STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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)

 

Complainant,

 

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)

 

 

v.

 

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Case No. 2014-22541-S

 

 

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LIBERTY TIRE SERVICES OF OHIO, LLC

 

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D/B/A LIBERTY TIRE RECYCLING, LLC,

 

)

 

 

 

 

 

Respondent.

 

)

 

 

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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.            Respondent is Liberty Tire Services of Ohio, LLC d/b/a Liberty Tire Recycling, LLC (“Respondent”), which owns and operates a waste tire storage, processing, and transporter facility located at 906 South State Street, in North Liberty, St. Joseph County, Indiana (“Site”).  The facility is a registered waste tire storage site (No. 071-S-00531), waste tire processor (No. 071-P-00497) and waste tire transporter (No. 071-T-00025).  Respondent’s waste tire storage site registration expires on July 1, 2017.  IDEM received Respondent’s waste tire processor renewal registration on June 2, 2014 and waste tire transporter renewal registration on July 8, 2014.

 

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 October 8, 2014 via Certified Mail to:

 

Liberty Tire Services of Ohio, LLC

Corporation Service Company,

d/b/a Liberty Tire Recycling

Registered Agent for

1251 Waterfront Place, 4th Floor

Liberty Tire Services of Ohio, LLC

Pittsburgh, Pennsylvania 15222

251 East Ohio Street, Suite 500

 

Indianapolis, Indiana 46204

 

5.         During an investigation, including inspections on September 24, 2013; December 16, 2013; February 26, 2014; and June 26, 2014, conducted by representatives of IDEM, the following violations were found:

 

a.         Pursuant to 329 IAC 15-3-2(2) and (3), the owner or operator of a waste tire storage site shall comply with all applicable requirements of this rule and maintain financial assurance as required by 329 IAC 15-5.

 

As noted during the inspections, Respondent has not complied with all applicable requirements of this rule and has not maintained financial assurance as required by 329 IAC 15-5.

 

b.         Pursuant to 329 IAC 15-3-9, the owner or operator of a waste tire storage or waste tire processing operation shall comply with all conditions included in the certificate of registration.

 

As noted during the inspections, Respondent has not complied with all of the conditions included in the certificate of registration.  Specifically, Respondent stored more than 44,000 PTEs at the Site.

 

c.         Pursuant to 329 IAC 15-3-16, if the information provided in the application for the certificate of registration changes, the owner or operator of a waste tire storage site or waste tire processing operation shall provide the current information to the department no more than thirty (30) days after the information provided in the application for the certificate of registration changes.

 

As noted during the inspections, Respondent has exceeded the number of waste tires listed on its registration by 78,768 passenger tire equivalents (PTEs) over the permitted 44,000 PTEs and had not notified IDEM of its current number of waste tires at the Site.

 

d.         Pursuant to 329 IAC 15-3-17(c)(1) and (2), the owner or operator of a waste tire storage site or waste tire processing operation shall operate that waste tire storage site or waste tire processing operation in compliance with this section at all times.  The waste tire storage site and waste tire processing operation must not do the following: 1) pose a threat to human health or the environment; and 2) create a nuisance.

 

As noted during the inspections, Respondent allowed the number of PTEs on-site to exceed the number listed on its registration by multiple volumes which creates a threat to human health or the environment, including creating a fire hazard, vector attraction, or other contamination.

 

e.         Pursuant to IC 13-20-13-5(3), a person that obtains a certification of registration under section 3 of this chapter must maintain financial assurance acceptable to the department necessary for waste tire removal, in an amount specified in rules adopted by the board under section 11(b)(3) of this chapter.

 

As noted during the inspections, Respondent has failed to maintain financial assurance acceptable to the department necessary for waste tire removal.

 

f.          Pursuant to 329 IAC 15-5-1(2), the owner or operator of a waste tire storage site shall maintain financial assurance for removal of waste tires and final closure of the site, in an amount equal to or greater than the closure cost estimate.

 

As noted during the inspections, Respondent had not maintained financial assurance for the removal of waste tires and final closure of the site, in an amount equal to or greater than the closure cost estimate.

 

g.         Pursuant to 329 IAC 15-5-3.5(1) and (2), the owner or operator of a waste tire storage site shall submit to the department a revised written closure cost estimate 1) annually, not later than January 31 of each year and 2) whenever a change in the removal plan increases the closure cost estimate.

 

As noted during the inspections, Respondent has not submitted to the department a revised written closure cost estimate which reflects the increase in the number of PTEs at the Site.

 

h.         Pursuant to 329 IAC 15-3-17(j)(1) and (2), the owner and operator of a waste tire storage site or waste tire processing operation shall prevent water from accumulating in waste tires by draining waste tires on the day of receipt and as necessary thereafter to prevent accumulation of water in the waste tires.  Within seven (7) days after receipt, whole waste tires must be altered or modified so that the tire cannot hold water.

