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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. DEBRA L. BAILEY, Respondent. |
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AGREED
ORDER
The Complainant and the
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.
The 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, a department of the State of
2. Respondent
is Debra L. Bailey, who operated an unregistered waste tire storage facility
located at
3. The
4. Pursuant
to 329 IAC 15-2-2 “altered waste tire” is defined as follows:
“Altered
waste tire” means a waste tire that has been modified so that the tire cannot
hold water by:
(1) shredding;
(2) chopping;
(3) drilling
with holes and stacking to assure drainage; or
(4) slitting
longitudinally and stacking so the tires will not collect water.
5. Pursuant
to 329 IAC 15-2-8 “passenger tire equivalent” or “PTE” is defined as follows:
(a) “Passenger
tire equivalent” or “PTE” means one (1) tire weighing twenty-five (25) pounds
with a volume of:
(1) four
(4) cubic feet for whole waste tires; or
(2) one and
twenty-five hundredths (1.25) cubic feet for altered waste tires.
(b) If both
the weight and the volume of the waste tires are known, then the weight of the
tires must be used to determine the number of PTEs.
6. Pursuant
to 329 IAC 15-2-13 "used tire" is defined as follows:
“Used tire” means a tire
that meets all of the following criteria:
(1) The tire is suitable for use on a motor vehicle as follows:
(A) The tire has two thirty-seconds (2/32)
inch of remaining tread, or the tire wear bars are not exposed.
(B) The tire has no cuts, slashes, or exposed cord.
(2) The tire is stored in a rack, stack, or row.
(3) The
tire is stored out of the weather to prevent accumulation of water or
precipitation in the tires.
7. As of
August 22, 2003, the Site was being used as a waste tire storage facility,
storing waste tires and altered waste tires, without a valid certificate of
registration. At that time, there were
approximately 1,484,173.9 PTEs.
8. Pursuant
to Ind. Code § 13-20-13-13(a)(1), IDEM may proceed in court to compel a person
responsible for the improper storage of waste tires and altered waste tires to
undertake a removal or remedial action with respect to waste tires.
9. Pursuant
to Ind. Code § 13-20-13-13(a)(2), IDEM may seek an order to enter upon private
or public property to carry out a removal or remedial action with respect to
waste tires and altered waste tires if IDEM cannot identify or locate another
person responsible for carrying out the action, who is willing to carry out the
action and is capable of doing so or can be compelled to carry out the action
under the waste tire statutes.
10. Pursuant
to Ind. Code § 13-20-13-14, IDEM may proceed in court to recover its costs and
damages from a person who is responsible for the improper storage of waste
tires and altered waste tires and who fails, without sufficient cause, to
properly undertake a removal or remedial action.
11. Pursuant
to Ind. Code. § 13-20-14-7 and Ind. Code § 13-20-14-8, IDEM has authority to
compel compliance and to recover its costs and damages for the improper
disposal of waste tires and altered waste tires.
12. Respondent
violated several statutory and regulatory
requirements meant to protect public health and the environment.
(a) Pursuant
to 329 IAC 10-4-3, open dumping and open
dumps, as those terms are defined in Ind. Code § 13-11-2-146 and Ind. Code §
13-11-2-147, are prohibited. Respondent
open dumped solid waste, including waste tires and altered waste tires, at the
Site in violation of 329 IAC 10-4-3.
(b) 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 15-3-3, comply
with all applicable requirements of 329 IAC 15-3, and maintain financial
assurance as required by 329 IAC 15-5. Respondent
stored waste tires and altered waste tires without a valid certificate of
registration under 329 IAC 15-3-3, 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.
(c) Pursuant
to 329 IAC 15-3-5, the owner or operator of a waste tire processing operation
shall possess a valid certificate of registration issued under 329 IAC 15-3-6
and comply with all applicable requirements of 329 IAC 15-3. Respondent processed waste tires and altered
waste tires at the Site with a certificate of registration under 329 IAC
15-3-6; however, Respondent did not comply with all applicable
requirements of 329 IAC 15-3, including the requirement concerning waste tire
storage sites.
(d) Pursuant
to Ind. Code § 13-30-2-1(3), a person may not deposit any contaminants upon the
land in a place and manner that creates or would create a pollution hazard that
violates or would violate a rule adopted by one of the environmental
boards. Respondent deposited
contaminants, i.e., waste tires and altered waste tires, at the Site in
violation of 329 IAC 10-4-2 and 329 IAC 10-4-3, which are rules adopted by the
Solid Waste Management Board (“the Board”), thus violating Ind. Code §
13-30-2-1(3).
(e) Pursuant
to Ind. Code § 13-30-2-1(4), a person may not deposit or cause or allow the
deposit of any 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. Respondent
deposited solid waste in the form of waste tires and altered waste tires at the
Site in a method unacceptable to the Board in violation of 329 IAC 10-4-2 and
329 IAC 10-4-3, thus violating Ind. Code § 13-30-2-1(4).
(f) Pursuant
to Ind. Code § 13-30-2-1(5), a person may not dump, cause or allow the open
dumping of garbage or of any other solid waste in violation of rules adopted by
the Board. Respondent open dumped solid
waste in the form of waste tires and altered waste tires at the Site in
violation of the Board’s rules at 329 IAC 10-4-2 and 329 IAC 10-4-3, and,
therefore, is in violation of Ind. Code § 13-30-2-1(5).
(g) Pursuant
to 329 IAC 15-3-17(c)(1) and (2), a waste tire storage site or waste tire
processing operation may not pose a threat to human health or the environment
and may not create a nuisance. Respondent’s
operation of the Site threatened human health and the environment and was a
public nuisance, based on IDEM’s findings during its inspections.
13. On
November 14, 2003, IDEM filed a Verified Motion for Temporary Restraining Order
and Complaint for Preliminary and Permanent Injunction and for Civil Penalties
and Costs against Defendants Debra L. Bailey and Keri Schmitt, d/b/a Bailey’s
Recycling Group, and Louis and Eleanor Baker for violations at the Site. IDEM asked the Court to issue a TRO, which
would (1) restrain and enjoin the Defendants from any further violations of the
environmental laws and rules regarding waste or altered waste tires at the
Site; (2) require the Defendants to remove and properly dispose of all waste or
altered waste tires at the Site that were in violation of the storage
requirements; (3) allow IDEM to go onto the property to conduct the clean up, if
the Defendants fail to clean up the Site, and obtain the costs for the state
clean up; and (4) order civil penalties to be paid for the violations.
14. Beginning
in 2003, the Bakers obtained the services of Waste Management of Indiana, LLC
for excavation and removal work at the Site.
Waste Management of Indiana, LLC removed a total of 10,625.08 tons of
material from the Site.
15. In 2006,
the Bakers brought Alternate Two, LLC onto the Site to conduct removal of the
remaining waste tires. Alternate Two,
LLC has since purchased the Site from the Bakers and is currently working with
IDEM to return the Site to compliance.
16. The
Respondent waives issuance of a Notice of Violation and to the settlement
period of sixty (60) days as provided for by IC 13-30-3-3.
17. 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 the Complainant or his delegate, and has been received by the
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2. The
Respondent agrees from this day forward, never to own, operate, manage or
supervise any waste tire operation in the State of
3. In the
event that any terms of the 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 the Agreed Order did not contain the invalid terms.
4. 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 her obligation to comply with the requirements of her applicable
permit or any applicable Federal or State law or regulation.
5. 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.
6. 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.
7. 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.
8. This
Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of this Agreed Order.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
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By: |
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By: |
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Janet
Arnold, Section Chief |
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Office
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COUNSEL
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COUNSEL
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For
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By: |
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By: |
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Deputy
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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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2007. |
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For
the Commissioner: |
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Signed
on November 30, 2007 |
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Robert
B. Keene |
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Assistant
Commissioner |
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Office
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