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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No.
2012-20771-H |
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ALTERNATIVE TWO LLC, |
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Respondent. |
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AGREED ORDER
Complainant
and Respondent desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order.
Pursuant to 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 Alternative Two LLC
(“Respondent”), which operates a waste tire storage site with Registration
number 071-S-00555 located at 700 West Chippewa Street in South Bend, St.
Joseph County, Indiana (“Site”).
3.
IDEM has jurisdiction over the parties and
the subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a
Notice of Violation (NOV) via Certified Mail on June 19, 2012, to:
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Ken
Schumacher, Registered Agent |
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Alternative
Two LLC |
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700
W. Chippewa |
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South
Bend, Indiana 46614 |
5.
During an investigation including an
inspection on February 13, 2012, conducted by a representative of IDEM, the
following violations were found:
a.
Pursuant to 329 IAC 15-3-2(2) and (3), the owner
or operator of a waste tire storage site shall:
(2) comply with all
applicable requirements of this rule; and
(3) maintain
financial assurance as required by 329 IAC 15-5.
As noted during the inspection,
Respondent had not complied with all applicable requirements of this rule and
had not maintained financial assurance as required by 329 IAC 15-5.
b.
Pursuant to 329 IAC 15-3-9, the owner or
operator of a waste tire storage site or waste tire processing operation shall
comply with all conditions included in the certificate of registration.
As noted during the inspection,
Respondent failed to comply with all of the conditions included in the
certificate of registration.
Specifically, Respondent stored more than 12,500 PTEs on site.
c.
Pursuant to 329 IAC 15-3-16, if the
information provided in the application for the certificate of registration
changes, the owner or operator of a waste tire storage site or waste tire
processing operation shall provide the current information to the department no
more than thirty (30) days after the information provided in the application
for the certificate of registration changes.
As noted during the inspection,
Respondent exceeded the number of waste tires listed on its registration by
661,257 PTEs over the permitted 12,500 PTEs and had not notified IDEM of its
current number of waste tires.
d.
Pursuant to 329 IAC 15-3-17(j)(1), waste tires must be drained on the day of receipt; and
as necessary thereafter to prevent accumulation of water in the waste tires.
As noted during the inspection,
Respondent allowed tires to be stored in a manner in which the tires
accumulated water.
e.
Pursuant to 329 IAC 15-3-17(j)(2), within
seven (7) days after receipt, whole waste tires must be altered or modified so
that the tire cannot hold water by shredding, chopping, drilling with holes and
stacking to assure drainage; or slitting longitudinally and stacking so the
tires will not collect water.
As noted during the inspection,
Respondent allowed tires to be stored without any modifications and thus
allowed the tires to accumulate water.
f.
Pursuant to 329 IAC 13-4-3(c), containers and
aboveground tanks used to store used oil at generator facilities must be in
good condition with no severe rusting, apparent structural defects, or
deterioration; and not be leaking (no visible leaks).
As noted during the inspection,
Respondent utilized an open top plastic drum to store used oil. The container had structural defects that
allowed the used oil to spill onto the ground.
g.
Pursuant to 329 IAC 13-4-3(d) (1), containers
and aboveground tanks used to store used oil at generator facilities must be
labeled or marked clearly with the words “Used Oil”.
As noted during the inspection,
Respondent utilized an open top plastic drum to store used oil that was not labeled
with the words “Used Oil”.
h.
Pursuant to 329 IAC 13-4-3(e), upon detection
of a release of used oil to the environment, a generator must do the following:
stop the release; contain the release; clean up the release; and report the
spill if necessary.
As noted during the inspection,
Respondent did not perform the required clean up steps upon detection of the
releases in the storage area where leaking drums were stored and under heavy
machinery located next to the shelter.
i.
Pursuant to 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.
As noted during the inspection,
Respondent deposited waste, including oil and automotive fluids, in the storage
area where leaking drums were stored and under heavy machinery located next to
the shelter, in a method unacceptable to the solid waste management board.
6. 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 329 IAC 13, 329
IAC 15, and IC 13-30.
3.
Respondent shall, within one hundred and eighty
(180) days of the Effective Date of this Agreed Order, come into compliance
with Waste Tire Registration No. 071-S-00555, which includes reducing the
number of Passenger Tire Equivalent (PTEs) to the amount listed on the waste
tire registration.
4.
Respondent shall, within two hundred and ten
(210) days of the Effective Date of this Agreed Order, submit documentation of
proper disposal of all solid waste.
Documentation shall include receipts for disposal from a state approved
solid waste management facility.
5.
Respondent shall, immediately upon the
Effective Date, drain waste tires on the day of receipt; and as necessary
thereafter to prevent accumulation of water in the waste tires, in accordance
with 329 IAC 15-3-17(j)(1).
6.
Respondent shall, within seven (7) days after
receipt, alter or modify tires so that they cannot hold water by shredding,
chopping, drilling with holes and stacking tires to assure drainage; or
slitting longitudinally and stacking so tires will not collect water, in
accordance with 329 IAC 15-3-17(j)(2).
7.
Respondent shall, immediately upon the
Effective Date, ensure compliance with 329 IAC 13-4-3(c). Specifically, Respondent shall contain “Used
Oil” in containers that are in good condition and not leaking.
8.
Respondent shall, immediately upon the Effective
Date, ensure compliance with 329 IAC 13-4-3(d).
Specifically, Respondent shall mark or label all used oil containers
with the words “Used Oil”.
9.
Respondent shall, within thirty (30) days of
the Effective Date, clean up the releases in the storage area where leaking
drums were stored and under heavy machinery located next to the shelter.
10.
Respondent shall, within forty-five (45) days
of the Effective Date, submit documentation to IDEM that the releases noted in
Order paragraph 9 have been cleaned up.
11.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Janet Arnold, Technical
Environmental Specialist |
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Office of Land Quality – Mail Code
60-02L |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
12.
Respondent is assessed and agrees to pay a
civil penalty of Twenty Thousand Six Hundred Dollars ($20,600). Said penalty amount shall be due and payable
to the Waste Tire Fund in twenty-four (24) monthly installments. The first installment payment in the amount
of Eight Hundred Fifty-Eight Dollars and Forty-One Cents ($858.41) is due
within thirty (30) days of the Effective Date; the 30th day being
the “Due Date”. Thereafter, subsequent monthly
payments in the amount of Eight Hundred Fifty-Eight Dollars and Thirty-Three
Cents ($858.33) shall be due on the 30th day being the “Due
Date”. Interest shall accrue on unpaid
amounts at the rate established by IC 24-4.6-1-101.
13.
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:
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Paragraph |
Penalty |
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Failure to
comply with paragraph 3 |
$500 per
day |
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Failure to
comply with paragraph 4 |
$100 per
day |
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Failure to
comply with paragraph 5 |
$500 per
day |
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Failure to
comply with paragraph 6 |
$500 per
day |
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Failure to
comply with paragraph 7 |
$500 per
day |
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Failure to
comply with paragraph 8 |
$500 per
day |
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Failure to
comply with paragraph 9 |
$500 per
day |
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Failure to
comply with paragraph 10 |
$100 per
day |
14.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
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.
15.
Civil and stipulated penalties are payable by
check to the “Waste Tire Fund.” Checks
shall include the Case Number of this action and shall be mailed to:
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Indiana Department of Environmental
Management |
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Cashier – Mail Code 50-10C |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
16.
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 15, above.
17.
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 they are fully authorized to execute this Agreed Order and legally
bind the party they represent. No change
in ownership, corporate, or partnership status of Respondent shall in any way
alter its status or responsibilities under this Agreed Order.
18.
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.
19.
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.
20.
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 its applicable permits or any applicable Federal or State law
or regulation.
21.
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.
22.
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.
23.
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.
24.
This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
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By:
_________________________ |
By: _________________________ |
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed:
______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date:
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COUNSEL FOR RESPONDENT: |
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By:
________________________ |
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Date:
______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS |
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DAY
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For the
Commissioner: |
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Signed
February 25, 2013 |
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Bruce H Palin |
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Assistant
Commissioner |
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Office of
Land Quality |
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