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STATE OF |
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BEFORE THE
INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. CHUCK FORNEY, 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.
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 Chuck Forney, d.b.a. Bloomington
Auto Parts, ("Respondent"), who owns and operates a facility located
at 7650 North SR 37 in
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, IDEM issued a Notice
of Violation via Certified Mail to:
Chuck Forney, d.b.a. Bloomington Auto Parts
7650 North SR 37
5.
Respondent owns and operates an auto salvage
yard and processes scrap metal.
Respondent processes about one hundred (100) vehicles each month. At the time of the inspection, Respondent was
storing over 1,000 waste tires on-site.
6.
An inspection on
a.
Pursuant to 329 IAC
b.
Pursuant to 329 IAC
1)
At the northern portion of the Site; and
2)
At the garage and outside parts areas on the
western side of the Site.
c.
Pursuant to 329 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. Respondent stored at least 1,000 waste tires
outside 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.
d.
Pursuant to IC 13-30-2-1(3), no person shall deposit
any contaminant upon the land in a place or 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. Respondent deposited waste
tires on the northeast portion of the Site and deposited dissembled vehicle
parts (including batteries), household wastes, construction debris, automotive
fluids, oil, and fuel in the following areas:
1)
At the northern portion of the Site; and
2)
At the garage and outside parts areas on the
western side of the Site.
e.
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. Respondent caused and/or allowed
dissembled vehicle parts (including batteries), household wastes, construction
debris, automotive fluids, oil, fuel, and waste tires, contaminants or solid
wastes, to be deposited at the Site in a manner unacceptable to the solid waste
management board.
f.
Pursuant to IC 13-30-2-1(5), no person shall
dump or cause or allow the open dumping of garbage or any other solid waste in
violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
Respondent caused and/or allowed dissembled vehicle parts (including
batteries), household wastes, construction debris, automotive fluids, oil, and fuel, and
waste tires, solid wastes, to be open dumped at the Site.
g.
Pursuant to IC 13-30-2-1(1), no person shall
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 violation of 329 IAC 10-4-2 and 329 IAC
10-4-3. Respondent allowed dissembled
vehicle parts (including batteries), household wastes, construction debris,
automotive fluids, oil, fuel, and waste tires to be released into the
environment in the following areas:
1)
The northeast portion of the Site;
2)
The northern portion of the Site; and
3)
At the garage and outside parts areas on the
western side of the Site.
h.
Pursuant to 327 IAC 15, a person who has a point
source discharge of storm water associated with industrial activity and meets
the general and applicability
requirements of 327 IAC 15-2-2(a)(1), 15-2-3, and 15-6-2, must comply with,
among other things, the requirements of 327 IAC 15-2-5, 15-6-5, 15-6-7,
15-6-7.3, and 15-6-7.5. Point source
discharges of storm water associated with industrial activity have occurred at
the Site, and Respondent’s industrial activity meets the general and
applicability requirements of 327 IAC 15-2-2(a)(1), 15-2-3, and 15-6-2, but
Respondent had not complied with the requirements of 327 IAC 15-2-5, 15-6-5,
15-6-7, 15-6-7.3, and 15-6-7.5.
i.
Pursuant to 327 IAC
j.
Pursuant to 327 IAC 15-6-2(a)(5)(E), the
requirements of this rule apply to all facilities involved in the recycling of
materials, including metal scrap yards, battery reclaimers,
salvage yards, and automobile junkyards, including those classified under the
following SIC codes:
(i)
5015 (motor vehicle parts, used) and
(ii)
5093 (scrap and waste materials).
Respondent failed
to comply with the requirements of 327 IAC 15-6, including, but not limited to,
the following:
(1)
Failure to submit additional information with
the NOI letter as required by 327 IAC
(2)
Failure to develop, implement, update, and
maintain a Storm Water Pollution Prevention Plan as required by 327 IAC
(3)
Failure to monitor as required by 327 IAC
15-6-7.3.
(4)
Failure to submit an annual report to the
commissioner as required by 327 IAC 15-6-7.5.
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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.
