government knew about
on the date the parties signed this agreement, which are within
the scope of the government's Jnvestigation from 1985 to January
31, 1990, or which CENTRAL TRANSPORT, INC. disclosed to the
United states before January 31, 1990. This provision wi~l be'
construed to include, but not necessarily be limited to, the
three lagoons maintained at the terminal for the disposal,
treatment, and storage of waste, the waste treatment system
located at the terminal, and the introduction into the Charlotte
sewer system of waste products. This Plea Agreement applies only
to criminal violations that occurred in the Western District of
North Carolina.
(3) If acceptable to the Court, CENTRAL TRANSPORT, INC.
· · hereby waives the presentence investigation and report following
Rule 32(c)(l) of the Federal Rules of Criminal Procedure. The
United states does not oppose such waiver.
(4) The United States and CENTRAL TRANSPORT, INC. agree
that after entry of the guilty pleas of CENTRAL TRANSPORT, INC.,
following Rule ll(e)(l)(C) of the Federal Rules of criminal
Procedure, the appropriate disposition at the time of sentencing
is:
(a) CENTRAL TRANSPORT, INC. will pay a fine of Five-
Hundred Thousand Dollars ($500,000), as provided in Title 18,
United States Code, Section 357l(c)(3), for each count of the
three counts in the information, which fines total $1.5 million
• • -3 -
dollars. Of this total fine, $1 million shall be suspended, and
the Court will place CENTRAL TRANSPORT, INC. on probation for two
years on the condition that during the two-year probationary term
CENTRAL TRANSPORT, INC. proper,ly implement lagoon closure at the
Melyn~a Road facility and present to the Court certification from
the North carolina Department of Environment, Heal~h, and Natural
Resources that lagoon closure has been completed. central
Transport, Inc. will also implement cleanup of environmental
problems related to the lagoons, including ground water
contamination, at its Melynda Road terminal in Charlotte, North
Carolina.
(b) This environmental cleanup will be s~bject to the
oversight and jurisdiction of the North Carolina Department of
Environment, Health, and Natural Resources or its successor. The
United States agrees that CENTRAL TRANSPORT, INC. retains any
right it may have to contest, in good faith, any order,
directive, or condition issued by the North Carolina Department
of Environment, Health, and Natural Resources or its successor.
The United states agrees that during the two-year probationary
term it will not criminally prosecute CENTRAL TRANSPORT, INC. for
maintenance of its lagoons so long as CENTRAL TRANSPORT, INC. is
proceeding in good faith with the environmental cleanup under the
provisions of this agreement.
(c) The United states agrees not to petition to revoke the
probation of CENTRAL TRANSPORT, INC. so long as CENTRAL
TRANSPORT, INC. is proceeding in good faith with the
-·
• • - 4 -
1._, environmental cleanup of CENTRAL TRANSPORT, INC. 's facility. The
parties understand that the environmental cleanup of CENTRAL
TRANSPORT, INC.'s facility may exceed the two year probationary
term. For example, the cleanup of ground water contamination
often takes many years. The parties, therefore, agree that if
lagoon closure takes more than two years, despite·' CENTRAL·
TRANSPORT, INC.'s proceeding in good faith to complete lagoon
closure, and CENTRAL TRANSPORT, INC. is otherwise in compliance
with the terms of this plea agreement, the united states will not
oppose CENTRAL TRANSPORT, lNC.'s motion to extend probation up to
five years from the date of the judgment of conviction. In
addition, the parties agree that if any CENTRl\L TRANSPORT, INC.
challenge to any North Carolina Department of Environment,
Health, and Natural Resources order, directive, or condition is
made in good faith and results in delay in completion of the
terms of probation, and CENTRAL TRANSPORT, INC. is otherwise in
compliance with the terms of this plea agreement, the United
states will not oppose CENTRAL TRANSPORT, INC.'s motion to extend
probation up to five years from the date of conviction.
(d) CENTRAL TRANSPORT, INC. agrees that on the date it
enters its pleas pursuant to this Plea Agreement, it will deliver
to the United states a certified check payable to the United
states Department of Justice, in the amount of Five Hundred
Thousand Dollars ($500,000).
(e) If CENTRAL TRANSPORT, INC. fails to comply with this
Plea Agreement or the terms of probation, the United states may
• • •
-5 -
·~·· initiate proceedings against CENTRAL TRANSPORT, INC. to revoke
probation, including proceedings to collect the suspended portion
of the fine. CENTRAL TRANSPORT, INC.'s contesting an order,
directive, or condition of the North Carolina Department of .
Environment, Health, and Natural Resources under the preceding
subparagraph (c) shall not be deemed a violation ~f the Plea
Agreement or probation so long as it is otherwise in compliance
with the Plea Agreement and probation.
(f) CENTRAL TRANSPORT, INC. agrees that if the Court should
determine that it has failed reasonably to fulfill its
obligations under this Plea Agreement, the government shall be
free to prosecute CENTRAL TRANSPORT, INC. for ~he environmental
offenses that occurred at CENTRAL TRANSPORT, INC.'s Charlotte
terminal between 1985 and the date the parties sign this
agreement, that would be otherwise barred from being prosecuted
because of the expiration of the applicable statute of
limitations. Such prosecution must, however, be commenced within
90 days after the Court has determined that CENTRAL TRANSPORT,
INC. has breached the Plea Agreement. All guilty verdicts and
sentences shall stand. It is agreed that the entry of judgment
in this case does not bind the state of North Carolina in any
future civil or criminal prosecution of CENTRAL TRANSPORT, INC.
(g) It is agreed that the provisions of this Plea Agreement
do not preclude the United states from prosecuting CENTRAL
TRANSPORT, INC. or any of its divisions or subsidiaries for
Obstruction of Justice, 18 u.s.c. Section 1501 et. seq; or
• • • 6 -
',._, Misprision of a Felony, 18 u.s.c. Section 4; or for any offenses
defined in Title 26 and such Title 18 offenses as may be
investigated by agents of the Internal Revenue service concerning
the enforcement of federal revenue laws. The United states .
represents that now the Department of Justice does not know of
any such violations. ,•
(h) The United states District Court for the Western
District of North Carolina is the sole judge of any disagreements
arising concerning this Plea Agreement, and this Court is the
sole judge of whether CENTRAL TRANSPORT, INC. has complied with
the Plea Agreement.
(5) CENTRAL TRANSPORT, INC. will pay fo~ and place a full-
page advertisement in th~ Charlotte observer, in the form
attached as Exhibit B apologizing for polluting the sewer system
and violating the law. The advertisement shall be placed within
three days of entering the guilty pleas and published as soon as
practicable thereafter. The advertisement will run once a week
for two consecutive weeks.
(6) It is agreed that if the Court refuses to accept any
provision of this Plea Agreement neither party is bound by any of
the provisions of the Agreement. In addition, if the court
refuses to accept the Plea Agreement, the United states may seek
to dismiss the Information without prejudice, and no statement in -
this Plea Agreement or its attachments will be admissible against
either party in any proceeding. CENTRAL TRANSPORT, INC. will not
object to such dismissal of the Information. CENTRAL TRANSPORT,
". • • - 7 -
INC. further agrees that if the Court refuses to accept this Plea
Agreement, CENTRAL TRANSPORT, INC. will waive all applicable
civil and criminal statutes of limitations concerning the matters
set out in the Information and the environmental violations that '
occurred at CENTRAL TRANSPORT, INC.'s Melynda Road terminal,
Charlotte, North Carolina, to the extent that thH; Agreement has
delayed any action that otherwise may have been taken.
(7) This document contains the parties' entire agreement.
No other agreement, understanding, promise, or condition between
the United states Attorney's Office for the western District of
North Carolina, the Department of Justice and CENTRAL TRANSPORT,
INC. exists, nor will such agreement, underst~nding, promise or
condition exist unless it is committed to writing in an amendment
attached to this document and signed by CENTRAL TRANSPORT, INC.,
an attorney for CENTRAL TRANSPORT, INC., and a representative of
the United States Attorney for the Western District of North
Carolina.
