STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

WILLIAM MARSHALL d/b/a J&B RECYCLING,
and

MARILYN MARSHALL d/b/a J&B RECYCLING

 

Respondent.

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Case No. 2005-14531-S

 

 

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.

 

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 William and Marilyn Marshall, d/b/a J & B Recycling, (“Respondents”) who own and/or operate a waste tire processing facility with Registration No. 083-00424, located at 3865 East 775 South in Hillsdale, Vermillion 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 on April 3, 2006, via Certified Mail to:

 

William Marshall d/b/a J & B Recycling      Marilyn Marshall d/b/a J & B Recycling

3865 East 775 South                                   3865 East 775 South

Hillsdale, Indiana 47854                               Hillsdale, Indiana 47854

 

5.         During an investigation, including inspections on February 20, July 1, August 31, September 9, December 3, and December 16, 2004 and May 10, 2005, conducted by a representative of IDEM, the following violations were found:

 

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.

 

Respondents caused and/or allowed waste tires, a solid waste, to be stored, contained, processed or disposed at the Site in a manner which creates a threat to human health or the environment, in violation of 329 IAC 10-4-2.

 

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.

 

Respondents caused and/or allowed waste tires, a solid waste, to be open dumped at the Site, in violation of 329 IAC 10-4-3.

 

c.         Pursuant to 329 IAC 15-3-2(1), the owner or operator of a waste tire storage site shall posses a valid certificate of registration issued under this rule.

 

Respondents do not possess a waste tire storage certificate of registration, in violation of 329 IAC 15-3-2(1).

 

d.         Pursuant to 329 IAC 15-3-17(l), the owner or operator of a waste tire processing operation shall prevent water from accumulating in waste tires by doing the following:

(1)               Waste tires must be drained:

(A)              on the day of receipt; and

(B)              as necessary thereafter to prevent accumulation of water in the waste tires.

(2)               Within seven (7) days after receipt, whole waste tires must be altered, covered, or otherwise prevented from accumulating water.

(3)               Waste tires must not be stored in areas of standing water.

 

Respondents

(1)       did not drain waste tires on the day of receipt and/or as necessary thereafter to prevent accumulation of water in the waste tires,

(2)       did not, within seven (7) days after receipt, alter, cover, or otherwise prevent water from accumulating in whole waste tires, and

(3)       stored waste tires in areas of standing water,

 

in violation of 329 IAC 15-3-17(l).

 

e.         Pursuant to IC 13-20-13-2, a person may not create or maintain a waste tire storage site unless the person holds a valid certificate of registration issued under section 3 of this chapter.

 

Respondents do not hold a valid waste tire storage certificate of registration, in violation of IC 13-20-13-2.

 

f.          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.

 

Respondents caused and/or allowed waste tires 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).

 

g.         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.

 

Respondents caused and/or allowed waste tires, which are 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).

 

h.         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.

 

Respondents caused and/or allowed waste tires, which are solid waste, to be open dumped at the Site, in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3, thus violating IC 13-30-2-1(5).

 

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 329 IAC 10-4-2, 329 IAC 10-4-3, 329 IAC 15-3-2(1), 329 IAC 15-3-17(l), IC 13-20-13-2, IC 13-30-2-1 (3), IC 13-30-2-1(4), and IC 13-30-2-1(5).

 

3.         Respondents shall not cause and/or allow any solid waste, including, but not limited to, waste tires to be brought to the Site for storage, processing, and/or disposal.

 

4.         Respondents agree not to personally engage in any activities that require a waste tire storage, processing, or transporting license.

 

5.         Respondents agree to forfeit all permits, licenses, registrations, certifications, or any other approvals for waste tire storage, processing, or transporting.

 

6.         All work performed to bring the Site into compliance with this Agreed Order shall be done in compliance with all applicable Federal, State and Local laws, rules, regulations, ordinances, and/or permits.

 

7.         Respondents are assessed a civil penalty of Seven Thousand Dollars ($7,000) for the violations set forth in the above Findings of Fact, but the civil penalty amount has been reduced to $0.  This penalty reflects a significant reduction based upon evidence submitted by the Respondents which adequately demonstrated an inability to pay.

 

8.         This Agreed Order shall jointly and severally apply to and be binding upon Respondents, their successors and assigns.  Respondents’ signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the parties they represent.  No change in ownership, corporate, or partnership status of Respondents shall in any way alter their status or responsibilities under this Agreed Order.

 

9.                  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.

 

10.             Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.  Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

11.             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 their obligation to comply with the requirements of their applicable permits or any applicable Federal or State law or regulation.

 

12.       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.

 

13.       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 specified in the NOV.

 

14.       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 Respondents may incur as a result of such communications with the EPA or any other agency or entity.

 

15.       This Agreed Order shall remain in effect until Respondents have complied with all terms and conditions of this Agreed Order.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

William Marshall and Marilyn Marshall

 

 

d/b/a J & B Recycling

By:

 

 

By:

 

 

Janet Arnold, Chief

 

Printed:

 

 

Solid Waste – UST Section

 

Title:

 

 

Office of Enforcement

 

 

 

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

 

, 2007.

 

 

For The Commissioner:

 

 

 

Signed on April 10, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement