STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

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 #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:

Department of Environmental Management

 

 

 

By: _________________________

By:  _________________________

 

Nancy Johnston, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: __________________

Date: _______________________

 

 

 

 

 

COUNSEL FOR RESPONDENT TWO

 

LITTLE BEES:

 

 

 

 

 

By: ________________________

 

 

 

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_______

DAY OF

_______________________,

20__.

 

 

For the Commissioner:

 

 

 

Signed 11/10/2016 By:

 

Peggy Dorsey

 

Deputy Assistant Commissioner

 

Office of Land Quality