(6) The United states and CENTRAL TRANSPORT, INC. agree'
that the Government's written offer of p~oof, appended hereto as
Exhibit c, is substantially correct.
(9) The united states acknowledges that CENTRAL TRANSPORT,
INC. has cooperated fully in the conduct of the Government's
investigation of the activities concerning this Plea Agreement.
(10) In establishing the factual basis for these pleas of
guilty, the United states and the Defendant do stipulate and
shall stipulate if allowed to do so by the Court to the existence
• •
sewers, pipes and other conveyances which convey waste water into
the publicly owned treatment plant •. 40 C.F.R. § 40J.5.
6. Defendant CENTRAL TRANSPORT, INC.'s Charlotte Plant is
connected to and discharges. into a public sewer system which
conveys waste water to the Ch4rlotte-Mecklenburg Utility
Department ("CMUD"), a publicly owned treatment works.
·'
COUNT I
1. The allegations contained in the Introduction of this
Information are realleged and incorporated in this Count by
reference.
2. From on or about April 28, 1987, to April 29, 1987,
within the Western District of North Carolinac defendant CENTRAL
TRANSPORT, INC. knowingly introduced into the public sewer system
and into the CMUO publicly owned treatment works pollutants,
which Defendant CENTRAL TRANSPORT, INC. knew or reasonably should
have known could cause personal injury or property damage.
In violation of Title 33, United states Code, Section
1319 (c) (2) (B).
COUNT II
1. The allegations contained in the Introduction of this
Information are realleged and incorporated in this count by
reference.
2. From on or about April JO, 1987, t~ May 1, 1987,
within the Western District of North Carolina, defendant CENTRAL
TRANSPORT, INC, knowingly introduced into the public sewer system
and into the CMUD publicly owned ,treatment works pollutants which
-·
• •
Defendant CENTRAL TRANSPORT, INC. knew or reasonably should have
known could cause personal injury oF property damage.
In violation of Title 33, United States Code, Section
1319(c) (2) (B).
cqUNT III
1. The allegations contained in the Introduction of this
Information are realleged and incorporated in this" Count by
reference.
2. From on or about May 4, 1987, to May 5, 1987, within
the Western District of North Carolina, defendant CENTRAL
TRANSPORT, INC. knowingly introduced into the public sewer system
and into the CMUO publicly owned treatment works pollutants which
Defendant CENTRAL TRANSPORT, INC. knew or rea~onably should have
known could cause personal injury or property damage.
In violation of Title 33, United States Code, Section
1319(c) (2) (B).
by:
THOMAS J. ASHCRAFT
united states Attorney
Western District of North Carolina
FLOYD CLARDY III
Trial Attorney, Environmental crimes section
U.S. Department of Justice -·
' . • • A Publicly Owned Treatment Works (POTW) includes sewers,
pipes and other conveyances which carry waste water to a PO'l'W.
33 u.s.c. 1292(2){A)(B). The Charlotte Mecklenburg Utility
Department (CMUD) is a POTW. CTI's Charlotte facility has a
sewer connection to the Charlotte Mecklenburg {CMUD} sewer.
CTI's Charlotte facility also'had a four inch sewer c~an out
line which was connected to the CMUD sewer system~ This Jine
was located in the ground just outside the boiler room at CTI's
Charlotte facility. On May 13, 1987, during a search at CTI's
Charlotte facility, FBI Agent Burleson saw a Regional
Supervisor of the North Carolina Department of Natural
Resources and Community Development, Ron McMillian, put dye in
the four inch line. FBI Agent Burleson watched Ron McMillian
pour dye into this line and then saw it as it came out the
other end of the line. This procedure proved that the four
. inch line was connected to the CMUD sewer system. The four
inch line is a point source.
2. CTI is a North Carolina corporation with its corporate
headquarters located in High Point, North Carolina. CTI is a
family owned corporation and is engaged in the bulk
transportation of various chemical products. For many years
CTI has operated a terminal and tank cleaning facility at
Charlotte.
On the three dates in the Information, the FBI found
chemical wastes in the CMUD public sewer. On each of those
dates Ron McMillian and FBI Agent Tom Burleson placed an
automatic sampling device on a· sewer line located upstream from
-2-
• • • CTI. These persons also placed an identical device on the same
sewer line at a location downstream from CTI. They placed the
· . .,,_ sampling device in the sewer at about 4:00 p.m. and left the
sampling device in the sewer overnight. on every following
morning at about 7:00 a.m. they removed the samples.
l
The North Carolina Department of Natural Resources (NCDNR}
analyzed these samples and found high concentrations of organic
,•
compounds in the sample. These same orqanic compounds also
were present in some of the chemicals hauled by CTI, the
residues of which were contained in waste water discharged by
CTI.
3. Documents gathered· by using grand jury subpoenas show
that CTI knew or should have known that the introduction of
these pollutants containing these organic compounds into CMUD's
sewer system could have caused personal injury or property
damage. As a chemical hauler, the U.S. Department of
Transportation re~uires CTI to label their trailers with
placards that show the contents of the tanker, These placards
help police and fire officials respond to accidents. They list
the action emergency personnel need to take regarding f ightinq
fires or evacuating citizens because of toxic fumes. They show
that the chemicals CTI hauled can be dangerous.
CTI also had extensive safety procedures in place for its
own personnel regarding the wearing of protective clothinq, eye
.
protection, tanker entry procedures, and actions to take if an
-3-
-·
• • If there are any questions please contact Bob Glaser or myself at
[phone]. Otherwise, the Consent orders should be executed by
the appropriate corporate officers and returned to the Section within
fourteen (14) days.
Respectfully,
~ /'/-. ;u__~
Jerome H. Rhodes, Section Chief
Hazardous Waste Section
Solid Waste Management Division
cc: Doug Holyfield
Bill Lopp
Bob Glaser
Bill Meyer
c:bg137
2
• • STATE OF NORTH CAROLINA
DEPARTMENT OF HUMAN RESOURCES
DIVISION OF HEALTH SERVICES
SOLID WASTE MANAGEMENT SECTION
HAZARDOUS WASTE BRANCH
In Re: Central Transport, Inc. Administrative Order
On Consent NCD046148540
Docket It 89-072
In order to resolve a dispute and to avoid protracted litigation,
Central Transport, Inc., and the Department of Environment, Health
and Natural Resources, Solid Waste Management Division (Division) of
the State of North Carolina, enter into this Administrative Order on
Consent (Order).
The purpose of this Order is to address conditions in and around the
site at 600 Melynda Road, in Mecklenburg county, North Carolina (the
Site), in a manner which is consistent with the State and Federal
hazardous waste laws and rules. This dispute is regarding the
application of the Resource Conservation and Recovery Act ("RCRA"),
42 u.s.c. 6901 et seg., and the Solid Waste Management Act contained
in Chapter 130A of the General Statutes ("Act") and the rules
promulgated thereunder and codified in Subchapter lOF of Title 10 of
the North Carolina Administrative Code, 10 NCAC lOF (the "rules").
Therefore, in order to further the public interest, Central
Transport, Inc. and the Division do enter into the following Order:
STIPULATIONS AND FINDINGS OF FACT
1. The Solid Waste Management Division (Division), Department of
Environment, Health and Natural Resources (DEHNR) of the State
of North Carolina, acting through the Hazardous Waste Section
(Section) is empowered to implement and compel compliance with
the standards for generation, transportation, treatment, storage
and disposal of waste pursuant to the Solid waste Management Act
(Act), and the rules promulgated under 40 CFR 260-271, codified
at 10 NCAC lOF (rules). Mr. William L. Meyer, Division
Director, has been delegated those responsibilities.
2. on December 18, 1980, the Division was authorized to operate the
State RCRA Hazardous Waste Program under the Solid Waste
Management Act, N.C.G.S. 130A, Article 9, and rules codified at
10 NCAC lOF.
3. Central Transport, Inc. (CTI), incorporated in the State of
North Carolina, owns and operates a tractor-trailer tank washing
operation in Mecklenburg county, North Carolina. CTI is a
person as defined in 10 NCAC lOF .0002.
3
• • 4. CTI, by entering into this Administrative Order on Consent
(Order), does not admit any violation of the North Carolina
Solid Waste Management Act, the Resource Conservation and
Recovery Act, or any federal or state law.
5. By entering into this Order, and on the effective date of this
Order, CTI irrevocable declares that as of the date of this
Order, the waste management area at the Site located at 600
Melynda Road, Mecklenburg County, North Carolina includes up to
three hazardous waste management units (surface impoundments).
The waste management area including up to three surface
impoundments is subject to all closure, post-closure, ground
water, and financial assurance requirements applicable to such
units under North Carolina Hazardous Waste Management Rules, and
the Solid Waste Management Act.
6. 40 CFR 265, codified at 10 NCAC lOF .0033, contains standards
and requirements applicable to owners and/or operators of
hazardous waste management facilities which have achieved
interim status, and to those owners and operators of facilities
in existence on November 19, 1980, who have failed to provide
timely notification as required by Section 3010(a) of RCRA and
or failed to file Part A of the permit application.
CIVIL PENALTY ASSESSMENT
The Solid Waste Management Division has determined that an
administrative penalty in the amount of $10,000.00 is appropriate for
the situations addressed in this Order. Central Transport, Inc.
agrees to pay to the Division an administrative penalty in the amount
of $10,000.00 in settlement of this matter. The administrative
penalty in the amount of $10,000.00 will be payable to the Solid
Waste Management Division, North Carolina Department of Environment,
Health, and Natural Resources within thirty (30) days of final and
complete execution of this Order.
ORDER
William L. Meyer has determined that this Order is in the furtherance
of the public interest and with the consent and cooperation of
Central Transport, Inc. hereby orders the following action:
1. CTI shall within thirty (30) calendar days of the date of final
and complete execution of this Order submit the penalty
($10,000.00) by check or money order payable to Solid Waste
Management Division, and mailed to Jerome H. Rhodes, section
Chief, Hazardous Waste Section, Solid Waste Management Division,
Department of Environment, Health, and Natural Resources, P. o.
Box 27687, Raleigh, North Carolina, 27611-7687.
4
• • 2. The provisions of this Order shall henceforth govern the actions
of CTI.
3. Comply with 40 CFR 265.112(a) codified at 10 NCAC lOF .0033.
Within sixty (60) calendar days of the effective date of this
Order , CTI shall have a written closure plan and shall submit
this plan to the section for approval. CTI shall keep a copy of
the closure plan and all revisions to the plan at the facility
until closure is completed and certified in accordance with
section 265.115. This plan must identify the steps necessary to
completely close the facility. The closure plan must include,
at least:
A. A description of how each hazardous waste management unit(s)
or waste management area at the facility will be closed in
accordance with section 265.111; and
B. A description of how final closure of the facility will be
conducted in accordance with section 265.111. No areas of
the operation will be unclosed during the active life of the
facility; and
c. An estimate of the maximum inventory of hazardous wastes
ever on-site over the active life of the facility and a
detailed description of the methods to be used during
closure, including, but not limited to methods for removing,
transporting, treating, storing or disposing of all
hazardous waste, identification of and the type(s) of
off-site hazardous waste management unit(s) to be used, if
applicable; and
D. A detailed description of the steps needed to remove or
decontaminate all hazardous waste residues and contaminated
containment system components, equipment, structures, and
soils during closure including, but not limited to,
procedures for cleaning equipment and removing contaminated
soils, methods for sampling and testing surrounding soils,
and criteria for determining the extent of decontamination
necessary to satisfy the closure performance standard; and
E. A detailed description of other activities necessary during
the closure period to ensure that closure satisfies the
closure performance standards, including, but not limited
to, ground water monitoring, leachate collection, and run-on
and run-off control; and
F. A schedule for closure of the site. The schedule must
include, at a minimum, the total time required to close and
the time required for intervening closure activities which
will allow tracking of the progress of closure. (For
example, in the case of a landfill unit, estimates of the
time required to treat or dispose of all hazardous waste
5
• • inventory and of the time required to place a final cover
must be included.)
4. Comply with 40 CFR 265.ll8(a) codified at 10 NCAC lOF .0033.
Within sixty (60) calendar days of the effective date of this
Order, CTI shall have a written post-closure plan which meets
the requirements of paragraph (c) of section 265.118 and shall
submit this plan to the Section for approval.
5. Comply with 40 CFR 265.142(a), codified at 10 NCAC lOF .0033, by
including in the above closure plan submitted to this office a
complete itemized closure cost estimate.
Comply with 40 CFR 265.144(a), codified at 10 NCAC lOF .0033, by
including in the above post-closure plan a complete itemized
post-closure cost estimate.
CTI shall, within sixty (60) calendar days of the effective date
of this Order, demonstrate financial assurance for closure
and/or post-closure, in accordance with 40 CFR 265.143, codified
at 10 NCAC lOF .0033, and 265.145 codified at 10 NCAC lOF .0033.
Should CTI fail to complete closure within one hundred and
eighty (180) days of approval by the Section of its closure plan
or an extension to the closure period granted in accordance with
40 CFR 265.ll3(b), codified at 10 NCAC lOF .0033, CTI shall, at
that time, immediately demonstrate liability coverage in
accordance with 40 CFR 265.147, codified at.10 NCAC lOF
. 0033 (h).
6. As required by 40 CFR 265.ll2(d), codified at 10 NCAC lOF .0033,
upon receipt of the closure plan, this office will publish a
public notice and provide a 30-day comment period for the plan.
Concurrently, this office will review the plan and at the
conclusion of the comment period, will either approve the plan
or request modifications. If necessary, CTI shall make
modifications or submit a new plan within 30 days. If the
Section determines that the response is inadequate, it will
modify the plan and that will be the approved closure plan which
CTI shall implement.
7. Comply with 40 CFR 265.113(b), codified at 10 NCAC lOF .0033.
CTI shall complete closure activities within 180 days of
approval of the closure plan unless an extension is granted
pursuant to this section.
8. Comply with 40 CFR 265.114, codified at 10 NCAC lOF .0033. CTI
shall, prior to completion of closure, dispose of or
decontaminate all equipment and structures properly.
9. Comply with 40 CFR 265,90 -265.94, codified at 10 NCAC lOF
.0033 by implementing a ground water monitoring program capable
of determinig CTI's impact on the quality of the ground water in
6
• • the uppermost aquifer underlying the facility within forty-five
(45) days of the effective date of the Order.
Note: CTI has submitted a work plan for a ground water
monitoring program as part of the June 1989 Lagoon Closure Plan.
The comments below pertain to the work plan for the ground water
monitoring program.
A. Upon the completion of Task # 2 and within forty-five (45)
days of the effective date of the Order CTI must be able to
verify, using site specific data, that a minimum of three
monitoring wells are located downgradient of the waste
management area. Also, CTI must be able to demonstrate that
the wells are screened at the appropriate depth considering
the site hydrgeology. The verification that the monitoring
system is in compliance with the North Carolina Hazardous
Waste Management Rules must be in writing to this office and
include a flow net, description of the site hydrogeology,
and a description of the monitoring system to be used to
monitor the waste management area.
The following comments must be addressed prior to collection of
the ground water samples.
B. The ground water monitoring procedures described in Task # 3
must be amended as follows.
1. The ground water monitoring procedures must specify that
the water levels in all of the monitoring wells will be
measured prior to intiating the ground water purging
procedures in any of the wells.
2. The following statement in Task # 3 on page 5 must be
deleted:
"Ground water samples will be filtered with a 0.45
micron filter as appropriate."
C. Step 13 under Sampling Procedures [Bailer) in appendix B
Ground Water Sampling Protocol must be amended by deleting
the word "sufficient" in the phrase " ... from the bottom of
the wells until a sufficient volume of ground water ... ".
The word "sufficient" must be replaced by a more specific
description of the amount of water to be removed during well
purging.
D. Step 16 under Sampling Procedures [Bailer] in appendix B
Ground Water Sampling Protocol must be amended to state that
preservatives used in the containers for VOA analyses must
have the preservatives added prior to·sample collection.
step 16 must also be amended by specifying that an
unfiltered sample will be collected and analyzed for metals
analyses and preserved with nitric acid to a pH of <2.
7
• E. Appendix B Ground Water Sampling Protocol must be amended to
include a sample chain of custody form.
F. Appendix B Ground Water sampling Protocol must be amended to
include the analytical procedures used to analyze the ground
water samples.
G. Sampling Procedures [Pump] in appendix B Ground Water
sampling Protocol must be amended to include a description
of the pump before this office will evaluate this section.
H. Appendix B Ground Water Sampling Protocol must be amended to
include a schedule for the collection, at least quarterly,
and analyses of ground water samples.
10. Comply with 270.lO(a) codified at 10 NCAC lOF .0034. Within
sixty (60) calendar days of the effective date of this Order,
CTI shall complete, sign, and submit a Part A application to the
Section as described in this section and sections 270.70 through
270.73.
Delay in Performance
If any event occurs which causes delay in the achievement of the
requirements of this Order, CTI shall have the burden of proving that
the delay was caused by circumstances beyond the reasonable control
of CTI which could not have been overcome by due diligence. CTI
shall promptly notify the section's Primary contact orally and shall
within seven (7) calendar days of oral notification to the Section
notify the section in writing of the anticipated length and cause of
the delay, and the timetable by which CTI intends to implement these
measures. If the parties can agree that the delay has been or will
be caused by circumstances beyond the reasonable control of CTI, the
time for performance hereunder shall be extended for a period equal
to the delay resulting from such circumstances. CTI shall adopt all
reasonable measures to avoid or minimize delay. Failure of CTI to
comply with the notice requirements of this paragraph shall render
this paragraph void and constitute a waiver of CTI's rights to
request a waiver of the requirements of this Order. Increased costs
of performance of the terms of this Order or changed economic
circumstances shall not be considered circumstances beyond the
control of CTI. In the event that the Section and CTI cannot agree
that any delay in the achievement of the requirements of this Order,
including the failure to submit any report or document, has been or
will be caused by circumstances beyond the reasonable control of CTI,
the dispute shall be resolved in accordance with the provision of the
"Dispute Resolution" section of this Order.
8
• • DISPUTE RESOLUTION
If CTI objects to any Division notice of disapproval or decision made
pursuant to this Order, CTI shall notify the Division in writing of
its objections within fourteen (14) calendar days of receipt of the
decision. The Division and CTI then have an additional fourteen (14)
calendar days from receipt by the Division of the notification of
objection to reach agreement. If agreement cannot be reached on any
issue within this fourteen (14) calendar day period, the Division
shall immediately provide a written statement of its decision to CTI.
If CTI cannot abide by the section's decision this Consent order
shall be terminated. The Section reserves its rights thereafter to
pursue all enforcement actions against CTI and CTI reserves its
rights to respond to such actions.
9
• This Order is hereby entered into on the
____ day of ~-----~-' 1990.
SOLID WASTE MANAGEMENT DIVISION
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL
RESOURCES
By:
By:
revised 2/21/90
3/14/90
4/4/90
5/10/90
(8933A)
William L. Meyer, Division Director
Solid Waste Management Division
CENTRAL TRANSPORT INC.
10
4.
5.
6.
CTI, by ent~ng into this Administrati~Order on Consent
(Order), does not admit any violation of the North Carolina
Solid Waste Management Act, the Resource Conservation and
Recovery Act, or any federal or state law.
By enterlng into this Order, and on the effective date of this
Order, CTI irrevocable declares that as of the date of this
Order, the waste management area at the Site located at 600
Melynda Road, Mecklenburg County, North Carolina includes up to
three hazardous waste management units (surface impoundments).
The waste management area including up to three surface
impoundments is subject to all closure, post-closure, ground
water, and financial assurance requirements applicab'ie to such
units under North Carolina Hazardous Waste Management Rules, and
the Solid Waste Management Act .
. 4·0 CFE-_265 ,_ codified_ a1; 10 NCAC. lOF • 003 3, contains stap.dards
and requirements applicable·to owners and/or operators of .
hazardous waste management facilities which have achieved.
interim status, and to·those owners and operators.of facilities
in existence on November 19, 1980, who have failed to provide
timely notification as required by Section 3010(a) of RCRA and
or failed to file Part A of the permit application.
CIVIL PENALTY ASSESSMENT
The Solid Waste Management Division has determined that an
administrative penalty in the amount of $10,000.00 is appropriate for
the situations addressed in this Order. Central Transport, Inc_. ,
agrees to pay to the Division an administrative penalty in the amount
of $10,000.00 in settlement of .this matter. The administrative
penalty in the·amount"of '$10,000.00·will be·payable ·to the Solid .
Waste Management Division~ North Carolina Department of Environment,
Health, and Natural Resources within thirty (30) days of final and
complete execution of this Order.
ORDEit:::: . ·, -: ','.\'."--
William L. Meyer has determined that this Order is in the furtherance
of the public interest and with the consent and cooperation of '
Central Transport, Inc. hereby orders the following action:
1. CTI shall within thirty (30) calendar days of the date of final
and complete execution of this Order submit the penalty
($10,000.00) by check or money order payable to Solid waste
Management Division, and mailed to Jerome H. Rhodes, Section
Chief, Hazardous Waste Section, Solid Waste Management Division,
Department of Environment, Health, and Natural Resources, P. o.
Box 27687, Raleigh, North Carolina, 27611-7687.
4
2. The provisi~ of this Order shall henc~th govern the actions
of CTI.
3. comply with 40 CFR 265.112(a) codified at 10 NCAC lOF .0033.
Within sixty (60) calendar days of the effective date of this
order , CTl shall have a written closure plan and shall submit
this plan to the Section for approval. CTI shall keep a copy of
the closure plan and all revisions to the plan at the facility
until closure is completed and certified in accordance with
section 265.115. This plan must identify the steps nece_ssary to
completely close the facility. The closure plan must include,
at least:
A. A description of how each hazardous waste management unit(s)
or waste management area at the facility will be closed in
accordance with section 265.111; and
B. A "description of· how final ciosure of. the facility will. be
conducted in accordance with section 265.111. No areas of
the operation will be unclosed during the active life.of the
facility; and
c.
D.
E.
F.
An estimate of the maximum inventory of hazardous wastes
ever on-site over the active life of the facility and a
detailed description of ·the methods to be used during
closure, including, but not limited to methods for removing,
transporting, treating, storing or disposing of all
hazardous waste, identification of and the type(s) of
off-site hazardous waste management unit(s) to be used, if
applicable; and ·
A detailed description of the steps needed to remove or
decontaminate a11·:haza:r'dous waste residues· and'contaminated
containment system components, equipment, structures, and ·
soils during closure including, but not limited to,
procedures for cleaning equipment and removing contaminated
soils, methods for sarµpligg,.a.,nd t~~ting surrounding soils,
and criteria for determini'Iic;f .. £l:ie ·extent .. of. decontaniiriation
necessary to satisfy the closure performance standard; and
A detailed description of other activities necessary during
the closure period to ensure that closure satisfies the
closure performance standards, including, _but not limited
to, ground water monitoring, leachate collection, and run-on
and run-off control; and
A schedule for closure of the site. The schedule must
include, at a minimum, the total time required to close and
the time required for intervening closure activities which
will allow tracking of the progress of closure. (For
example, in the case of a landfill unit, estimates of the
time required to treat or dispose of all hazardous waste
5
invent4t-and of the time required ~place a final cover
must be included.)
