STATE OF INDIANA

)

SS:

BEFORE THE INDIANA DEPARTMENT OF

 

)

 

 

COUNTY OF MARION

)

 

ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

)

 

OF ENVIRONMENTAL MANAGEMENT,

 

)

 

 

 

)

 

Complainant,

 

)

 

 

 

)

 

 

v.

 

)

Case #s  2014-22299-S

 

 

)

& 2014-22429-S

Leo Tire & Wheel, Inc.,

 

)

 

TIMOTHY & SHERRY MYERS,

 

)

 

Respondents.

 

)

 

 

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.  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.  Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents 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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.         Respondents are Leo Tire & Wheel, Inc. (“Respondent Leo Tire”), and Timothy and Sherry Myers (“Respondents Myers”).  Respondent Leo Tire operates a tire business that sells new and used tires located at 14518 Leo Road in Leo, Allen County, Indiana (the “Leo Site”). Respondents Myers own property located at 100 Washington Street in St. Joe, DeKalb County, Indiana (the “St. Joe Site”).  Respondents Myers also own the property located at 14518 Leo Road in Leo, Allen County, Indiana identified above.

 

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 (NOV) on July 31, 2014, via Certified Mail to:

 

Timothy Myers, President  &

Timothy & Sherry Myers

Registered Agent

100 Washington Street

Leo Tire & Wheel, Inc.

St. Joe, IN 46785

14518 Leo Road

 

Leo, IN 46765

 

 

 

Jack E. Morris, Counsel for Respondents

 

Benson, Pantello, Morris, James & Logan

 

3505 Lake Avenue

 

Fort Wayne, IN 46805

 

 

Count I

 

Case No. 2014-22299-S

 

1.         During an investigation including an inspection conducted on April 2, 2014, at the Leo Site, by representatives 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 inspection on April 2, 2014, Respondent Leo Tire caused and/or allowed solid waste, including, but not limited to waste tires to be stored and/or disposed at the Leo Site in a manner which creates a threat to human health or the environment.  Respondent Leo Tire stored several large piles of tires outside around the Leo Site.  Tires were not stacked, racked, or in rows; nor were they stored under cover.  Some exposed tires had accumulated water.

 

Leo Tire is a retail seller of tires and during its operations generates some waste tires and also generates used tires in sufficient condition for resale.  After the inspection of the Leo Site on April 2, 2014, and before the issuance of this Agreed Order, Leo Tire removed all of the tires that were stored outside around the Leo Tire Site.

 

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 inspection on April 2, 2014, Respondent Leo Tire caused and/or allowed waste tires to be open dumped at the Leo Site.

 

After the inspection of the Leo Site on April 2, 2014, and before the issuance of this Agreed Order, Leo Tire removed all of the tires that were stored outside around the Leo Tire 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 inspection on April 2, 2014, Respondent Leo Tire 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 at the Leo Site.

 

After the inspection of the Leo Site on April 2, 2014, and before the issuance of this Agreed Order, Leo Tire removed all of the tires that were stored outside around the Leo Tire Site.

 

d.         Pursuant to IC 13-20-13-1.5, a person that stores waste tires shall do so in a manner that does not pose a threat to human health or the environment; does not pose a fire hazard; and controls vectors that pose a threat to human health.

 

As noted during the inspection on April 2, 2014, Respondent Leo Tire stored waste tires in piles outside, uncovered and some of the tires accumulated water.

 

After the inspection of the Leo Site on April 2, 2014, and before the issuance of this Agreed Order, Leo Tire removed all of the tires that were stored outside around the Leo Tire Site.

 

e.         Pursuant to IC 13-20-13-2, a person may not create or maintain a waste tire storage site or waste tire processing operation unless the person has registered the waste tire storage site or waste tire processing operation under 13-20-13 or IC 13-7-23 (before its repeal); and holds a valid certificate of registration issued under section 3 of 13-20-13-3 or IC 13-7-23-7 (before its repeal).

 

As noted during the inspection on April 2, 2014, Respondent Leo Tire stored over one thousand (1,000) tires outside and cut tires in half for transporting efficiency.  Respondent Leo Tire is a retailer of tires.  Respondent Leo Tire is not registered as a waste tire storage site and therefore does not hold a valid certificate of registration.

 

After the inspection of the Leo Site on April 2, 2014, and before the issuance of this Agreed Order, Leo Tire removed all of the tires that were stored outside around the Leo Tire Site.

 

f.          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 inspection on April 2, 2014, Respondent Leo Tire deposited or caused and/or allowed the deposit of solid waste, including, but not limited to waste tires, at the Leo Site in a method which has not been determined by the solid waste management board to be acceptable.

