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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Case
#2015-23078-S |
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TWO LITTLE
BEES AUTO PARTS, INC., |
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Respondent. |
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AGREED
ORDER
Complainant
and Respondent desires 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 Two Little Bees Auto Parts,
Inc. (“Respondent”), which operates the auto salvage facility, located at 315
and 505 South Tibbs Avenue, in Indianapolis, Marion County, Indiana (“Site”).
3.
IDEM has jurisdiction over the parties and
the subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a
Notice of Violation (“NOV”) via Certified Mail to:
Mr.
David Thompson |
Mr.
David Thompson, Registered Agent |
Two
Little Bees Auto Parts, Inc. |
Two
Little Bees Auto Parts, Inc. |
505
South Tibbs |
5737
S. Kooling Avenue |
Indianapolis,
IN 46241 |
Indianapolis,
IN 46227 |
5.
During an investigation including an
inspection on April 24, 2015, conducted by a representative of IDEM, the
following violations were found:
a.
Pursuant to 329 Indiana Administrative Code
(“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.
As noted during the inspection,
Respondent caused and/or allowed solid waste, including, but not limited to
automotive fluids and used oil to be disposed at the Site in a manner which
creates a threat to human health or the environment. Releases of automotive fluids, including used
oil were noted in the dismantling and vehicle fluid draining area, cutting
area, near and surrounding the crusher, two areas in the vehicle storage yard (western
portion of the property), and engine storage area (located on the southern
parcel).
b.
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.
As noted during the inspection,
Respondent caused and/or allowed automotive fluids and used oil to be open
dumped at the Site. Releases of
automotive fluids, including used oil were noted in the dismantling and vehicle
fluid draining area, cutting area, near and surrounding the crusher, two areas
in the vehicle storage yard (western portion of the property), and engine
storage area (located on the southern parcel).
c.
Pursuant to 329 IAC 13-4-3(e), upon detection
of a release of used oil to the environment not subject to the requirements of
40 CFR 280 Subpart F, which has occurred after the effective date of this rule,
a generator must perform the following clean-up steps: stop the release;
contain the released used oil; clean up and manage properly the released used
oil and other materials; communicate a spill report in accordance with 327 IAC
2-6.1 if required; if necessary to prevent future releases, repair or replace
any leaking used oil storage containers or tanks prior to returning them to
service.
As noted
during the inspection, releases of used oil were noted in the dismantling and
vehicle fluid draining area, cutting area, near and surrounding the crusher,
two areas in the vehicle storage yard (western portion of the property), and
engine storage area (located on the southern parcel). The releases were not
reported to the IDEM Emergency Response Spill Line.
d.
Pursuant to 327 IAC 2-6.1-5(5), spills from a
facility must be reported when any spill for which a spill response has not
been done.
As noted during
the inspection, releases of automotive fluids and used oil were noted in the
dismantling and vehicle fluid draining area, cutting area, near and surrounding
the crusher, two areas in the vehicle storage yard (western portion of the
property), and engine storage area (located on the southern parcel). The releases were not
reported to the IDEM Emergency Response Spill Line.
e.
Pursuant to Indiana Code (“IC”) 13-30-2-1(1),
no person shall discharge, emit, cause, allow, or threaten to 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 any form that causes or would cause pollution that violates or
would violate 329 IAC 10-4-2 and 329 IAC 10-4-3.
As noted during the inspection,
Respondent allowed automotive fluid and used oil to be
released into the environment in many areas throughout the
facility. Releases of automotive fluids,
including used oil were noted in the dismantling and vehicle fluid draining
area, cutting area, near and surrounding the crusher, two areas in the vehicle
storage yard (western portion of the property), and engine storage area (located
on the southern parcel).
f.
Pursuant to IC 13-30-2-1(3), no person shall
deposit any contaminants upon the land in a place and 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.
As noted during the inspection,
Respondent deposited contaminants, including, but not limited to, automotive
fluids and used oil upon the land in a place and manner that creates or would
create a pollution hazard that violates 329 IAC 10-4-2 and 329 IAC 10-4-3. Releases of automotive fluids, including used
oil were noted in the dismantling and vehicle fluid draining area, cutting
area, near and surrounding the crusher, two areas in the vehicle storage yard
(western portion of the property), and engine storage area (located on the
southern parcel).
g.
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.
As noted during the inspection,
Respondent deposited or caused and/or allowed the deposit of contaminants
and/or solid waste upon the land, including, but not limited to, automotive
fluids and used oil in a method which has not been determined by the board to
be acceptable. Releases of automotive
fluids, including used oil were noted in the dismantling and vehicle fluid
draining area, cutting area, near and surrounding the crusher, two areas in the
vehicle storage yard (western portion of the property), and engine storage area
(located on the southern parcel).
h.
Pursuant to 329 IAC 13-4-5, generators must
ensure that their used oil is transported only by
transporters who have obtained EPA identification numbers.
As noted
during the inspection, Respondent that it gave the used oil generated at this
facility, to a person that is not registered, licensed
or permitted or recognized by the state, county or municipal government to
manage used oil.
i.
Pursuant to 329 IAC 13-4-1(b)(5), generators
who direct shipments of off-specification used oil from their facility to a
used oil burner or first claim that used oil that is to be burned for energy
recovery meets the used oil fuel specifications set forth in 329 IAC 13-3-2 must
also comply with 329 IAC 13-9.
As noted
during the inspection, Respondent stated it gave used oil generated at this
facility, to a person that is not registered, licensed or permitted or
recognized by the state, county or municipal government to manage used
oil. Respondent also indicated that the used oil
generated is being given to a person to be used in an oil burner.
6.
In recognition of the settlement reached,
Respondent waives any rights 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.
Upon Effective Date of this Agreed Order,
Respondent shall ensure that the used oil is transported only
by transporters who have obtained EPA identification numbers.
3.
Upon Effective Date of this Agreed Order,
Respondent shall only distribute used oil to a person who is registered,
licensed or permitted or recognized by the state, county or municipal government
to manage used oil.
4.
Within thirty (30) days of the Effective
Date, Respondent shall comply with IC 13-30-2-1(1), (3) and (4). Respondent
shall clean up releases by excavating the soil six (6) inches beyond visible
contamination
in the following areas:
a)
The two areas in the vehicle storage yard
(western portion of the property);
b)
the cutting area;
c)
near and surrounding the crusher (located on
the southern parcel); and
d)
the engine
storage area (located on the southern parcel).
The engine storage area is located on a concrete pad with soil
surrounding the perimeters. Respondent
Operator shall mechanically clean the concrete by scraping, sweeping, and/or
power washing.
5.
Within forty-five (45) days of the Effective
Date, Respondent shall submit to IDEM documentation, including disposal
receipts and photos of the concrete pad and soil areas demonstrating that
releases in the above areas have been cleaned up and the
waste generated has been properly transported and disposed of at a permitted
facility.
6.
Upon the Effective Date, Respondent shall
comply with IC 13-30-2-1(1)(3)(4). Specifically, Respondent shall take immediate
steps to capture any potential release of fluids during auto crushing/dismantling
activities and immediately cease allowing the release of contaminants into the
environment.
7.
Within forty
five (45) days of the Effective Date, Respondent shall submit a plan on how
future releases will be addressed. The plan shall include that releases/spills will be responded to within 24 hours. The plan shall also include preventive
measures that will be taken to prevent future
automotive fluid releases/spills.
8.
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
contamination of different media (soil, ground water, and vapor) from the areas
of concern which include the former and current dismantling and vehicle fluid
draining area (north of the office at 315 S. Tibbs), and, if necessary, the
nature and extent of contamination. The
site assessment plan shall be based upon the
principles outlined in IDEM’s Remediation Closure Guide (RCG), dated March 22,
2012 as corrected through July 9, 2012, which can be accessed at: http://www.IN.gov/idem/6683.htm. In addition, the site assessment shall:
a. Describe and evaluate all areas of
potential contamination in and around each area of concern.
b. Specify the method of determining the
number and location of samples to be taken to yield a
representative assessment of each media of concern. This method shall be in accordance with
Section 3, Conceptual Site Model of the RCG, to address each media:
1. soil sampling,
pursuant to Sections 3 and 8 of the RCG; or
2. ground water
sampling, pursuant to Sections 3,4, and 9 of the RCG.
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 3.2.4 of the RCG.
d. Specify how the ground water samples,
pursuant to Section 3.3 of the RCG, 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 261, including 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 reporting and detection limits.
