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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
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OF
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Complainant, |
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v. |
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Case No. 2018-25424-S |
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shafer properties-lake station llc; |
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Paul’s Auto Yard, Inc.; and shafer pick |
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a part llc d/b/a paul’s auto yard |
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Respondents. |
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AGREED ORDER
Complainant
and Respondents 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 Respondents 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.
Respondents are Shafer Properties Lake Station
LLC; Paul’s Auto Yard, Inc.; and Shafer Pick a Part LLC d/b/a Paul’s Auto Yard
(“Respondents”), who owns/operates the facility located at 1501 Lake Street, in
Lake Station, Lake 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”) to:
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Paul
Shafer, Registered Agent |
Paul
Shafer, Registered Agent |
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Shafer
Properties-Lake Station, LLC |
Paul’s
Auto Yard, Inc. |
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107
Greenway Street |
107
Greenway Street |
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Westville,
IN 46391 |
Westville,
IN 46391 |
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Paul
Shafer, Registered Agent |
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Shafer
Pick a Part LLC d/b/a Paul’s Auto Yard |
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107
Greenway Street |
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Westville,
IN 46391 |
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5.
329 Indiana Administrative Code (“IAC”) 3.1
incorporates certain federal hazardous waste management requirements found in
40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273,
including those identified below.
6.
During an investigation including an inspection
on June 5, 2018 conducted by a representative of IDEM, the following violations
were found:
a. 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.
As noted during the inspection,
Respondents stored seven thousand nine hundred and fifty two (7,952) passenger tire
equivalents (“PTE”) outside without 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.
b. 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.
At the time of the inspection, the waste tires were not stored, covered or altered to prevent rain
water accumulation.
c. Pursuant to IC 13-20-13-1.5, a person who
stores waste tires shall do so in a manner that does not pose a threat to human
health or the environment; does not pose a fire hazard; and controls vectors
that pose a threat to human health.
As noted
during the inspection, the waste
tires were not stored, covered or altered to prevent rain water accumulation.
d. Pursuant to IC 13-20-14-4, a source of waste tires shall dispose
of waste tires in the source's possession by one (1) or more of the following means:
(1) Delivery to
a wholesaler or to an agent of a wholesaler.
(2) Delivery to
a manufacturer of tires.
(3) Delivery to
a facility that retreads tires.
(4) Delivery to
a permitted final disposal facility regulated under environmental management
laws.
(5) Delivery to
a registered waste tire storage site.
(6) Delivery to
a registered waste tire processing operation.
(7) Collection
by a registered waste tire transporter.
As noted during the inspection, the waste tires were being taken to Paul’s Auto Yard in Westville, IN,
a facility not listed in IC 13-20-14-4.
e. Pursuant to 40 CFR 273.14(d)(1), universal waste
mercury-containing equipment ( i.e. , each device), or a container in which the
equipment is contained, must be labeled or marked clearly with any of the
following phrases: "Universal Waste", "Mercury Containing
Equipment", "Waste Mercury-Containing Equipment", or "Used
Mercury-Containing Equipment".
At noted during the inspection, the mercury switch bucket was not
labeled.
f. Pursuant to IC 13-20-17.7-5(d), a motor
vehicle recycler or any other person that removes mercury switches in
accordance with this section shall maintain records that document the number
of:
(1) end of life vehicles the person processed for recycling;
(2) end of life vehicles the person processed that contained
mercury switches; and
(3) mercury switches the person collected.
A
person that maintains records under this section shall retain the records for
at least three (3) years.
At the time of the inspection, the facility did not
have mercury switch removal records.
g. Pursuant to 40 CFR 273.13(c), a small
quantity handler of universal waste must manage universal waste
mercury-containing equipment in a way that prevents releases of any universal
waste or component of a universal waste to the environment. [Note: The plan
approved under IC 13-20-17.7-4 in Indiana is the “End of Life Vehicle Solution”
{commonly referred to as ELVS} Plan]. This
plan addresses issues such as the use of the ELVS bucket, employee safety
training, labeling, spills/releases, retention time, quantity limits, and
cleanup/safety equipment.
At the time
of the inspection, the facility did not have a mercury spill kit.
7. In recognition of the settlement
reached, Respondents waive 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 Respondents. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondents shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Within sixty (60) days of the Effective Date of
this Agreed Order, Respondents shall comply with 329 IAC 15-3-2. Specifically, Respondents shall remove from
the Site all waste tires in the excess of what is allowed to be stored on Site
without a waste storage permit according to 329 IAC 15-2-13.4 and IC
13-11-2-251. Respondents shall dispose
of excess waste tires at a state approved solid waste management facility or
recycle waste tires in an alternative manner acceptable by IDEM.
4.
Within seventy five (75) days of the Effective
Date of this Agreed Order, Respondents shall submit documentation demonstrating
the removal of all excess PTEs noted in Finding of Fact 6.a. Documentation shall include completed waste
tire manifests or receipts from a state approved waste management facility or
receipts or bill of ladings from an acceptable alternative facility.
5.
Upon the Effective Date of this Agreed Order,
Respondents shall comply with 329 IAC 10-4-2 and IC 13-20-13-1.5. Specifically, Respondents shall prevent water
from accumulating in tires by cutting, or drilling holes, and/or by storing in
a building, enclosed area or covered container.
6.
Upon the Effective Date of the Agreed Order,
Respondents shall comply with 40 CFR 273.14(d)(1). Specifically, Respondents shall clearly mark
or label all mercury switch accumulation containers or mercury containing
equipment (i.e. each device) with one of the following phrases: “Universal
Waste”, “Waste Mercury-Containing Equipment”, or Used Mercury-Containing
Equipment”.
7.
Upon the Effective Date of this Agreed Order,
Respondents shall comply with IC 13-20-17.7-5(d). Specifically, Respondents shall ensure that
records are maintained for at least three (3) years documenting the number of (1)
end to life vehicles the person processed for recycling; (2) end of life
vehicles the person processed that contained mercury switches; and (3) mercury
switches the person collected. Within
thirty (30) days of the Effective Date of the Agreed Order, Respondents shall submit
the procedures which will be implemented to comply with this record
requirement.
8.
Within thirty days (30) of the Effective Date,
Respondents shall comply with 40 CFR 273.13(c). Respondents shall obtain and maintain
appropriate safety and emergency equipment for mercury handling. This includes maintaining a mercury spill kit
on site.
9.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Christina Halloran, Enforcement Case
Manager |
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Office of Land Quality |
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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 |
10.
Respondents are assessed and agrees to pay a
civil penalty of Twenty Four Thousand Dollars ($24,000). Said penalty amount shall be due and payable
to the Waste Tire Fund in twelve (12) consecutive monthly installments over a
one (1) year period in the amount of Two Thousand Dollars ($2,000). Said penalty amount shall be due and payable
to the Waste Tire Fund within thirty (30) days of the Effective Date; the 30th
day being the “Due Date”. The next consecutive monthly installments shall be
due on or before the last day of the due month following the first monthly
installment.
11.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondents shall
pay a stipulated penalty in the following amount:
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Paragraph |
Penalty |
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Order
paragraph # 3 |
$500/week |
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Order
paragraph # 4 |
$100/week |
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Order
paragraph # 7 |
$100/week |
12.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondents receive written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant may notify Respondents at any time that a
stipulated penalty is due. Failure to
notify Respondents 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
Respondents for violation of this Agreed Order. Neither assessment nor payment
of stipulated penalties shall preclude Complainant from seeking additional
relief against Respondents 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.
13.
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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Office
of Legal Counsel |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
14.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date, Respondents
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 Respondents 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 13, above.
15.
This Agreed Order shall apply to and be binding
upon Respondents and their successors and assigns. Respondents’ 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 Respondents shall in any way
alter his status or responsibilities under this Agreed Order.
16.
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.
17.
Respondents shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondents shall ensure that all contractors, firms
and other persons performing work under this Agreed Order comply with the terms
of this Agreed Order.
18.
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 Respondents pursuant to this Agreed Order, shall not in any way relieve
Respondents of their obligation to comply with the requirements of his
applicable permits or any applicable Federal or State law or regulation.
19.
Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondents’ 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 Respondents’ efforts to comply with this Agreed Order.
20.
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.
21.
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 Respondents
may incur as a result of such communications with EPA or any other agency or
entity.
22.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
SHAFER PROPERTIES-LAKE STATION LLC |
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By: _________________________ |
By:
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Linda L.
McClure, Section Chief |
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Enforcement Section |
Printed: ______________________ |
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Office of
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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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RESPONDENT: |
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PAUL’S AUTO YARD, INC: |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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RESPONDENT: |
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SHAFER PICK A PART LLC |
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D/B/A PAUL’S AUTO YARD: |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For the
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_Signed
01/17/2020 By: |
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Peggy Dorsey, Assistant Commissioner |
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Office of
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