 

After the inspection of the Leo Site on April 2, 2014, and before the issuance of this Agreed Order, Leo Tire removed all of the tires that were stored outside around the Leo Tire Site.

 

g.         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 inspection on April 2, 2014, Respondent Leo Tire dumped or caused and/or allowed the open dumping of waste tires at the Leo Site.

 

After the inspection of the Leo Site on April 2, 2014, and before the issuance of this Agreed Order, Leo Tire removed all of the tires that were stored outside around the Leo Tire Site.

 

2.            On June 24, 2015, a representative of IDEM conducted an inspection at the Leo Site and violations noted during the April 2, 2014 and November 21, 2014 had been corrected.

 

Count II

 

Case No. 2014-22429-S

 

1.         During an investigation including an inspection conducted on May 7, 2014, at the St. Joe Site, by representatives 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 inspection on May 7, 2014, Respondents Myers caused and/or allowed solid waste, including, but not limited to old furniture, trash, mattresses and waste tires to be stored and/or disposed at the St. Joe Site in a manner which creates a threat to human health or the environment.  Respondents Myers stored tires in a manner which creates a fire hazard, because there was limited accessibility to respond to a fire in two buildings at the St. Joe Site.  Some of the waste tires had accumulated water, even though they were stored inside sheds, trailers and buildings.  Some tires were stored in sheds that did not have a roof for cover.

 

After the inspection of the St. Joe Site and before the issuance of this Agreed Order, Respondents removed the old furniture, trash and mattresses from the Site.

 

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 inspection on May 7, 2014, Respondents Myers caused and/or allowed old furniture, trash, tires and mattresses to be open dumped at the St. Joe Site.

 

After the inspection of the St. Joe Site and before the issuance of this Agreed Order, Respondents removed the old furniture, trash and mattresses from 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 inspection on May 7, 2014, Respondents Myers stored at least two thousand (2,000) waste tires inside 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 at the St. Joe Site.

 

d.         Pursuant to IC 13-20-13-1.5, a person that stores waste tires shall do so in a manner that does not pose a threat to human health or the environment; does not pose a fire hazard; and controls vectors that pose a threat to human health.

 

As noted during the inspection on May 7, 2014, Respondents Myers stored waste tires inside sheds, buildings, and trailers at the St. Joe Site.  The waste tires were stored in a manner which creates a fire hazard, because there was limited accessibility to respond to a fire in two buildings at the St. Joe Site.  The waste tires had accumulated water, even though they were stored inside sheds, trailers and buildings.  Some tires were stored in sheds that did not have a roof for cover.

 

Respondent Leo Tire contends they stored waste tires and used tires at the St. Joe Site.  After the inspection of the St. Joe Site and before the issuance of this Agreed Order, Respondent Leo Tire also moved the used tires stored in one shed that did not have a roof and other buildings.

 

e.         Pursuant to IC 13-20-13-2, a person may not create or maintain a waste tire storage site or waste tire processing operation unless the person has registered the waste tire storage site or waste tire processing operation under 13-20-13 or IC 13-7-23 (before its repeal); and holds a valid certificate of registration issued under 13-20-13-3 or IC 13-7-23-7 (before its repeal).

 

As noted during the inspection on May 7, 2014, Respondents Myers stored over two thousand (2,000) tires inside sheds, buildings, and trailers at the St. Joe Site.  Respondents Myers are not registered as a waste tire storage site or a waste tire processing operation and therefore do not hold a valid certificate of registration.

 

f.          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 inspection on May 7, 2014, Respondents Myers deposited or caused and/or allowed the deposit of solid waste, including, but not limited to, old furniture, trash, mattresses and waste tires, in a method which has not been determined by the solid waste management board to be acceptable at the St. Joe Site.

 

After the inspection of the St. Joe Site and before the issuance of this Agreed Order, Respondents  Myers removed the old furniture, trash and mattresses from the Site.

 

g.         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 inspection on May 7, 2014, Respondents Myers dumped or caused and/or allowed the open dumping of old furniture, trash, mattresses and waste tires at the St. Joe Site.

 

After the inspection of the St. Joe Site and before the issuance of this Agreed Order, Respondents Myers removed the old furniture, trash and mattresses from the Site.

 

2.            On June 24, 2015, a representative of IDEM conducted an inspection at the St. Joe Site and violations noted during the May 7, 2014 inspection had been corrected.

