STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. GRANT
COUNTY COMMISSIONERS d/b/a
Respondent. |
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AGREED ORDER
The Complainant and the
Respondent desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order.
I.
FINDINGS OF FACT
1. Complainant
is the Commissioner (“Complainant”) of the Indiana Department of Environmental
Management, a department of the State of
2. Respondent
is Grant County Commissioners d/b/a Grant County Recycling
("Respondent"), which operates the facility located at
3. The
4. Pursuant
to IC 13-30-3-3, on May 16, 2006, IDEM issued a Notice of Violation via
Certified Mail to:
Mr.
Jeremy Diller, President |
Grant
County Commissioners |
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5. Respondent
operates a recycling operation for household hazardous waste and small
businesses.
6. Inspections
on September 15, 2005 and March 7, 2006 were conducted at the Site by
representatives of IDEM’s Office of Land Quality (“OLQ”). The following violations were in existence or
observed at the time of these inspections:
a. Pursuant
to IC 13-30-2-1(1), no person shall discharge, emit, cause, or allow any
contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources, into the environment in
violation of 329 IAC 10-4-2. Respondent
caused and/or allowed paint waste, waste tires, foundry sand, and other wastes
and materials to be released into the environment. On August 10, 2006, Respondent submitted to
IDEM documentation showing that all tires had been removed from the Site by a
certified scrap tire hauler and processor.
b. Pursuant
to IC 13-30-2-1(3), no person shall deposit any contaminant upon the land in a
place or manner that creates or would create a pollution hazard that violates
or would violate 329 IAC 10-4-2 and 329 IAC 10-4-3. Respondent deposited paint waste, waste
tires, foundry sand, and other wastes and materials, upon the land in several
areas at the Site. On August 10, 2006,
Respondent submitted documentation showing that all tires had been removed from
the Site by a certified scrap tire hauler and processor.
c. Pursuant
to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of
contaminants or solid waste upon the land, except through the use of sanitary
landfills, incineration, composting, garbage grinding, or another method
acceptable to the solid waste management board.
Respondent caused and/or allowed paint waste, waste tires, foundry sand,
and other waste and materials, to be deposited in the area behind the recycling
building in a manner unacceptable to the solid waste management board. On August 10, 2006, Respondent submitted
documentation showing that all tires had been removed from the Site by a
certified scrap tire hauler and processor.
d. Pursuant
to IC 13-30-2-1(5), no person shall dump or cause or allow the open dumping of
garbage or any other solid waste in violation of 329 IAC 10-4-2 and 329 IAC
10-4-3. Respondent caused and/or allowed
paint waste, waste tires, foundry sand, and other waste and materials, to be
open dumped at the Site in the area behind the recycling building. On August 10, 2006, Respondent submitted to
IDEM documentation showing that all tires had been removed from the Site by a certified
scrap tire hauler and processor.
e. Pursuant
to 329 IAC 10-4-2, no person shall cause or allow the storage, containment,
processing, or disposal of solid waste in a manner which creates a threat to
human health or the environment, including the creating of a fire hazard,
vector attraction, air or water pollution, or other contamination. Respondent caused and/or allowed the disposal
of paint waste, waste tires, and foundry sand, in a manner which creates a
threat to human health and the environment. On August 10, 2006, Respondent
submitted documentation showing that all tires had been removed from the Site
by a certified scrap tire hauler and processor.
f. Pursuant
to 329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in
IC 13-11-2-146 and IC 13-11-2-147, are prohibited. Respondent accumulated paint wastes in
55-gallon drums, then emptied the waste outside in trenches lined with foundry
sand. Respondent also dumped waste tires
and other solid wastes in several places at the Site. On August 10, 2006,
Respondent submitted documentation showing that all tires had been removed from
the Site by a certified scrap tire hauler and processor.
g. Pursuant
to 329 IAC 15-3-2, the owner or operator of a waste tire storage site shall
possess a valid certificate of registration issued under 329 IAC 15-3; comply
with all applicable requirements of 329 IAC 15-3; and maintain financial
assurance as required by 329 IAC 15-5.
Respondent stored over 4,800 waste tires at the site, but did not have a
valid certificate of registration under 329 IAC 15-3; did not comply with all
applicable requirements of 329 IAC 15-3; and did not maintain financial
assurance as required by 329 IAC 15-5.
7. In
recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
II.
ORDER
1. This
Agreed Order shall be effective ("Effective Date") when it is
approved by the Complainant or his delegate, and has been received by the
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2. Upon
the Effective Date of this Agreed Order, Respondent shall comply with IC
13-30-2-1(1), (3), (4), and (5); and 329 IAC 10-4-2 and 10-4-3. Specifically, Respondent shall immediately
cease depositing waste into the environment.
3. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
comply with IC 13-30-2-1(1), (3), (4), and (5); and 329 IAC 10-4-2 and
10-4-3. Specifically, Respondent shall
clean up the releases of paint waste and foundry sand, and any other
contaminants, in the trenches located behind the recycling facility.
4. Within
forty-five (45) days of the Effective Date of this Agreed Order, Respondent
shall submit to IDEM documentation that releases of paint waste, foundry sand,
and any other contaminants, in the trenches have been cleaned up.
5. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
submit to IDEM a site assessment plan.
The purpose of the site assessment plan shall be to conduct sampling and
analysis in order to assess potential soil and ground water contamination in
the trenches located behind the recycling building, and if necessary, the
nature and extent of contamination. The
site assessment plan shall be based upon the principles outlined within IDEM’s
Risk Integrated System of Closure (RISC) Technical Resource Guidance Document
(“TRGD”), dated February 15, 2001, which can be accessed at http://www/IN/gov/idem/land/risc. In addition, the site assessment plan shall:
a. Describe
and evaluate all areas of potential contamination in and around the area of
concern.
b. Specify
the method of determining the number and location of samples to be taken to yield
a representative assessment of the area of concern. This method shall be:
1. random
sampling, pursuant to Section 3.4 of Chapter 3 of the TRGD; or
2. directed
sampling, pursuant to Section 3.4 of Chapter 3 of the TRGD; and
3. developed
to provide locations and methods of any ground water samples pursuant to
Section 3.4 of Chapter 3 of the TRGD.
c. Specify
how the soil samples will be obtained and handled in order to minimize loss of
volatile constituents. Respondent may
composite samples of non-volatiles (i.e., metals and semi-volatiles), but shall
not composite samples of volatiles, pursuant to Section 3.4 of Chapter 3 of the
TRGD.
d. Specify
how the ground water samples will be obtained and describe the sampling
procedures.
e. Clearly
define all sampling and analytical protocols designed to identify hazardous
waste or its constituents, pursuant to 40 CFR Part 261, including 40 CFR Part
261 Appendices I, II, III, and VIII. The
site assessment plan shall include the method of sample collection, pursuant to
“Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA
Publication SW-846. This includes, but
is not limited to, sample collection containers, preservatives, and holding
times. Specify the analytical methods to
be used and the method’s Estimated Quantitation Limits (EQLs).
f. Specify
that chain-of-custody of the samples shall be maintained and Quality Assurance
and Quality Control (“QA/QC”) procedures shall be followed, pursuant to
Appendix 2 of the TRGD.
g. Include
within the site assessment plan a supplemental contingent plan for determining
the nature and extent of:
1. soil
contamination, as specified in Chapter 4 of the TRGD, in the event that
sampling and analysis indicates soil contamination to exist above default residential
levels as specified in Table A, Appendix I, of the TRGD; and
2. ground
water contamination in the event that sampling and analysis indicates hazardous
waste or its constituents are detected in the ground water as specified in
Chapter 4 of the TRGD.
h. Include
within the site assessment plan time frames for its implementation.
i. Be
approved by IDEM prior to its implementation.
6. Within
fifteen (15) days of receiving notice from IDEM of approval of the site
assessment plan, Respondent shall implement it as approved and in accordance
with the time frames contained therein.
7. Within
fifteen (15) days of obtaining the analytical results, Respondent shall submit
said results, including chain-of-custody information, and QA/QC records,
pursuant to Appendix 2 of the TRGD, to IDEM.
8. If soil
or ground water contamination is identified, Respondent shall submit within
sixty (60) days subsequent to the completion of the analyses, a remediation
workplan to IDEM for the purpose of remediating all soil and /or ground water
contamination. The remediation workplan
shall:
a. In
accordance with Chapter 6 of the TRGD, remediate each contaminated area to
closure. Closure levels shall be one of
the following:
1. default
residential levels, pursuant to Table A, Appendix I, in the TRGD; or
2. commercial/industrial
default values (if appropriate to the facility), pursuant to Table A, Appendix
I, in the TRGD. Ground water shall meet
residential default values at the property boundary or control; or
3. closure
levels for soil can also be established using the non-default procedures
presented in Chapter 7 of the RISC Technical Guide. The alternate cleanup level proposal must
document that the constituents left in soil will not adversely impact any other
environmental medium (ground water, surface water, or atmosphere) and that
direct contact through dermal exposure, inhalation, or ingestion will not
result in threats to human health or the environment; or
4. background
levels for metals, pursuant to Section 1.6 of Chapter 1 of the TRGD, and/or the
analytical method’s estimated quantitation limits (“EQLs”) for organics.
b. Include
a soil and/or a ground water sampling and analysis plan to be performed after
the cleanup has been performed which verifies that all contamination has been
removed.
c. Include
within the remediation workplan time frames for its implementation.
9. Within
fifteen (15) days of approval by IDEM of the remediation workplan, Respondent
shall implement the plan as approved and in accordance with the time frames
contained therein.
10. Within
thirty (30) days of completion of the remedial action conducted pursuant to the
remediation workplan, Respondent shall submit to IDEM certification by an
independent registered professional engineer that the remedial action has been
completed as outlined in the approved remediation workplan.
11. In the
event that IDEM determines that any plan submitted by Respondent is deficient
or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM
in accordance with IDEM’s notice. After
three (3) submissions of such plan by Respondent, IDEM may modify and approve
any such plan and Respondent must implement the plan as modified by IDEM. The
approved plan shall be incorporated into this Agreed Order and shall be deemed
an enforceable part thereof.
12. All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Aubrey
N. Sherif |
Senior
Environmental Manager |
Indiana
Department of Environmental Management |
Office
of Enforcement – Mail Code 60-02 |
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13. Respondent
is assessed a civil penalty of Nine Thousand Dollars ($9,000). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date of this Agreed Order.
14. In the
event the terms and conditions of the following paragraphs are violated, the
Complainant may assess and the Respondent shall pay a stipulated penalty in the
following amount:
Violation |
Penalty |
Failure
to comply with Order paragraph 4 |
$500
per week |
Failure
to comply with Order paragraph 5 |
$500
per week |
Failure
to comply with Order paragraph 6 |
$500
per week |
Failure
to comply with Order paragraph 7 |
$500
per week |
Failure
to comply with Order paragraph 8 |
$500
per week |
Failure
to comply with Order paragraph 9 |
$500
per week |
Failure
to comply with Order paragraph 10 |
$500
per week |
15. Stipulated
penalties shall be due and payable within thirty (30) days after Respondent receives
written notice that the Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude the Complainant from seeking any
additional relief against the Respondent for violation of the Agreed
Order. In lieu of any of the stipulated
penalties given above, the Complainant may seek any other remedies or sanctions
available by virtue of Respondent’s violation of this Agreed Order or Indiana
law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
16. Civil
and stipulated penalties are payable by check to the Environmental Management
Special Fund. Checks shall include the
Case Number of this action and shall be mailed to:
Cashier |
Indiana
Department of Environmental Management-Mail Code 50-10C |
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17. In the
event that the civil penalty required by Order paragraph 13 is not paid within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
pay interest on the unpaid balance at the rate established by IC
24-4.6-1-101. The interest shall
continue to accrue until the civil penalty is paid in full.
18. This
Agreed Order shall apply to and be binding upon the Respondent, its successors
and assigns. The Respondent's signatories to this Agreed Order certify that
they are fully authorized to execute this document and legally bind the parties
they represent. No change in ownership,
corporate, or partnership status of the Respondent shall in any way alter its
status or responsibilities under this Agreed Order.
19. In the
event that any terms of the Agreed Order are found to be invalid, the remaining
terms shall remain in full force and effect and shall be construed and enforced
as if the Agreed Order did not contain the invalid terms.
20. Notwithstanding
any other provision of this Agreed Order, the Complainant reserves, and this
Agreed Order is without prejudice to, the right to institute proceedings in
this action or in a new action for injunctive relief, costs, civil penalty
and/or remediation of environmental contamination that is either discovered
after the entry into the Agreed Order or that has not been adequately remedied
despite compliance by Respondent with the terms of this Agreed Order.
21. The
Respondent shall provide a copy of this Agreed Order, if in force, to any
subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors,
firms and other persons performing work under this Agreed Order comply with the
terms of this Agreed Order.
22. This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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By: |
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By: |
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Nancy
L. Johnston, Chief |
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Printed: |
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Hazardous Waste Section |
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Office of Enforcement |
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Date: |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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Office of Legal Counsel |
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Date: |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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OF |
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, 2006. |
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For The Commissioner: |
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Signed on October 13, 2006 |
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Matthew T. Klein |
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Assistant Commissioner |
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of Compliance and Enforcement |
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