STATE OF INDIANA COUNTY OF MARION	) ) )	SS:	BEFORE THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Complainant, v. GW PIERCE AUTO PARTS, INC., Respondent.				) ) ) ) ) ) ) ) ) )	Case No. 2005-14444-H

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 GW Pierce Auto Parts, Inc. ("Respondent"), which owns and operates the company located at 22275 US 31 in Cicero, Hamilton 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 March 18, 2005, IDEM issued a Notice of Violation via Certified Mail to:

Mr. Paul E. Pierce, President and Registered Agent
GW Pierce Auto Parts, Inc.
RR1
Lewisville, Indiana 47352

5. Respondent owns and operates an auto salvage yard, processes scrap metal, and sells used cars.

6. An inspection on May 12, 2004 was 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 this inspection:

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. Respondent caused and/or allowed waste tires, automotive fluids, oil, and fuel, to be 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. Respondent caused and/or allowed waste tires, automotive fluids, oil, and fuel, solid wastes, to be open dumped at the Site. Waste tires were observed in the southwest corner of the site. Automotive fluids, oil, and fuel, were open dumped in the following areas:

1) In front of the disassembly garage.

2) The vehicle crushing areas in the north and south lots.

3) The spoil pile.

c. 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 in the southwest corner of the site, and deposited automotive fluids, oil, and fuel in the following areas:

1) In front of the disassembly garage.

2) The vehicle crushing areas in the north and south lots.

3) The spoil pile.

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 solid waste management board. Respondent caused and/or allowed waste tires, automotive fluids, oil, and fuel, contaminants or solid waste, to be deposited at the Site in a manner unacceptable to the solid waste management board.

e. 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 waste tires, automotive fluid, oil, and fuel, to be open dumped at the Site.

f. 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 waste automotive fluids, oil, and fuel to be released into the environment in the following areas:

1) In front of the disassembly garage.

2) The vehicle crushing areas in the north and south lots.

3) The spoil pile.

g. 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.

h. Pursuant to 327 IAC 15-2-5, any person responsible for the operation of a facility from which a point source discharge of pollutants and/or storm water occurs must submit a Notice of Intent (NOI) letter to the commissioner that complies with this section, 327 IAC 15-3, and the additional requirements in any applicable general permit rule. Respondent failed to submit an NOI letter to the commissioner. On March 16, 2005, Respondent submitted an NOI letter to the commissioner.

i. 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 15-6-5.

(2) Failure to develop, implement, update, and maintain a Storm Water Pollution Prevention Plan as required by 327 IAC 15-6-7.

(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.

j. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and above ground tanks with the words “Used Oil.” Respondent did not label used oil containers with the words “Used Oil.”

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. Within one hundred eighty (180) days of the Effective Date of this Agreed Order, Respondent shall comply with IC 13-30-2-1(3). Specifically, Respondent shall have removed all tires from the Site and disposed of them at a permitted solid waste management facility.

3. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall provide IDEM with a progress report on the tire removal. Respondent shall submit to IDEM a progress report every thirty days thereafter, for a period of six months, or until the tires are completely removed, whichever is sooner.

4. Upon the Effective Date of this Agreed Order, Respondent shall ensure that all tires removed from the Site have been taken to a permitted solid waste management facility.

5. 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.

6. 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 crushing activities and immediately cease allowing the release of contaminants into the environment.

7. Within ninety (90) days of the Effective Date of this Agreed Order, Respondent shall submit to IDEM a site assessment plan. The purpose of the site assessment plan shall be to conduct sampling and analysis in order to assess potential soil and ground water contamination from the areas of concern described in Findings of Fact 6a, 6b, and 6e, and if necessary, the nature and extent of contamination. The site assessment plan shall be based upon the principles outlined within IDEM’s Risk Integrated System of Closure (RISC) Technical Resource Guidance Document (“TRGD”), dated February 15, 2001, which can be accessed at http://www/IN/gov/idem/land/risc. In addition, the site assessment plan shall:

a. Describe and evaluate all areas of potential contamination in and around the areas of concern.

b. Specify the method of determining the number and location of samples to be taken to yield a representative assessment of the area of concern. This method shall be:

1. random sampling, pursuant to Section 3.4 of Chapter 3 of the TRGD; or

2. directed sampling, pursuant to Section 3.4 of Chapter 3 of the TRGD; and

3. developed to provide locations and methods of any ground water samples pursuant to Section 3.4 of Chapter 3 of the TRGD.

c. Specify how the soil samples will be obtained and handled in order to minimize loss of volatile constituents. Respondent may composite samples of non-volatiles (i.e., metals and semi-volatiles), but shall not composite samples of volatiles, pursuant to Section 3.4 of Chapter 3 of the TRGD.

d. Specify how the ground water samples will be obtained and describe the sampling procedures.

e. Clearly define all sampling and analytical protocols designed to identify hazardous waste or its constituents, pursuant to 40 CFR Part 261, including 40 CFR Part 261 Appendices I, II, III, and VIII. The site assessment plan shall include the method of sample collection, pursuant to “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846. This includes, but is not limited to, sample collection containers, preservatives, and holding times. Specify the analytical methods to be used and the method’s Estimated Quantitation Limits (EQLs).

f. Specify that chain-of-custody of the samples shall be maintained and Quality Assurance and Quality Control (“QA/QC”) procedures shall be followed, pursuant to Appendix 2 of the TRGD.

g. Include within the site assessment plan a supplemental contingent plan for determining the nature and extent of:

1. soil contamination, as specified in Chapter 4 of the TRGD, in the event that sampling and analysis indicates soil contamination to exist above default residential levels as specified in Table A, Appendix I, of the TRGD; and

2. ground water contamination in the event that sampling and analysis indicates hazardous waste or its constituents are detected in the ground water as specified in Chapter 4 of the TRGD.

h. Include within the site assessment plan time frames for its implementation.

i. Be approved by IDEM prior to its implementation.

8. Within fifteen (15) days of receiving notice from IDEM of approval of the site assessment plan, Respondent shall implement it as approved and in accordance with the time frames contained therein.

9. Within fifteen (15) days of obtaining the analytical results, Respondent shall submit said results, including chain-of-custody information, and QA/QC records, pursuant to Appendix 2 of the TRGD, to IDEM.

10. If soil or ground water contamination is identified, Respondent shall submit within sixty (60) days subsequent to the completion of the analyses, a remediation workplan to IDEM for the purpose of remediating all soil and /or ground water contamination. The remediation workplan shall:

a. In accordance with Chapter 6 of the TRGD, remediate each contaminated area to closure. Closure levels shall be one of the following:

1. default residential levels, pursuant to Table A, Appendix I, in the TRGD; or

2. commercial/industrial default values (if appropriate to the facility), pursuant to Table A, Appendix I, in the TRGD. Ground water shall meet residential default values at the property boundary or control; or

3. closure levels for soil can also be established using the non-default procedures presented in Chapter 7 of the RISC Technical Guide. The alternate cleanup level proposal must document that the constituents left in soil will not adversely impact any other environmental medium (ground water, surface water, or atmosphere) and that direct contact through dermal exposure, inhalation, or ingestion will not result in threats to human health or the environment; or

4. background levels for metals, pursuant to Section 1.6 of Chapter 1 of the TRGD, and/or the analytical method’s estimated quantitation limits (“EQLs”) for organics.

b. Include a soil and/or a ground water sampling and analysis plan to be performed after the cleanup has been performed which verifies that all contamination has been removed.

c. Include within the remediation workplan time frames for its implementation.

11. Within fifteen (15) days of approval by IDEM of the remediation workplan, Respondent shall implement the plan as approved and in accordance with the time frames contained therein.

12. Within thirty (30) days of completion of the remedial action conducted pursuant to the remediation workplan, Respondent shall submit to IDEM certification by an independent registered professional engineer that the remedial action has been completed as outlined in the approved remediation workplan.

13. In the event IDEM determines that the NOI letter submitted by Respondent on March 16, 2005, is deficient or otherwise unacceptable, Respondent shall revise and resubmit the NOI to IDEM in accordance with IDEM’s notice.

14. Within three hundred sixty-five (365) days of the submittal of the NOI letter to the Commissioner, and prior to implementation of the Storm Water Pollution Prevention Plan, Respondent shall conduct initial sampling. Respondent shall, in accordance with 327 IAC 15-6-7(b)(9), include the sampling data results in the Storm Water Pollution Prevention Plan required by Order paragraph 15.

15. Within three hundred sixty-five (365) days of the submittal of the NOI letter to the Commissioner, Respondent shall comply with 327 IAC 15-6-7. Specifically, Respondent shall develop and submit to IDEM for approval a Storm Water Pollution Prevention Plan.

16. Within ten (10) days of notice of IDEM’s approval of the Storm Water Pollution Prevention Plan, Respondent shall implement the plan as approved.

17. Within thirty (30) days of all subsequent sampling events performed pursuant to 327 IAC 15-6-7.3, Respondent shall submit sampling data results to IDEM for review.

18. In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM's notice. After three (3) submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

19. 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.

20. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit documentation to IDEM that all containers of used oil have been properly labeled.

21. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Ms. Aubrey N. Sherif,
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
Indianapolis, IN 46206-6015

22. 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 2	$500 per week
Failure to comply with Order paragraph 3	$500 per week
Failure to comply with Order paragraph 5	$500 per week
Failure to comply with Order paragraph 6	$500 per week
Failure to comply with Order paragraph 7	$500 per week
Failure to comply with Order paragraph 8	$500 per week
Failure to comply with Order paragraph 9	$500 per week
Failure to comply with Order paragraph 10	$500 per week
Failure to comply with Order paragraph 11	$500 per week
Failure to comply with Order paragraph 12	$500 per week
Failure to comply with Order paragraph 13	$500 per week
Failure to comply with Order paragraph 14	$500 per week
Failure to comply with Order paragraph 15	$500 per week
Failure to comply with Order paragraph 16	$500 per week
Failure to comply with Order paragraph 17	$500 per week
Failure to comply with Order paragraph 18	$500 per week
Failure to comply with Order paragraph 19	$500 per week
Failure to comply with Order paragraph 20	$500 per week

23. 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.

24. 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
100 N. Senate Avenue
Indianapolis, IN 46207-7060

25. 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.

26. 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.

27. 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.

28. 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.

29. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By:				By:
	Nancy L. Johnston, Chief			Printed:
	Office of Enforcement			Title:
Date:				Date:
COUNSEL FOR COMPLAINANT:				COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:				By:
	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 June 10, 2005
			Matthew T. Klein
			Assistant Commissioner for
			Compliance and Enforcement