STATE OF
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BEFORE THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL
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COMMISSIONER
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OF ENVIRONMENTAL
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Complainant, |
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Case No. 2005-15202-H |
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B&N AUTO PARTS, INC., |
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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 B&N Auto Parts, Inc.
("Respondent"), which owns and operates the facility located at
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:
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Neal Richardson, President |
William Richardson, Registered Agent for |
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B&N Auto Parts, Inc. |
B&N Auto Parts, Inc. |
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5.
Respondent owns and operates an auto salvage yard and
processes scrap metal. Respondent
processes about forty (40) vehicles each month.
At the time of the inspection, approximately one thousand (1000)
vehicles were on-site.
6.
An inspection on September 15, 2005 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 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 automotive fluids, oil, and fuel, solid wastes, to be open dumped at
the Site. Automotive fluids, oil, and
fuel were open dumped in the following areas:
(i)
Two (2) automotive fluids removal areas; and
(ii)
The area behind the main building.
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 automotive fluids, oil,
and fuel in the following areas:
(i)
Two (2) automotive fluids removal areas; and
(ii)
The area behind the main building.
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
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
automotive fluids, 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 automotive fluids, oil, and fuel to be
released into the environment in the following areas:
(i)
Two (2) automotive fluids removal areas; and
(ii)
The area behind the main building.
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.
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.
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 thirty (30) days of the Effective Date of this Agreed
Order, Respondent shall comply with IC 13-30-2-1(3), (4) and (5). Specifically, Respondent shall clean up the
releases in the following areas by excavating the soil six inches beyond
visible contamination:
(1)
Two (2) automotive fluids removal areas; and
(2)
The area behind the main building.
3.
Within forty-five (45) days of the Effective Date of this
Agreed Order, Respondent shall submit to IDEM documentation that releases in
the above areas have been cleaned up.
4.
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 fluid removal or crushing activities
and immediately cease allowing the release of contaminants into the
environment.
5.
Within thirty (30) days of the Effective Date of this Agreed
Order, Respondent shall comply with 327 IAC 15-2-5(a) and submit an NOI letter,
which complies with all of the requirements of 327 IAC 15-3 and 327 IAC 15-6-5,
to IDEM.
6.
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.
7.
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.
8.
Within thirty (30) days after laboratory analyses conducted
pursuant to Order paragraph 7 have been completed, Respondent shall submit
sampling data results to IDEM for review.
Respondent shall also, 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 9.
9.
Within one hundred and eighty (180) days of the Effective
Date of this Agreed Order, 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.
10.
Within ten (10) days of notice of IDEM’s approval of the
Storm Water Pollution Prevention Plan, Respondent shall implement the plan as
approved.
11.
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.
12.
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.
13.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
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Brenda Lepter |
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Indiana Department of Environmental Management |
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Office of Enforcement Mail Code 60-02 |
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14.
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 |
Penalty |
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Failure to comply with Order paragraph 2 |
$500 week late |
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Failure to comply with Order paragraph 3 |
$500 week late |
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Failure to comply with Order paragraph 5 |
$500 week late |
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Failure to comply with Order paragraph 6 |
$500 week late |
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Failure to comply with Order paragraph 7 |
$500 week late |
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Failure to comply with Order paragraph 8 |
$500 week late |
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Failure to comply with Order paragraph 9 |
$500 week late |
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Failure to comply with Order paragraph 10 |
$500 week late |
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Failure to comply with Order paragraph 11 |
$500 week late |
15.
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.
16.
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:
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Indiana Department of Environmental Management |
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Cashier’s Office Mail Code 50-10C |
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17.
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.
18.
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.
19.
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.
20.
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.
21.
This Agreed Order shall remain in effect until IDEM issues a
Resolution of Case letter to Respondent.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
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By:
__________________________ |
By:
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Nancy L. Johnston, Chief |
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Office of Enforcement |
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Printed:
__________________ |
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Title:
_ ___________________ |
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Date:
________________________ |
Date:
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COUNSEL
FOR COMPLAINANT: |
COUNSEL
FOR RESPONDENT: |
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Department
of Environmental Management |
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By:
______________ __________ |
By:
__________________________ |
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Office of Legal Counsel |
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Date:
_______________________ |
Date:
________________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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For The Commissioner: |
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Signed on April 20, 2006 |
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Matthew T. Klein |
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Assistant Commissioner |
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of Compliance and
Enforcement |
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