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 Section 3.8
through 3.10 of the RCG for all media.
g. Include within the site assessment plan
a supplemental contingent plan for determining the horizontal and vertical
nature and extent of:
1. soil contamination, as specified
Sections 3 and 8 of the RCG, in the event that sampling and analysis indicates
soil contamination to exist above screening levels as specified in Table A-6 of
Appendix A of the RCG; 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 Sections 3,
4, and 9 of the RCG.
h. If soil or ground water contamination
is above screening levels and there is an enclosed structure where indoor air
may be impacted, it may be necessary to conduct a vapor intrusion
investigation. In regard to soil
contamination, professional judgment will dictate the necessity of a vapor
intrusion investigation.
i. Include within the site assessment
plan time frames for its implementation.
j. Be
approved by IDEM prior to its implementation.
9.
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.
10. 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 Section 3.8
through 3.10 of the RCG to IDEM.
11. Respondent shall submit within forty-five
(45) days subsequent to the submittal of the analytical results, a remediation workplan which identifies potential contaminants, potential
receptors, and exposure pathways to IDEM for the purpose of identifying all
media contamination. The remediation workplan shall:
a. In accordance with Section 7, Risk
Evaluation of the RCG, remediate each contaminated area to meet the remediation
objective(s). Remediation objectives
shall be one of the following:
1. screening
levels, pursuant to Table A-6 of Appendix A in the RCG; or
2. levels based
upon site specific risk assessment; or
3. levels based on site specific risk
assessment taking into account remedial measures that manage the risk and
controls completed and potential pathways; or
4. background
levels for inorganics, pursuant to the RCG, and/or the analytical method’s
estimated quantitation limits (“EQLs”) for organics.
b. Include a sampling and analysis plan to
be performed after the remedial activities have been
performed which verifies that all contamination meets the remediation
objective(s).
c. Include within the remediation workplan time frames of its implementation.
12. Within fifteen (15) days of approval by
IDEM of the remediation workplan, Respondent shall
implement the remedial action(s) within the plan as approved and in accordance
with the time frames contained therein.
13. Within thirty (30) days of completion of
the remedial action(s) conducted pursuant to the remediation workplan, Respondent shall submit to IDEM certification by
an independent registered professional engineer that the remedial action(s)
has/have been completed as outlined in the approved remediation workplan.
14. In the event 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 and enforceable part thereof.
15. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by
IDEM, shall be sent to:
Christina Halloran, Enforcement Case
Manager |
Office of Land Quality |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
16. Respondent is assessed
and agrees to pay a civil penalty of Eight Thousand Seven Hundred and Fifty
Dollars ($8,750.00). Said penalty amount
shall be due and payable to the Environmental Management Special Fund in eleven
monthly installments of Seven Hundred Twenty Nine Dollars and Seventeen Cents ($729.17)
and one monthly installment of Seven Hundred Twenty Nine Dollars and Thirteen
Cents ($729.13). The first installment
is due within thirty (30) days of the Effective Date; the 30th day
being the “Due Date”.
17. 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:
Order
Paragraph # |
Penalty |
Order
Paragraph #4 |
$100
per week late |
Order
Paragraph #5 |
$100
per week late |
Order
Paragraph #7 |
$100
per week late |
Order
Paragraph #8 |
$100
per week late |
Order
Paragraph #9 |
$100
per week late |
Order
Paragraph #10 |
$100
per week late |
Order
Paragraph #11 |
$100
per week late |
Order
Paragraph #12 |
$100
per week late |
Order
Paragraph #13 |
$100
per week late |
18. 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
any 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.
19. 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 |
Office of Legal Counsel |
IGCN, Room N1307 |
100 North Senate Avenue |
Indianapolis, IN 46204 |
20. 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 pay any unpaid balance. Such interest shall be payable to the
Environmental Management Fund, and shall be payable to IDEM in the manner
specified in Paragraph 19, above.
21. 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.
22.
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.
23.
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.
24.
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 their applicable permit or any applicable
Federal or State law or regulation.
25.
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 Respondents may incur as a result of Respondent’s efforts to
comply with this Agreed Order.
26.
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.
27.
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.
28.
This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL RECOMMENDATION: |
RESPONDENT TWO LITTLE BEES: |
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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 TWO |
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LITTLE BEES: |
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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
OF |
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For the
Commissioner: |
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Signed 11/10/2016
By: |
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Peggy Dorsey |
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Deputy Assistant
Commissioner |
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Office of
Land Quality |
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