STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2012-20724-H
					)
DAVID L. WILLIAMS d/b/a AAA AUTO SALVAGE,					)
					)
Respondent.					)

AGREED ORDER

Complainant and Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent’s entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is David L. Williams d/b/a AAA Auto Salvage “Respondent”, who owns and operates the company located at 3001 West U.S. Highway 40, in West Terre Haute, Vigo County, Indiana (“Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) on March 30, 2012 via Certified Mail to:

David L. Williams

d/b/a AAA Auto Salvage

8963 South 350 West

Rosedale, Indiana 47874

5. Respondent owns and operates an auto salvage and metal scrap yard business at the Site. At the time of the inspections, Respondent was storing waste tires on-site.

6. 329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270, and Part 273 including these identified below.

7. During an investigation, including inspections, on August 28, 2009; October 4, 2011; and January 18, 2012, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 40 CFR 262.11, Respondent did not make hazardous waste determinations on several 5-gallon buckets, which previously contained hydraulic oil and were not properly emptied or cleaned. Additionally, during the October 4, 2011 inspection, the buckets were open and had accumulated rain water.

b. Pursuant to 329 IAC 13-4-3(e), upon detection of a release of used oil, a person must stop the release; contain the release; clean up the release; and report the release if necessary. Respondent caused or allowed automotive fluids (used oil) from heavy equipment to leak onto the ground in many areas of the Site. Additionally, Respondent did not promptly stop, contain, and clean up the releases.

c. 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 and 329 IAC 10-4-3. Respondent allowed automotive fluids to be released into the environment (onto pervious ground) in the following areas:

1) Underneath a Bobcat near the front (southeast) entrance;

2) Underneath a Tractor;

3) Near a scrap metal storage pile where automotive parts were stored;

4) Underneath a Front-end Loader in the northwest area of the Site;

5) Underneath a Front-end Loader which was idling during the January 18, 2012 inspection; and

6) Underneath an inoperable Crusher.

d. 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 automotive fluids, waste tires, and other solid wastes in the following areas:

During the October 4, 2011 inspection, automotive releases were observed;

1) Underneath a Bobcat near the front (southeast) entrance;

2) Near a scrap metal storage pile where automotive parts were stored; and

3) Underneath a Tractor.

During the October 4, 2011 inspection, waste tires were observed near an inoperable tire cutter.

During the January 18, 2012 inspection, automotive fluid releases were observed:

1) Underneath a Front-end Loader in the northwest area of the Site;

2) Underneath a Front-end Loader which was idling during the January 18, 2012 inspection; and

3) Underneath an inoperable Crusher.

During the January 18, 2012 inspection, waste tires were observed:

1) In a roadside ditch located parallel with the southern boundary of the Site near Sugar Creek; and

2) Along the northern boundary of the Site.

During the October 4, 2011 and January 18, 2012 inspections, plastic bags of aluminum cans were on the ground near the aluminum baler.

During the October 4, 2011 inspection, plastic 5-gallon buckets were observed on the ground near the aluminum baler.

e. 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 waste tires, automotive fluids, and other solid wastes to be deposited at the Site in manner unacceptable to the solid waste management board.

f. Pursuant to IC 13-30-2-1(5), no person shall dump or cause or allow the open dumping of garbage or other solid waste in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3. Respondent caused and allowed automotive fluids, waste tires, and other solid wastes to be open dumped at the Site.

g. Pursuant to IC 13-30-2-1(6), no person shall dispose of solid waste in, upon, or within the limits of or adjacent to a public highway, state park, state nature preserve, or recreation areas or in or immediately adjacent to a lake or stream. Respondent open dumped waste tires in a roadside ditch located parallel with the southern boundary of the Site near Sugar Creek.

h. 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 allowed waste tires, plastic bags of aluminum cans, and plastic 5-gallon buckets, and other unconsolidated solid wastes to be stored at the Site. Additionally, Respondent caused and allowed automotive fluids to be disposed at the Site in a manner which creates a threat to human health or the environment.

i. 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 caused and allowed waste tires, automotive fluids, and solid wastes to be open dumped at the Site.

8. 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 Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with statutes and rules listed in the findings here at issue.

3. Within thirty (30) days of the Effective Date, Respondent shall comply with IC 13-30-2-1(3). Specifically, Respondent shall remove all waste tires from the Site and dispose of the waste tires at a permitted solid waste management facility.

4. Within forty-five (45) days of the Effective Date, Respondent shall submit written documentation that the waste tires removed from the Site have been taken to a permitted solid waste management facility.

On April 23, 2012 and September 4, 2012, IDEM received written documentation demonstrating waste tires at the Site have been disposed of at a permitted solid waste management facility.

5. Within thirty (30) days of the Effective Date, Respondent shall place all plastic bags of aluminum cans into a storage container or remove from the Site by disposal at a permitted solid waste management facility.

6. Within thirty (30) days of the Effective Date, all unconsolidated solid wastes on the ground shall be removed from the Site by disposal at a permitted solid waste management facility.

7. Within thirty (30) days of the Effective Date, Respondent shall comply with IC 13-30-2-1(3), (4) and (5). Specifically, Respondent shall clean up the automotive fluid releases in the following areas by excavating the soil at least six inches beyond visible contamination:

1) Underneath a Front-end Loader in the northwest area of the Site;

2) Underneath a Front-end Loader which was idling during the January 18, 2012 inspection; and

3) Underneath an inoperable Crusher.

8. Within forty-five (45) days of the Effective Date, Respondent shall submit to IDEM written documentation showing the excavated soil has been disposed of at a permitted solid waste management facility.

On April 23, 2012 and September 4, 2012, IDEM received written documentation demonstrating excavated soil has been disposed of at a permitted solid waste management facility.

9. Upon the Effective Date, Respondent shall comply with IC 13-30-2-1(1). Specifically, Respondent shall take immediate steps to capture any potential releases of automotive fluids from any heavy equipment at the Site. This includes any automotive fluid releases from auto crushing activities and maintenance activities.

10. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Jennifer Reno, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

11. Respondent is assessed and agrees to pay a civil penalty of eleven thousand two hundred dollars ($11,200). Said penalty amount shall be due and payable to the Environmental Management Special Fund in four (4) installments of $2,800 each. The first installment shall be due thirty (30) days of the Effective Date; the second installment shall be due on or before February 28, 2013; the third installment shall be due on or before May 31, 2013; and the final installment shall be due on or before August 31, 2013. Interest shall be accrue on unpaid amounts at the rate established by IC 24-4.6-1-101.

12. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

Paragraph	Penalty
Order paragraph 3	$250 per week or part thereof
Order paragraph 4	$250 per week or part thereof
Order paragraph 5	$250 per week or part thereof
Order paragraph 6	$250 per week or part thereof
Order paragraph 7	$250 per week or part thereof
Order paragraph 8	$250 per week or part thereof

13. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

14. Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

15. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 11, above.

16. This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order certify that he is fully authorized to execute this Agreed Order and legally bind the party he represents. No change in ownership, corporate, or partnership status of Respondent shall in any way alter his status or responsibilities under this Agreed Order.

17. In the event that any terms of this Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if this Agreed Order did not contain the invalid terms.

18. 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.

19. This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of his applicable permits or any applicable Federal or State law or regulation.

20. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

21. Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

22. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

23. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: ______________________				Date: ________________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_________	DAY OF	_________________,	20__.
				For the Commissioner:
				Signed on November 2, 2012___
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality