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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
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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. 2019-25932-S |
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Edward P and Carolyn A Metheny, |
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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. Respondents’ 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 Edward P and Carolyn A Metheny (“Respondents”), who own the
property located at 24920 Fillmore Road,
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”) to:
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Edward P and Carolyn A Metheny |
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34513
SW 188th Way Lot #311 |
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Homestead,
FL 33034 |
5.
During an investigation including inspections
on May 9, 2018, July 9, 2018, January 3, 2019, January 7, 2019, and January 8,
2019, conducted by a representative of IDEM, the following violations were
found:
a.
Pursuant to 329 Indiana Administrative Code
(“IAC”) 15-3-2, the owner 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 inspections,
Respondents stored approximately three thousand nine hundred eighty eight (3,988)
waste tires located outdoors at the Site 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.
As noted during the inspections, Respondents caused and/or allowed
solid waste, approximately three thousand nine hundred eighty eight
(3,988) waste tires located outdoors, to be stored
and/or disposed at the Site in a manner which creates a threat to human health
or the environment.
c.
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 inspections, Respondents caused and/or allowed
solid waste, approximately three thousand nine hundred eighty eight
(3,988) waste tires located outdoors, to be open
dumped at the Site.
d.
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 board.
As noted during the
inspections, Respondents deposited or caused and/or allowed solid waste,
approximately three
thousand nine hundred eighty eight (3,988) waste tires located outdoors, to be deposited at the Site in a method which has not been
determined by the board to be acceptable.
e.
Pursuant to IC 13-20-13-1.5, a
person that 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 inspections, Respondents stored approximately three thousand
nine hundred eighty eight (3,988) waste tires located outdoors,
uncovered, unaltered, and capable of holding water and attracting vectors that
pose a threat to human health.
f.
Pursuant to IC 13-20-13-2, a person
may not create or maintain a waste tire storage site or waste tire processing
operation unless the person has registered the waste tire storage site or waste
tire processing operation under this chapter or IC 13-7-23 (before its repeal);
and holds a valid certificate of registration issued under section 3 of this chapter
or IC 13-7-23-7 (before its repeal).
As
noted during the inspections, Respondents stored approximately three thousand
nine hundred eighty eight (3,988) waste tires located outdoors. Respondents have not
registered as a waste tire storage site or a waste tire processing
operation and therefore do not hold a valid certificate of registration.
g.
Pursuant to 329 IAC 10-4-4, the
owner of real estate upon which an open dump is located is responsible for the
following:
1.
Correcting and controlling any nuisance
conditions that occur as a result of the open dump.
2.
Eliminating any threat to human health or the
environment.
As
noted during the inspections, Respondents own real estate upon which an open
dump is located and failed to correct and control any nuisance conditions and
eliminate any threat to human health or the environment.
6.
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 forty (40) days of the
Effective Date, Respondents shall remove all waste tires from the Site and
dispose of them at a permitted solid waste management facility.
4.
Within forty five (45) days of the
Effective Date, Respondents shall submit written documentation that the waste
tires have been removed from the Site and disposed of at a permitted solid
waste management facility.
5.
Respondents shall ensure that all
work conducted to satisfy Order paragraph No. 3 above is done in
compliance with all applicable federal, state, and local laws and regulations.
6.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Idelia Walker-Glover, 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 |
7.
Pursuant to IC 13-30-4-1, Respondents
are assessed and agree to pay a civil penalty of Seven Thousand Dollars
($7,000.00). Respondents are jointly and severally liable for all civil penalty
assessments, including stipulated penalties. Said penalty amount shall be due
and payable to the Environmental Management Special Fund in twenty four monthly
installments. Three Hundred and Seven Dollars ($307.00) shall be due within
thirty (30) days of the Effective Date of this Agreed Order. The remaining Six
Thousand Six Hundred Ninety Three Dollars ($6,693.00) shall be due in twenty
three (23) consecutive monthly payments of Two Hundred Ninety One Dollars
($291.00) to begin sixty (60) days from the Effective Date of this Agreed
Order.
8.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondents shall
pay stipulated penalties in the following amounts:
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Paragraph |
Stipulated
Penalty |
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Order
paragraph 3 |
$250 per day |
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Order
paragraph 4 |
$100 per day |
9.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondents receives 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. Respondents are jointly and severally liable for all stipulated
penalty assessments.
10.
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:
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Indiana
Department of Environmental Management |
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Account
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
11.
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 10, above.
12.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
13.
This Agreed Order shall jointly and severally
apply to and be binding upon Respondents and all successors and assigns.
Respondents shall provide a copy of this Agreed Order, if in force, to any
subsequent owners, successors, or assigns before ownership rights are
transferred.
14.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’ status or responsibilities under this
Agreed Order.
15.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of 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.
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 the
obligation to comply with the requirements of any applicable permits or any
applicable Federal or State laws or regulations.
18.
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.
19.
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 violations
specified in the NOV.
20.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the U.S. Environmental
Protection Agency (U.S. 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 the U.S. EPA or any other agency or entity.
21.
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 |
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By: _________________________ |
By:
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Linda L.
McClure, Chief |
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Land
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 RESPONDENTS: |
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By: ________________________ |
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Printed: ______________________ |
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Title: ______________________ |
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Date:
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APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For the Commissioner: |
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Signed on January 10, 2020 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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