STATE OF INDIANA

)

 

BEFORE THE INDIANA DEPARTMENT

 

)

SS:

OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

)

 

 

 

 

 

 

COMMISSIONER OF THE DEPARTMENT

)

OF ENVIRONMENTAL MANAGEMENT,

)

 

 

)

 

Complainant,

)

 

 

)

 

v.

)

Case No. 2004-13784-S

 

)

LUCY JACKSON, A.K.A. LUCY CHILDRESS
AND LUCY POVEY,

)
)

 

)

 

Respondent.

)

 

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.

 

I.  FINDINGS OF FACT

 

1.                  Complainant is the Commissioner (Complainant) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

 

2.                  Respondent is Lucy Jackson, a.k.a. Lucy Childress and Lucy Povey (Respondent), who owns the property where an open dump is located at 6038 East Old Pekin Road, in Pekin, Washington County, Indiana (Site).

 

3.                  The Indiana Department of Environmental Management (IDEM) has jurisdiction over the parties and the subject matter of this action.

 

4.                  Pursuant to IC 13-30-3-3, on August 5, 2004 IDEM issued a Notice of Violation via Certified Mail to:

Ms. Lucy Jackson, a.k.a. Lucy Childress and Lucy Povey
6038 East Old Pekin Road
Pekin, Indiana 47165

 

5.                  Inspections on October 27, 2003 and November 24, 2003, were conducted at the Site by a representative of IDEM’s Office of Land Quality (OLQ).  The following violations were in existence or observed at the time of these inspections:

 

A.                 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.

The Respondent caused and/or allowed appliances, metal, tires, and vehicle parts, all solid waste, to be stored, and/or disposed at the Site in a manner which creates a threat to human health or the environment.

 

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.

The Respondent caused and/or allowed appliances, metal, tires, and vehicle parts, all solid waste, to be open dumped at the Site.

 

C.                Pursuant to IC 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 (1) of the boards.

The Respondent caused and/or allowed appliances, metal, tires, and vehicle parts, all contaminants, to be deposited at the Site in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3, thus violating IC 13-30-2-1(3).

 

D.                Pursuant to IC 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, or another method acceptable to the solid waste management board.

The Respondent caused and/or allowed appliances, metal, tires, and vehicle parts, all contaminants and/or solid waste, to be deposited at the Site in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3, thus violating IC 13-30-2-1(4).

 

E.                 Pursuant to IC 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 solid waste management board.

The Respondent caused and/or allowed appliances, metal, tires and vehicle parts, all solid waste, to be open dumped at the Site 329 IAC 10-4-2 and 329 IAC 10-4-3, thus violating IC 13-30-2-1(5).

 

6.                  An inspection on November 8, 2004 by representatives of IDEM’s Office of Land Quality (OLQ) observed that the appliances and solid waste have been removed.

 

7.                  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.                  Respondent shall not cause and/or allow the storage or deposit of solid waste at the site.

 

3.                  In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation

Penalty

Failure to comply with Order paragraph No. 2

$ 500 per day/per violation

 

4.                  Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order.  In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondents violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

5.                  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:

Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060

 

6.                  This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent.  No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

7.                  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.

 

8.                  The 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.

 

9.                  This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Lucy Jackson a.k.a. Lucy Childress and
Lucy Povey

 

 

 

By:

 

 

By:

 

 

Paul Higginbotham

 

Printed:

 

 

Chief, Solid Waste/UST Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Nicole Sipe

 

 

 

 

Office of Legal Counsel

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

For The Commissioner:

 

 

 

Signed on April 15, 2005

 

Matthew T. Klein

 

Assistant Commissioner for Compliance

 

and Enforcement