Within one hundred and eighty (180) days of the
Effective Date of this Agreed Order, Respondent shall comply with IC
13-30-2-1(3). Specifically, Respondent
shall remove all tires from the Site and dispose of them at a permitted solid
waste management facility. Respondent
shall submit progress reports, including manifests, to IDEM at sixty (60) days
and one hundred and twenty (120) days of the Effective Date of this Agreed
Order.
3.
Within two hundred and ten (210) days of the
Effective Date of this Agreed Order, Respondent shall submit written
documentation that the tires removed from the Site have been taken to a
permitted solid waste management facility.
4.
Respondent shall ensure that all work conducted
to satisfy the requirements of Order paragraph 2 above is done in compliance
with all applicable federal, state, and local laws and regulations.
5.
Within thirty (30) days of the Effective Date of
this Agreed Order, Respondent shall comply with IC 13-30-2-1(3), (4) and (5)
according to the following timeframes.
Specifically, Respondent shall clean up the open dumping and/or releases
in the following areas by removing all dissembled vehicle parts (including
batteries), household wastes, construction debris, automotive fluids, oil, and
fuel, and by excavating the soil six inches beyond visible contamination:
a.)
At the garage and outside parts areas on the
western side of the Site where petroleum stained soils were observed within two
hundred and ten (210) days of the Effective Date of this Agreed Order; and
b.)
At the area on the northern side of the Site
where open dumping was observed within one hundred and eighty (180) days of the
Effective Date of this Agreed Order.
6.
Within forty-five (45) days of completion of the
cleanup required by Orders 5a. & b. above, Effective Date of this Agreed
Order, Respondent shall submit to IDEM documentation that the releases and/or
open dumping in the above areas have been cleaned up.
7.
Upon the Effective Date of this Agreed Order,
Respondent shall comply with IC 13-30-2-1(1).
Specifically, Respondent shall take immediate steps to capture any
potential release of fluids during auto salvage activities and immediately
cease allowing the release of contaminants into the environment.
8.
Within thirty (30) days of the Effective Date of
this Agreed Order, Respondent shall comply with 327 IAC
9.
In the event IDEM determines that the NOI letter
submitted by Respondent is deficient or otherwise unacceptable, Respondent
shall revise and resubmit the NOI to IDEM in accordance with IDEM’s notice.
10.
Within ninety (90) days of the Effective Date of
this Agreed Order, Respondent shall conduct monitoring as required by 327 IAC
15-6-7.3.
11.
Within thirty (30) days after laboratory
analyses conducted pursuant to Order paragraph 10 have been completed,
Respondent shall submit sampling data results to IDEM for review. Respondent shall also, in accordance with 327
IAC
12.
Within one hundred and eighty (180) days of the Effective
Date of this Agreed Order, Respondent shall comply with 327 IAC
13.
Within ten (10) days of notice of IDEM’s approval of the Storm Water Pollution Prevention
Plan, Respondent shall implement the plan as approved.
14.
Within three hundred and ninety-five (395) days
of the Effective Date of this Agreed Order, Respondent shall submit an Annual
Report in accordance with 327 IAC 15-6-7.5.
15.
All submittals required by this Agreed Order,
unless notified otherwise in writing, shall be sent to:
Brenda Lepter, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
P. O. Box 6015
16.
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:
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Violation Failure to comply with Order paragraph
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Penalty $1000 per week |
17.
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 Respondent’s violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
18.
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
IDEM
P. O. Box 7060
19.
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.
20.
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.
21.
Notwithstanding any other provision of this
Agreed Order, the Complainant reserves, and this Agreed Order is without
prejudice to, the right to institute proceedings in this action or in a new
action for injunctive relief, costs, civil penalty and/or remediation of
environmental contamination that is either discovered after the entry into the
Agreed Order or that has not been adequately remedied despite compliance by
Respondent with the terms of this Agreed Order.
22.
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.
23.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Nancy L. Johnston, Chief |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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Office of Legal Counsel |
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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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For The Commissioner: |
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Signed on |
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Matthew T. Klein |
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Assistant Commissioner |
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for Compliance and Enforcement |
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