 

As noted during the inspections, Respondent stored unaltered or unmodified waste tires in a manner that allowed water to accumulate in the waste tires.

 

i.          Pursuant to 329 IAC 15-3-17(j)(3), the owner and operator of a waste tire storage site or waste tire processing operation shall prevent water from accumulating in waste tires by not storing waste tires in standing water.

 

As noted during the inspections, Respondent stored waste tires in standing water.

 

j.          Pursuant to 329 IAC 15-3-17(h), the owner or operator of a waste tire storage site or waste tire processing operation shall take all actions required to do the following: 1) prevent the breeding of mosquitoes; and 2) control any mosquito population.

 

As noted during the inspections, Respondent did not implement mosquito prevention methods at the Site.

 

k.         Pursuant to 329 IAC 15-4-13, a waste tire transporter shall prepare a manifest for each load of waste tires using the form shown in Figure 1 of this rule and include all information requested on the form.

 

As noted during the inspections, incoming and outgoing manifests did not have generator signatures, destination facility signatures, description of shipment (amount of waste tires), and registration numbers indicated.

 

6.         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 Complainant or Complainant’s delegate, and has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.            Respondent shall comply with statutes and rules listed in the findings here at issue.

 

3.         Within sixty (60) days of the Effective Date of this Agreed Order, Respondent shall remove from the Site all waste tires in excess of the 44,000 PTEs allowed according to Waste Tire Storage Registration No. 071-S-00531 and dispose of such excess waste tires at a state approved solid waste management facility or recycle excess waste tires in an alternative manner acceptable to IDEM.

 

4.         Within seventy-five (75) days of the Effective Date of this Agreed Order, Respondent shall submit documentation demonstrating the removal of all excess PTEs noted in Finding 5c.  Documentation shall include completed waste tire manifests or receipts from a state approved solid waste management facility or receipts or bill of ladings from an acceptable alternative facility.

 

5.         Upon the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC 15-3-17(j)(1) and (2).  Specifically, Respondent shall drain waste tires on the day of receipt and as necessary thereafter to prevent accumulation of water in waste tires.

 

6.         Upon the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC 15-3-17(j)(3).  Specifically, Respondent shall not store waste tires in standing water.

 

7.         Upon the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC 15-3-17(h).  Specifically, Respondent shall implement mosquito prevention methods at the Site.

 

8.         Upon the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC 15-4-13.  Specifically, Respondent shall ensure incoming and outgoing manifests are completely filled out, including the following information:  generator signatures, destination facility signatures, description of shipments (amount of waste tires), and registration numbers.

 

9.         All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

           

Jennifer Reno, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

           

10.       Respondent is assessed and agrees to pay a civil penalty of twenty-five thousand dollars ($25,000.00).  Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this in the amount of three thousand forty dollars ($3,040.00).  Said penalty amount shall be due and payable to the Waste Tire Fund.  In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (“SEP”).  Respondent estimates that this SEP will cost twenty-one thousand nine hundred sixty dollars ($21,960.00).  Within fifteen (15) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP.  In the event that the cost of the SEP is less than twenty-one thousand nine hundred sixty dollars ($21,960.00), Respondent shall pay the difference between the proposed cost of the SEP ($21,960.00) and the actual cost of the SEP.

 

11.       As a Supplemental Environmental Project, Respondent shall implement an environmental restoration project on property located at 5593 West 350 South, Morocco, Indiana.  The cleanup will consist of removing and properly disposing approximately 6,800 waste tires.  Respondent will complete this SEP within ninety (90) days of the Effective date of this Agreed Order.

 

12.       In the event Respondent does not complete the SEP within ninety (90) days of the Effective date of this Agreed Order, the full amount of the civil penalty as stated above in paragraph #10 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent’s receipt of IDEM’s notice to pay.  Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

 

13.       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:

 

Paragraph

Penalty

 

 

Order paragraph 3

$500 per week or part thereof

Order paragraph 4

$100 per week or part thereof

 

14.       Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30th day being the “Due Date”.  Complainant may notify Respondent at any time that a stipulated penalty is due.  Failure to notify Respondent 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 additional relief against Respondent for violation of this Agreed Order.  Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent 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.

 

15.       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 1307

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

16.       In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, 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 Respondent pays any unpaid balance.  Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 15, above.

 

17.       This Agreed Order shall apply to and be binding upon Respondent and its 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 he represents.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter its 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 its obligation to comply with the requirements of his applicable permits 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.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

 

By: _________________________

By:  _________________________

 

Nancy Johnston, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: ______________________

Date: ________________________

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

By: ________________________

 

 

 

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

_______

DAY OF

_____________________,

20__.

 

 

For the Commissioner:

 

 

 

Signed on 4/28/15___

 

Bruce H Palin

 

Assistant Commissioner

 

Office of Land Quality