4. Comply with 40 CFR 265.118(a) codified at 10 NCAC lOF .0033.
Within sixty (60) calendar days of the effective date of this
Order, CTI shall have a written post-closure plan which meets
the requirements of paragraph (cl of section 265.118 and shall
submit this plan to the Section for approval.
5. Comply with 40 CFR 265.142(a), codified at 10 NCAC lOF .0033, by
including in the above closure plan submitted to this office a
complete itemized closure cost estimate.
comply with 40 CFR 265.144(a), codified at 10 NCAC lOF .0033, by
including in the above post-closure plan a complete itemized
post-closure cost e~timate.
· 'CTI' shall~ .. wi~bin "shfy''·( 60) "Calendar .·days' -of :tb.e··effecti.._;.e-·date
of 'this Order, demonstrate financial assurance for-closure
and/or post-closure, in accordance with 40 CFR 265.143, codified
at 10 NCAC lOF .0033, and 265.145 codified at 10 NCAC lOF .0033.
Should CTI fail to complete closure within one hundred and
eighty (180) days of approval by the Section of .its closure plan
or an extension to the closure period granted in accordance with
40 CFR 265.113(b), codified at 10 NCAC lOF .0033, CTI shall, at
that time, immediately demonstrate liability coverage in
accordance with 40. CFR 265.147, codified at.10 NCAC lOF
.0033(h).
6. As. required by 40 CFR 265.112(d), codified at 10 NCAC lOF .0033,
upon. receipt of the closure plan, this office will publish a '
public notice and provide a 30-day comment period for the plan.
concurrently, .this office will review the plan and at'the· ·
conclusion of the comment period, will either approve the plari
or request modifications. If necessary, CTI shall make
modifications or submit a new plan within 30 days. If the
Section determines that the _response is inadequate, it_will
..fitodify the plan and that will:.:oe·:-i:he -:/:i.i>proved closure plan which
CTI shall implement. ·
7. Comply with 40 CFR 265.ll3(b), codified at 10 NCAC lOF .0033.
CTI shall complete closure activities within.180 days of
approval of the closure plan unless an extension is granted
pursuant to this section.
8. Comply with 40 CFR 265.114, codified at 10 NCAC lOF .0033. CTI
shall, prior to completion of closure, dispose of or
decontaminate all equipment and structures properly.
9. Comply with 40 CFR 265,90 -265.94, codified at 10 NCAC lOF
.0033 by implementing a ground water monitoring program capable
of deterrninig CTI's impact on the quality of the ground water in
6
---"""
10.
E.
F.
Append~B Ground Water Sampling Pr~ocol must be amended to
include a sample chain of custody form.
Appendix B Ground Water Sampling Protocol must be amended to
inc~ude the analytical procedures used to analyze the ground
water samples.
G. Sampling Procedures [Pump) in appendix B Ground Water
Sampling Protocol must be amended to include a description
of the pump before this office will evaluate this section.
H. Appendix B Ground Water Sampling Protocol must be amended to
include a schedule for the collection, at least quarterly,
and analyses of ground water samples.
Comply with 270.lO(a) codified at 10 NCAC lOF .0034. Within
sixty (60) calendar.days of the effective ·dqte of this Order, . cit :s;1ra1.L' conipl:e1:'.e·,· sign; aftd··siibmif'.'.a··p;;ii£: ii.T"application"""to· :the· .. · '· ·•
Section as described in this section and sections 270.70 through
270.73.
Delay in Performance
If any event occurs which causes delay in the achievement of the
requ.irements of this .Order, CTI shall have the burden of proving that
the delay was caused.by circumstances beyond the reasonable control
of CTI which could not have been overcome by due diligence. CTI
shall promptly notify the Section's Primary.contact orally and shall
within seven (7) calendar days of oral notification to the Section
notify the section in writing of the anticipated length and cause of:
the delay, and .the timetable by which CTI intends to implement these measures~ . If the pai::ties can agree that the delay., has· been' or will'' · ··
be.caused by circumstances beyond the reasonable control of'CTI,·the
time for performance hereunder shall be extended for a period equal
to the delay resulting from such circumstances. CTI shall adopt all
reasonable measures to avoid or minimize delay. Failure of CTI to
compJS with the notice requireinerits.'Bf~thii:i'.:pa:ragraph shall render
this paragraph void and constitute a waiver of CTI's rights to
request a waiver of the requirements of this Order. Increased costs
of performance of the terms of this Order or changed economic
circumstances shall not be considered circumstances beyond the
control-of CTI. In the event that the Section and CTI cannot agree
that any delay in the achievement of the requirements of this Order,
including the failure to submit any report or document, has ·been or
will be caused by circumstances beyond the reasonable control of CTI,
the dispute shall be resolved in accordance with the provision of the
"Dispute Resolution" section of this Order.
8
• • Arent, Fox, Kintner, Plotkin & Kahn
Mr. Jerry Rhodes
December 1, 1988
Page 2
Accordingly, we suggest that the words "by the Department•· be
inserted in line 5 of the Penalty paragraph after "used."
3. In the Order, paragraph 3, the calendar days
should be changed to "sixty (60)."
4. In the Order, paragraph 3 B. should be revised
as follows:
A description of how final closure of the
facility will be conducted in accordance with
Section 265.111. No areas of the operation
will be unclosed during the active life of
the facility.
5. In the Order, paragraph 4, the calendar days
should be changed to "sixty (60)."
follows:
6. In the Order, paragraph 9 should be revised as
Comply with 40 CFR 265.90 -265.94, codified
at 10 NCAC lOF.0033. Within sixty (60)
calendar days of the effective date of this
Order, CTI shall submit a plan to
characterize subsurface conditions and to
determine the groundwater flow direction on
site. The plan must describe the
installation of one boring to auger refusal
and a minimum of three borings completed in
the surficial aquifer at the site. Each
boring must be completed according to ASTM D-
1586, and the soil classified according to
ASTM D-2487. Temporary or permanent
monitoring wells must be installed in the
three borings completed in the surficial
aquifer at the site. The elevation of the
top of the casing at each well site must be
determined and, based upon stabilized
groundwater level readings, the groundwater
flow direction must be determined. The
following items must be included in the plan:
• • Arent, Fox, Kintner, Plotkin & Kahn
Mr. Jerry Rhodes
December 1, 1988
Page 3
7. In the Order, paragraph 10, the calendar days
should be changed to "sixty (60)."
8. In the Delay in Performance paragraph, we
suggest the following language be inserted at the beginning:
Implementation of the Closure Plan is
contingent upon approval to discharge waters
from the three surf ace impoundments which are
the subject of this Consent Order to the
Charlotte-Mecklenburg Utility District
(CMUD). Failure to obtain this approval
shall be deemed circumstances beyond the
reasonable control of CTI and the time for
performance hereunder shall be extended for a
period equal to the delay resulting from such
circumstances. CTI shall adopt all
reasonable measures to avoid or minimize this
delay.
9. In the Delay in
insert "other" after "any. "
"such as the failure of CMUD
liquids. . . . "
Performance paragraph, line 1,
In line 11, after "CTI," insert
to permit the discharge of
10. We recommend the following new paragraph, which
could be paragraph 13 of the Order:
To effect closure of the surface impoundments
at Charlotte, the closure plan submitted by
CTI will detail a proposal to discharge
certain liquids to the Charlotte-Mecklenburg
Utility District POTW. Any sludges remaining
from the surface impoundments will be treated
and disposed on-site, in compliance with any
requirements for on-site disposal, closure
and post-closure care. EPA and DNR shall be
requested by both parties to expedite any
permitting necessary for such on-site
disposal.
11. We recommend the following new paragraph, which
could be a separate section entitled "Release."
• .. > • • Arent, Fox, Kintner, Plotkin & Kahn
Mr. Jerry Rhodes
December 1, 1988
Page 4
The North Carolina DNR hereby releases and
discharges CTI, all CTI shareholders or
owners, all CTI employees, officers or
directors, their heirs and legal
representatives, from all claims, demands,
actions, judgments, and penalties that the
North Carolina DNR had, has, or may have, as
of the date of this Order, against any of the
above-mentioned persons or entities, created
by, arising out of, or as a result of the
operation, maintenance or waste management
practices of any CTI employees at Charlotte.
* * *
As I noted at the outset, we have attempted to
minimize our comments in order to expedite completion of
these discussions and entry of the Order. Please provide us
with your reaction as soon as that is feasible.
MLF:kmm
cc: Mr. Mack Henderson
Mr. Gary Babb
Sincerely,
II!!:~-~~
I
' • • Arent, Fox, Kintner, Plotkin & Kahn
they are subject to all applicable closure,
post-closure, groundwater, and financial
assurance requirements under North Carolina
Hazardous Waste Management Rules and the
Solid Waste Management Act. CTI by entering
into this Consent Agreement does not admit
that the surface impoundments at the site are
in fact one or more hazardous waste
management units.
3. Insert a new paragraph 7 as follows:
CTI has submitted to the Section and has
implemented a plan to characterize subsurface
conditions and determine the groundwater flow
direction on-site, and a groundwater
monitoring plan.
4. In the civil penalty assessment section, delete
the second paragraph which discusses the Harris Appeal since
it no longer applies.
s. In the Order, the last sentence of paragraph 5
and paragraph 7 should be revised to 365 days (rather than
180 days) in order to reflect reality.
6. In the Order, paragraphs 9, 10, 11 and 12 should
be deleted since these requirements have already been
performed by CTI and discussed at our January 3 meeting in
Raleigh, and should be unnecessary.
7. In the section entitled Potential Consequences of
Failure to Comply, the following new language should be
inserted as a separate paragraph at the end of the section:
If, however, CTI complies with the
requirements of this Consent Agreement, the
North Carolina Department of Environment,
Health and Natural Resources releases and
discharges CTI, all CTI shareholders and
owners, all CTI employees, officers and
directors, their heirs and legal
representatives, from all claims, demands,
actions, judgments, and penalties, that the
North Carolina Department of Environment,
• • Arent, Fox, Kintner, Plotkin & Kahn
Mr. Jerome H. Rhodes
January 15, 1990
Page 3
Health and Natural Resources had, has, or may
have, as of the date of this Consent
Agreement against any of the above-mentioned
persons or entities, created by, or arising
out of, or as a result of the operation,
maintenance or waste management practices of
the lagoons by CTI or any CTI employees at
Charlotte.
As we discussed at our meeting, CTI would like to
expedite completion of our discussions and to enter the
Consent Agreement as soon as possible. Please provide us
with your reaction as soon as that is feasible.
Sincerely,
' ;· / I '
, ;' ; .. ·. . . ,/I .t , ''l"'' I [r,1,.~1d/L-Marc L. Fleischaker
cc; William F~ Lopp, Esq.
Robert L. Glaser
• •
STATE OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT, HEALTH,
AND NATURAL RESOURCES
SOLID WASTE MANAGEMENT DIVISION
HAZARDOUS WASTE SECTION
ln Re: Central Transport, Inc.
NCD046148540
Consent Agreement
Docket # 89-072
In order to resolve a dispute and to avoid protracted
litigation, Central Transport, Inc. ("CTI"), and the
Department of Environment, Health and Natural Resources of
the State of North Carolina, acting through its Hazardous
Waste Section (the "Section"), enter into this Consent
Agreement.
The purpose of this Consent Agreement is to address
conditions in and around the site at 500 Melynda Road, in
Mecklenburg County, North Carolina (the "Site"), in a manner
which is consistent with the State and Federal hazardous
waste laws and rules. This dispute is regarding the
application of the Resource Conservation and Recovery Act
("RCRA"), 42 u.s.c. 6901 et seg., and the Solid Waste
Management Act contained in Chapter 130A of the General
Statutes ("Act") and the rules promulgated thereunder and
codified in subchapter lOF of Title 10 of the North Carolina
Administrative Code, 10 NCAC lOF (the "rules").
Therefore, in order to further the public interest, CTI and
the Section do enter into the following Consent Agreement:
STIPULATIONS AND FINDINGS OF FACT
1. The Hazardous Waste Section ("Section"), Department of
Environment, Health and Natural Resources of the State of
North Carolina ("State") is empowered to implement and
compel compliance with the standards for generation,
transportation, treatment, storage and disposal of waste
pursuant to the Solid waste Management Act ("Act"), and
the rules promulgated under 40 C.F.R. 260-271, codified
at 10 NCAC lOF ("rules"). Mr. Jerome H. Rhodes, Section
Head, has been delegated those responsibilities.
2. On December 18, 1980, the Section was authorized to
operate the State RCRA Hazardous Waste Program under the
Solid Waste Management Act, N.C.G.S. 130A, Article 9, and
rules codified at 10 NCAC lOF.
3. CTI, incorporated in the State of North Carolina, owns
and operates a tractor-trailer tank washing operation in
Mecklenburg County, North Carolina. CTI is a person as
defined in 10 NCAC lOF .0002.
• • •
4. CTI, by entering into this Consent Agreement does not
admit any violation of the North Carolina Solid Waste
Management Act, the Resource Conservation and Recovery
Act, or any other federal or state law.
5. By entering into this Consent Agreement, and on the
effective date of this Consent Agreement, CTI declares
that as of the date of this Consent Agreement, the
surface impoundments at the site ate to be treated as a
single hazardous waste management ~n.'3'.f. As such, for
purposes of this Consent Agreement, they are subject to
all applicable closure, post-closure, ground water, and
financial assurance requirements under North Carolina
Hazardous Waste Management Rules, and the Solid Waste
Management Act. CTI, by entering into this Consent
Agreement, does not admit that the surface impoundments
at the site are one or more hazardous waste management
units.
6. 40 C.F.R. 265, codified at 10 NCAC lOF .0033, contains
standards and requirements applicable to owners and/or
operators of hazardous waste management facilities which
have achieved interim status, and to those owners and
operators and facilities in existence on November 19,
1980, who have failed to provided timely notification as
required by Section 3010(a) of RCRA and or failed to file
Part A of the permit application.
7. CTI has submitted to the Section and implemented a plan
to characterize subsurface conditions and determine the
ground water flow direction on site, and a ground water
monitoring plan.
CIVIL PENALTY ASSESSMENT
The Hazardous waste Section has determined that an
administrative penalty in the amount of $10,000.00 is
appropriate for the situations addressed in this Consent
Agreement. CTI agrees to pay to the Section an
administrative penalty in the amount of $10,000.00 in
settlement of this matter. The administrative penalty in the
amount $10,000.00 will be payable to the North Carolina
Department of Environment, Health and Natural Resources
within thirty (30) days of final and complete execution of
this Consent Agreement.
ORDER
Jerome H. Rhodes has determined that this Consent Agreement
is in the furtherance of the public interest and with the
consent and cooperation of CTI hereby orders the following
action:
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• •
1. CTI shall within thirty (30) calendar days of the date of
final and complete execution of this Consent Agreement
submit the penalty ($10,000,00) by check or money order
payable to the Department of Environment, Health and
Natural Resources and mailed to Jerome H. Rhodes, Section
Head, Hazardous Waste Section, Department of Environment,
Health and Natural Resources, P.O. Box 27687, Raleigh,
North Carolina, 27611-7687.
2. The provisions of this Consent Agreement shall henceforth
govern the actions of CTI.
3. Comply with 40 C.F.R. § 265.112(a) codified at 10 NCAC
lOF .0033. Within sixty (60) calendar days of the
effective date of this Consent Agreement, CTI shall have
a written closure plan and shall submit this plan to the
Section for approval. CTI shall keep a copy of the
closure plan and all revisions to the plan at the
facility until closure is completed and certified in
accordance with Section 265.115. This plan must identify
the steps necessary to completely close the facility.
The closure plan must include, at least:
A. A description of how the hazardous waste
management unit at the facility will be
closed in accordance with Section 265.111;
and
B. A description of how final closure of the
facility will be conducted in accordance
with Section 265.111. No areas of the
operation will be unclosed during the
active life of the facility; and
C. An estimate of the maximum inventory of
hazardous waste at the hazardous waste
management unit over the active life of the
facility and a detailed description of the
methods to be used during closure,
including, but not limited to methods for
removing, transporting, treating, storing
or disposing of all hazardous waste,
{.c;,, identification of the type(s) of off-site
~ hazardous waste management unit(s) to be
used, if applicable; and
0. A detailed description of the steps needed
to remove or decontaminate all hazardous
waste residues and contaminated containment
system components, equipment, structures,
and soils during closure including, but not
- 3 -
• •
limited to, procedures for cleaning
equipment and removing contaminated soils,
methods for sampling and testing
surrounding soils, and criteria for
determining the extent of decontamination
necessary to satisfy the closure
performance standard; and
E. A detailed description of other activities
necessary during the closure period to
ensure that closure satisfies the closure
performance standards, including, but not
limited to, ground water monitoring,
leachate collection, and run-on and run-off
control; and
F. A schedule for closure of the site. The
schedule must include, at a minimum, the
total time required to close and the time
required for intervening closure activities
which will allow tracking of the progress
of closure. (For example, in the case of a
landfill unit, estimates of the time
required to treat or dispose of all
hazardous waste inventory and of the time
required to place a final cover must be
included.)
4. Comply with 40 C.F.R. 265,118(a) codified at 10 NCAC lOF
.0033. Within sixty (60) calendar days of the effective
date of this Consent Agreement, CTI shall have a written
post-closure plan which meets the requirements of
paragraph (c) of Section 265.118 and shall submit this
plan to the Section for approval.
S. Comply with 40 C.F.R. 265.142(a), codified at 10 NCAC lOF
.0033, by including in the above closure plan submitted
to this office a complete itemized closure cost estimate.
Comply with 40 C.F.R. 265.144(a), codified at 10 NCAC lOF
.0033, by including in the above post-closure plan a
complete itemized post-closure cost estimate.
CTI shall, within sixty (60) calendar days of the
effective date of this Consent Agreement, demonstrate
financial assurance for closure and/or post-closure, in
accordance with 40 C.F.R. 265,143, codified at 10 NCAC
lOF .0033, and 265.145 codified at 10 NCAC lOF .0033.
Should CTI fail to complete closure within three hundred
and sixty-five (365) days of approval by the Section of
its closure plan, CTI shall, at that time, immediately
- 4 -
• •
demonstrate liability coverage in accordance with 40
C.F.R. 265.147, codified at 10 NCAC lOF .0033(h).
6. As required by 40 C.F.R. 265.112(d), codified at 10 NCAC
lOF .0033, upon receipt of the closure plan, this office
will publish a public notice and provide a 30-day comment
period for the plan. Concurrently, this office will
review the plan and at the conclusion of the comment
period, will either approve the plan or request
modifications. If necessary, CTI shall make
modifications or submit a new plan within 30 days. If
the Section determines that the response is still
inadequate, CTI will modify the plan.
7. Comply with 40 C.F.R. 265.113(b), codified at 10 NCAC lOF
.0033. CTI shall complete closure activities within 365
days of approval of the closure plan unless an extension
is granted pursuant to this section.
8. Comply with 40 C.F.R. 265.114, codified at 10 NCAC lOF
.0033. CTI shall, prior to completion of closure,
dispose of or decontaminate all equipment and structures
properly.
DELAY IN PERFORMANCE
If any event occurs which causes delay in the achievement of
the requirements of this Consent Agreement, CTI shall have
the burden of proving that the delay was caused by
circumstances beyond the reasonable control of CTI which
could not have been overcome by due diligence. CTI shall
promptly notify the Section's primary contact, [identify
individual by name], orally and shall within seven (7)
calendar days of oral notification to the Section notify the
Section in writing of the anticipated length and cause of the
delay, and the timetable by which CTI intends to implement
these measures. If the parties can agree that the delay has
been or will be caused by circumstances beyond the reasonable
control of CTI, the time for performance hereunder shall be
extended for a period equal to the delay resulting from such
circumstances. CTI shall adopt all reasonable measures to
avoid or minimi~e delay. Failure of CTI to comply with the
notice requirements of this paragraph shall render this
paragraph void and constitute a waiver of the CTI's rights to
request a waiver of the requirements of this Consent
Agreement. In the event that the Section and CTI cannot
agree that any delay in the achievement of the requirements
of this Consent Agreement, including the failure to submit
any report or document, has been or will be caused by
circumstances beyond the reasonable control of CTI, the
dispute shall be resolved in accordance with the provision of
the "Dispute Resolution" Section of this Consent Agreement.
- 5 -
• •
POTENTIAL CONSEQUENCES OF FAILURE TO COMPLY
CTI, is hereby advised that pursuant to N.C.G.S. 130A-22,
that each day it fails to achieve the requirements in the
above paragraph, or otherwise be in violation of any
requirement of the Act or the Rules, or the terms of this
Consent Agreement, constitutes a separate violation for which
an additional penalty of up to $10,000.00 per day be imposed.
If the violation(s) continues, CTI, may also be subject to
further enforcement including injunction from any further
generation of hazardous waste and such further relief as may
be necessary to achieve compliance with the North Carolina
Solid Waste Management Act and Rules.
The penalties set forth in this Section do not preclude the
Section from electing to pursue any other remedies or
sanctions, which may be available to the Section by reason of
CTI's failure to comply with any of the requirements of this
Consent Agreement. Payment of any amount provided for in
this paragraph shall not relieve CTI from complying with any
requirement of this Consent Agreement or any obligation
imposed by law.
If, however, CTI complies with the requirements of this
Consent Agreement, the North Carolina Department of
Environment, Health and Natural Resources releases and
discharges CTI, all CTI shareholders or owners, all CTI
employees, officers and directors, their heirs and legal
representatives, from all claims, demands, actions,
judgments, and penalties that the North Carolina Department
of Environment, Health and Natural Resources had, has or may
have, as of the date of this Consent Agreement, against any
of the above-mentioned persons or entities, created by, or
arising out off, or as a result of the operation, maintenance
or waste management practices of the lagoons by CTI or any of
CTI employees at Charlotte.
DISPUTE RESOLUTION
If CTI objects to any Section notice of disapproval or
decision made pursuant to this Consent Agreement, CTI shall
notify the Section in writing of its objections within
fourteen (14) calendar days of receipt of the decision. The
Section and CTI then have an additional fourteen (14)
calendar days from receipt by the Section of notification of
objection to reach agreement. If agreement cannot be reached
on any issue within this fourteen (14) calendar day period,
the Section shall immediately provide a written statement of
its decision to CTI.
- 6 -
• •
OPPORTUNITY TO REQUEST A HEARING
CTI has the right to request an administrative hearing to
contest any matter of law, material fact, requirement, or
penalty which the Section and CTI have not been able to
reconcile under the Dispute Resolution Section of this
Consent Agreement. To avoid being in default and in
accordance with 10 NCAC lOG .0704, a written petition must be
submitted within 30 days of receipt of the written statement
of the Section's decision under the Dispute Resolution
Section.
The petition shall be verified or supported by affidavit and
shall state facts tending to establish that the agency has
deprived CTI of property, has ordered CTI to pay a fine or
civil penalty, or has otherwise substantially prejudiced
CTI's rights and that the Section.
1. exceed its authority or jurisdiction;
2. acted erroneously;
3. failed to use proper procedure;
4. acted arbitrarily or capriciously; or s. failed to act as required by law of rule.
The petition must be filed with the Office of Administrative
Hearings, P.O. Drawer 11666, Raleigh, North Carolina 27604,
in accordance with N.C.G.s. 150B-23(a). A copy of the
petition must be served to Betty Turner, Process Agent,
Department of Environment, Health and Natural Resources, 325
N. Salisbury Street, Raleigh, North Carolina 27611.
Requested administrative hearings will be conducted in
accordance with applicable rules contained in the North
Carolina Administrative Code, a copy of which will be
furnished to you upon request. If no hearing is requested,
payment of the administrative penalty becomes due within 60
days after receipt of this notice. If a hearing is
requested, payment of the administrative penalty is due
within sixty (60) days after service of a written copy of the
decision. If payment is not received as required, the
Secretary of the Department of Environment, Health and
Natural Resources shall request the Attorney General to
commence an action to recover the amount of the
administrative penalty and may also request that an
injunctive action be commenced to achieve compliance pursuant
to N.C.G.S. Chapter 130A.
-7 -
•
Arent, Fox, Kintner, Plotkin & Kahn
Mr. Jerry Rhodes
April 14, 1989
Page 2
from liability from the State for past activities at that
site. Since the State is not providing any assurances to
CTI, there is no reason for CTI to enter the Consent
Agreement.
In addition, there are technical inconsistencies in
certain provisions in the Consent Agreement. For example,
Section 9 requires a minimum of one boring to auger refusal
and three borings for the surficial aquifer at the site.
Contrary to Section 9, Section lOC requires a minimum of one
upgradient and three downgradient wells at each waste
management unit. According to Section 5 of the Stipulations
and Findings of Fact, the three surface impoundments at the
site are to be considered separate hazardous waste management
units. This was a significant change from our proposal,
apparently motivated by the State's view that it must reserve
the necessary flexibility by treating the impoundments as
separate units. This has very severe cost implications with
no countervailing environmental benefits.
Further, Section 5 of the Order you sent states the
following: "By entering this Administrative Order of Consent
on the effective date of this Order, CTI irrevocable [sic]
declares that as of the date of this Order, the three surface
impoundments of the site to the hazardous waste management
units .... " While CTI was willing to treat the lagoons as
hazardous for purposes of closure, it has never believed (and
it does not now believe) that the surface impoundments are
hazardous waste units. Our position on this has not changed.
The lagoons are not hazardous waste units. Apparently, the
State is unable or unwilling to make the distinction, which
we believe to be very important.
Finally, the State has been inflexible in recognizing
possible hardship imposed on CTI due to the Charlotte-
Mecklenburg Utility Department's ("CMUD's") reluctance to
permit the liquids in the lagoons to be sent through its
system. CMUD's denial of a permit would have serious cost
implications, again with no corresponding environmental
benefits.
In short, despite the fact that these negotiations
were initiated by CTI, which has proceeded in good faith, the
State has rejected a number of critical suggestions made by
CTI. This is particularly surprising and disheartening in
•
Arent, Fox, Kintner, Plotkin & Kahn
Mr. Jerry Rhodes
April 14, 1989
Page 3
•
view of the facts that no environmental agency has alleged
that CTI's activities with respect to the lagoons violate any
law, and that the closure process here was initiated not by
the State but by CTI. We are disappointed that the
negotiation process has not been productive, but find it
impossible to sign the Consent Agreement which the State has
prepared. As noted, however, CTI will be proceeding to close
the lagoons in a manner which fully protects the environment.
If you have any further questions, please do not
hesitate to contact me.
Sincerely,
~ ( rffiw r,/,,J--
Marc L. Fleischaker
cc: Gary L. Honbarrier
John J. Doyle, Jr., Esq.
Glen Simpson
George B. Rest, P.E.
Terry L. Caton
Katherine H. Nam, Esq.
• • Arent, Fox, Kintner, Plotkin & Kahn
Mr. Jerry Rhodes
December 1, 1988
Page 3
7. In the Order, paragraph 10, the calendar days
should be changed to "sixty (60)."
8. In the Delay in Performance paragraph, we
suggest the following language be inserted at the beginning:
Implementation of the Closure Plan is
contingent upon approval to discharge waters
from the three surface impoundments which are
the subject of this Consent Order to the
Charlotte-Mecklenburg Utility District
(CMUD). Failure to obtain this approval
shall be deemed circumstances beyond the
reasonable control of CTI and the time for
performance hereunder shall be extended for a
period equal to the delay resulting from such
circumstances. CTI shall adopt all
reasonable measures to avoid or minimize this
delay.
9. In the Delay in
insert "other" after "any."
"such as the failure of CMUD
liquids .... "
Performance paragraph, line 1,
In line 11, after "CTI," insert
to permit the discharge of
10. We recommend the following new paragraph, which
could be paragraph 13 of the Order:
To effect closure of the surface impoundments
at Charlotte, the closure plan submitted by
CTI will detail a proposal to discharge
certain liquids to the Charlotte-Mecklenburg
Utility District POTW. Any sludges remaining
from the surf ace impoundments will be treated
and disposed on-site, in compliance with any
requirements for on-site disposal, closure
and post-closure care. EPA and DNR shall be
requested by both parties to expedite any
permitting necessary for such on-site
disposal.
11. We recommend the following new paragraph, which
could be a separate section entitled "Release."
• Arent, Fox, Kintner, Plotkin & Kahn
Mr. Jerry Rhodes
December 1, 1988
Page 2
•
Accordingly, we suggest that the words "by the Department" be
inserted in line 5 of the Penalty paragraph after "used."
3. In the Order, paragraph 3, the calendar days
should be changed to "sixty (60)."
4. In the Order, paragraph 3 B. should be revised
as follows:
A description of how final closure of the
facility will be conducted in accordance with
Section 265.111. No areas of the operation
will be unclosed during the active life of
the facility.
5. In the Order, paragraph 4, the calendar days
should be changed to "sixty (60)."
6.
follows:
In the Order, paragraph 9 should be revised as
Comply with 40 CFR 265.90 -265.94, codified
at 10 NCAC lOF.0033. Within sixty (60)
calendar days of the effective date of this
Order, CTI shall submit a plan to
characterize subsurface conditions and to
determine the groundwater flow direction on
site. The plan must describe the
installation of one boring to auger refusal
and a minimum of three borings completed in
the surficial aquifer at the site. Each
boring must be completed according to ASTM D-
1586, and the scil classified according to
ASTM D-2487. Temporary or permanent
monitoring wells must be installed in the
three borings completed in the surficial
aquifer at the site. The elevation of the
top of the casing at each well site must be
determined and, based upon stabilized
groundwater level readings, the groundwater
flow direction must be determined. The
following items must be included in the plan:
• Arent, Fox, Kintner, Plotkin & Kahn
Mr. Jerry Rhodes
December 1, 1988
Page 4
The North Carolina DNR hereby releases and
discharges CTI, all CTI shareholders or
owners, all CTI employees, officers or
directors, their heirs and legal
representatives, from all claims, demands,
actions, judgments, and penalties that the
North Carolina DNR had, has, or may have, as
of the date of this Order, against any of the
above-mentioned persons or entities, created
by, arising out of., or as a result of the
operation, maintenance or waste management
practices of any CTI employees at Charlotte.
* * *
As I noted at the outset, we have attempted to
minimize our comments in order to expedite completion of
these discussions and entry of the Order. Please provide us
with your reaction as soon as that is feasible.
MLF:kmm
cc: Mr. Mack Henderson
Mr. Gary Babb
Sincerely,
J!!c1~.ttk.~