 

3.            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.            Within thirty (30) days of the Effective Date, Respondent Leo Tire shall ensure that all used tires at the Leo Site meet the following criteria:

 

a.         The tire is suitable for use on a motor vehicle as follows:

1)         The tire has two thirty-seconds (2/32) inch of remaining tread, or the tire wear bars are not exposed.

2)         The tire has no cuts, slashes, or exposed cord.

b.         The tire is stored in a rack, stack, or row.

c.         The tire is stored out of the weather to prevent accumulation of water or precipitation in the tires.

 

3.            Upon the Effective Date, Respondents Leo Tire and Myers shall comply with 329 IAC 10-4-2 and 329 IAC 10-4-3.  Specifically, Respondents shall not allow the deposition of solid waste at the Leo or St. Joe Site except in appropriate containers for disposal.

 

4.            Within sixty (60) days of the Effective Date, Respondents Leo Tire and Myers shall ensure that all used tires at the St. Joe Site meet the following criteria:

 

a.         The tire is suitable for use on a motor vehicle as follows:

1)         The tire has two thirty-seconds (2/32) inch of remaining tread, or the tire wear bars are not exposed.

2)         The tire has no cuts, slashes, or exposed cord.

b.         The tire is stored in a rack, stack, or row.

c.         The tire is stored out of the weather to prevent accumulation of water or precipitation in the tires.

 

5.            Pursuant to IDEM’s authority as stated in IC 13-14-2-2 and 13-20-13-6, Respondents shall allow IDEM access to the Leo Site and St. Joe Site to conduct inspections.

 

6.            All submittals required by this Agreed Order, unless Respondents are notified otherwise in writing by IDEM, shall be sent to:

 

Janet Arnold, Technical Environmental Specialist

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.            Respondents are assessed and agree to pay a civil penalty of Nine Thousand Seven Hundred and Ninety-Seven Dollars ($9,797).  Respondents are jointly and severally liable for this civil penalty.  Said penalty amount shall be due and payable to the Waste Tire Fund in twenty-four (24) monthly installments.  The first installment payment in the amount of Fourth Hundred and Thirteen Dollars ($413) is due within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.  Thereafter, subsequent monthly payments in the amount of Four Hundred and Eight Dollars ($408) shall be due on the 30th day being the “Due Date”.  Interest shall accrue on unpaid amounts at the rate established by IC 24-4.6-1-101.

 

8.         In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondents, as indicated below, shall pay a stipulated penalty in the following amount:

 

Paragraph

Penalty

Failure to comply with paragraph 2

Respondent Leo Tire shall pay $500 per week

Failure to comply with paragraph 3

Respondents shall pay $500 per week

Failure to comply with paragraph 4

Respondents shall pay $500 per week

Failure to comply with paragraph 5

Respondents shall pay $500 per week

 

Stipulated penalties shall be due and payable no later than the 30th day after Respondents receive written notice that Complainant has determined a stipulated penalty is due; the 30th day being the “Due Date”.  Complainant may notify Respondents at any time that a stipulated penalty is due.  Failure to notify Respondents in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking any additional relief against Respondents for violation of this Agreed Order.  Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondents for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

9.         Civil and stipulated penalties are payable by check to the “Waste Tire Fund.”  Checks shall include the Case Number of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

10.       In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, the responsible Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1.  The interest shall be computed as having accrued from the Due Date until the date that the responsible Respondent pays any unpaid balance.  Such interest shall be payable to the Waste Tire Fund, and shall be payable to IDEM in the manner specified in Paragraph 9, above.

 

11.       This Agreed Order shall jointly and severally apply to and be binding upon Respondents and 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 party 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.

 

12.       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.

 

13.       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.

 

14.       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.

 

15.       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.

 

16.       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.

 

17.       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.

 

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

 

TECHNICAL RECOMMENDATION:

RESPONDENT LEO TIRE & WHEEL, INC.:

Department of Environmental Management

 

 

 

By: _________________________

By:  _________________________

 

Nancy Johnston, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: __________________

Date: _______________________

 

 

 

 

RESPONDENT TIMOTHY MYERS:

RESPONDENT SHERRY MYERS:

 

 

 

 

By:  _________________________

By:  _________________________

 

 

Printed: ______________________

Printed: ______________________

 

 

Title: ________________________

Title: ________________________

 

 

Date: _______________________

Date: _______________________

 

 

 

 

 

COUNSEL FOR RESPONDENTS:

 

 

 

 

 

By: ________________________

 

 

 

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_________

DAY OF

_______________________,

20__.

 

 

For the Commissioner:

 

 

 

Signed 12-31-15__

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality