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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
Complainant and 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. Pursuant to IC
13-30-3-3, entry into the terms of this Agreed Order does not constitute an
admission of any violation contained herein.
Respondent's entry into this Agreed Order shall not constitute a waiver
of any defense, legal or equitable, which Respondent may have in any future
administrative or judicial proceeding, except a proceeding to enforce this
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
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.
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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Chuck
Forney, d.b.a. |
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7650
North SR 37 |
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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 one thousand (1,000) waste tires
on-site.
6. Respondent
received a Notice of Violation in September, 2005, for many of the same
violations addressed in this case.
Respondent signed an Agreed Order agreeing, in part, to correct the
violations, including, but not limited to, removing tires from the site and
implementing a storm water program following the requirements of 327 IAC 15.
7. During
an investigation, including an inspection on August 28, 2007 and a record
review on October 7 & 10, 2007, 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.
As noted during the investigation, Respondent caused and/or allowed waste
tires, a solid waste, to be disposed at the Site in a manner which creates a
threat to human health or the environment.
Respondent submitted a Waste Tire Removal Plan to IDEM on March 24, 2008. The plan was approved by IDEM via a telephone
call to August Mack on April 28, 2008.
According to the plan, approximately 500 waste tires will be removed
from the Site per quarter until all waste tires are removed and properly
disposed of.
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.
As noted during the investigation, Respondent caused and/or allowed waste
tires, a solid waste, to be open dumped at the Site.
c. Pursuant
to 329 IAC 15-3-2, the owner or operator 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.
As noted during the investigation, Respondent stored at least one thousand
waste tires outside 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 contaminants 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.
As noted during the investigation, Respondent deposited waste tires at the Site
in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
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.
As noted during the investigation, Respondent caused and/or allowed waste
tires, a solid waste, to be deposited at the Site in a method 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.
As noted during the investigation, Respondent caused and/or allowed waste
tires, a solid waste, to be open dumped at the Site in violation of 329 IAC
10-4-2 and 329 IAC 10-4-3.
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.
As
noted during the investigation, Respondent allowed waste tires into the
environment in many areas throughout the facility in violation of 329 IAC
10-4-2 and 329 IAC 10-4-3.
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 15-6-5 and 15-6-7.
As noted during the investigation, 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 15-6-5 and 15-6-7.
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).
As
noted during the investigation, Respondent failed to comply with the
requirements of 327 IAC 15-6, including, but not limited to, the following:
(a) Failure
to submit additional information with the NOI letter as required by 327 IAC
15-6-5, and
(b) Failure
to implement, update, and maintain a Storm Water Pollution Prevention Plan
("SWPPP") as required by 327 IAC 15-6-7.
Respondent
submitted an SWPPP checklist on December 5, 2006, submitted an annual report on
June 25, 2007, and sampled on June 5, 2007.
However, the investigation revealed that the sampling point was not
representative of the discharge from the on-site industrial activities. Additionally, all aspects of the SWPPP were
not being conducted.
j. Pursuant
to IC 13-20-17.7-5(d), a motor vehicle recycler or any other person that
removes mercury switches in accordance with this section shall maintain records
that document the number of: (1) end of
life vehicles the person processed for recycling; (2) end of life vehicles the
person processed that contained mercury switches; and (3) mercury switches the
person collected. A person that
maintains records under this section shall retain the records for at least
three (3) years.
As noted during the investigation, Respondent failed to maintain records of
mercury switch removal.
8.
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 Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Within ten (10)
days of the Effective Date, Respondent shall implement the Waste Tire Removal
Plan approved by IDEM on April 28, 2008.
3.
Upon the
Effective Date, Respondent shall submit a written report to IDEM, on an at
least quarterly basis, documenting the number of tires removed from the Site
and that the tires removed 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
Nos. 2 & 3 above is done in compliance with all applicable federal, state,
and local laws and regulations.
5.
Within thirty
(30) days of the Effective Date, Respondent shall submit a revised NOI letter
to IDEM that complies with all applicable requirements of 327 IAC 15-3 and 327
IAC 15-6-5, including, but not limited to, the identification of a sampling
location that will be representative of discharge from the on-site industrial
activities.
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. Respondent
shall continue to conduct monitoring as required by 327 IAC 15-6-7.3. The next point sampled shall be
representative of discharge from the on-site industrial activities.
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 SWPPP. Respondent shall
modify its SWPPP accordingly based on the results of the new sampling event and
submit a copy of the modified plan to IDEM.
9. Upon
the Effective Date, Respondent shall comply with 327 IAC 15-6-7. Specifically, Respondent shall, until such
time as the plan is modified based on the results of the new sampling event, implement
all aspects of the current SWPPP, including, but not limited to, labeling of
drums, maintaining records of quarterly inspections, maintaining records of
annual training, and maintaining a copy of the SWPPP at the Site. Once the SWPPP is modified based on the
results of the new sampling event, Respondent shall implement the modified
SWPPP.
10. Within
forty-five (45) days of the Effective Date, Respondent shall provide records,
including, but not limited to, records of quarterly inspections and annual
training, to IDEM demonstrating compliance with 327 IAC 15-6-7.
11. Respondent
shall continue to submit an Annual Report in accordance with 327 IAC 15-6-7.5.
12. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Brenda
Lepter, Enforcement Case Manager |
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Office
of Enforcement – Mail Code 60-02 |
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Indiana
Department of Environmental Management |
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13. Respondent
is assessed a civil penalty of Eight Thousand Two Hundred Dollars ($8,200). Said penalty amount shall be due and payable
to the Environmental Management Special Fund in four (4) quarterly installments
of $2,050 each. The first installment
shall be due on or before September 15, 2008; the second installment shall be
due on or before December 31, 2008; the third installment shall be due on or
before March 31, 2009; and the final payment shall be due on or before June 30,
2009. If the civil penalty is not paid
according to the timeframes found in this Agreed Order, Respondent shall pay
interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until
the civil penalty is paid in full.
14. In the
event the terms and conditions of the following paragraphs are violated, Complainant
may assess and Respondent shall pay a stipulated penalty in the following amount:
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Failure to comply with Order Paragraph 2 |
$500 per week |
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Failure to comply with Order Paragraph 5 |
$250 per week |
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Failure to comply with Order Paragraph 6 |
$250 per week |
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Failure to comply with Order Paragraph 8 |
$250 per week |
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Failure to comply with Order Paragraph 10 |
$250 per week |
15. Stipulated
penalties shall be due and payable within thirty (30) days after Respondent receives
written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of stipulated
penalties shall not preclude Complainant from seeking any additional relief
against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, 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. Civil
and 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
– Mail Code 50-10C |
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17. This
Agreed Order shall apply to and be binding upon Respondent and his successors
and assigns. Respondent’s signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership, corporate, or partnership
status of Respondent shall in any way alter his status or responsibilities
under this Agreed Order.
18. In the
event that any terms of this 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 this Agreed Order did not contain the invalid terms.
19. 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.
20. 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 Respondent pursuant to this Agreed
Order, shall not in any way relieve Respondent of his obligation to comply with
the requirements of his applicable permit or any applicable Federal or State
law or regulation.
21. Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s 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
Respondent may incur as a result of Respondent’s efforts to comply with this
Agreed Order.
22. 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.
23. 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 Respondent may incur
as a result of such communications with the EPA or any other agency or entity.
24. 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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By: |
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Nancy L. Johnston, Chief |
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Hazardous Waste Section |
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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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For the Department of Environmental Management |
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By: |
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By: |
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Deputy Attorney General |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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, 2008. |
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For the Commissioner: |
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Signed on August 29, 2008 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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