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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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Complainant, |
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v. |
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Case Nos. 2022-28553-S & |
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2022-28554-S |
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J & E
TIRE REALTY, LLC, & |
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J & E
TIRE CENTER, INC., |
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Respondents. |
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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 Indiana Code (“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 IC
13-13-1-1.
2.
Respondent, J & E Tire Realty, LLC is the
owner of Property at 4835 South Harding Street in Indianapolis, Marion County,
Indiana (“Site”) and Respondent, J & E Tire Center, Inc., operates a tire
retail shop, located at the Site. Respondents own
and operate a waste tire storage facility without a registration at the 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 (“NOV”) via email to:
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Christopher
Anderson, Registered Agent |
Kristina
Zurcher, Registered Agent |
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J
& E Tire Center, Inc. |
J
& E Tire Realty, LLC |
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4835
South Harding Street |
116
W. Jackson |
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Indianapolis,
IN 46217 |
Monroe,
IN 46772 |
5.
During
an investigation including inspections on June 7, 2021;
August 17, 2021; December 7, 2021; and February 7, 2022, conducted by a
representative of IDEM, the following violations were found:
a.
Pursuant
to 329 Indiana Administrative Code (“IAC”) 15-3-2, the owner or operator of a
waste tire storage site shall (1) possess a valid certificate of registration
issued under this rule; (2) comply with all applicable requirements of this
rule; and (3) maintain financial assurance as required by 329 IAC 15-5.
As
noted during the inspections, Respondents do not possess a valid certificate of
registration to store waste tires. Respondents
stored approximately 6,075 passenger tire equivalents (PTEs) on Site.
Approximately 1,340 of the 6,075 PTEs were waiting to be retreaded,
but were not stored in accordance with IC 13-20-13-1(b).
As noted
during the inspections, Respondents do not possess a valid certificate of
registration to store waste tires. Respondents stored approximately 6,075
passenger tire equivalents (PTEs) on Site. Approximately 1,340 of the 6,075
PTEs were waiting to be retreaded, but were not stored
in accordance with IC 13-20-13-1(b).
6.
Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the
settlement reached, Respondents acknowledge notice of this right and 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 Respondents. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondents shall comply with 329 IAC 15-3-2
and IC 13-20-13-2 listed in the findings of fact above.
3.
Respondents shall not operate a solid waste storage
facility unless permitted in accordance with 329 IAC 15.
4.
Within thirty (30) days of the Effective Date, Respondents
shall ensure that all used tires at the 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.
1) is accessible for inspection; and
2) allows access for emergency equipment.
c. The tire is stored out of the weather
to prevent accumulation of water or precipitation in the tires.
5.
Within thirty (30) days of the Effective Date, Respondents
shall remove and properly dispose of all waste tires that do not meet the
requirements of a used tire or retread tire at a permitted solid waste disposal
facility.
6.
Within forty-five (45) days of the Effective
Date, Respondents shall submit disposal records for the removal and proper
disposal of all waste tires that do not meet the requirements of a used tire or
retread tire at a permitted solid waste disposal facility. Respondent shall also
submit records for tires taken to a retread facility.
7.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondents otherwise
in writing, shall be sent to:
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Janet
Arnold, Technical Environmental Specialist |
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Office
of Land Quality |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
8.
Pursuant to IC 13-30-4-1, Respondents are
assessed and agree to pay a civil penalty of Nine Thousand Dollars ($9,000),
for which Respondents are jointly and severally liable. Respondents shall pay
by the due date printed on the Invoice, as attached.
Civil and stipulated penalties are
payable to the “Waste Tire Fund” by:
Mail:
Civil penalties are payable by check to
the “Waste Tire 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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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
Online:
Accounts Receivable is accepting
payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM.
Under Online Services, click Online Payment options and follow the prompts. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck payments.
The Case Number is required to complete
the process.
Phone:
You may also call us at 317-234-3099 and
follow the instructions for Master Card, Visa or Discover payments. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck payments.
The Case Number is required to complete
the process.
9.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess
and Respondents shall pay stipulated penalties in the following amounts:
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Paragraph |
Stipulated Penalty |
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Order
paragraph #4 |
$500
per week violation |
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Order
paragraph #5 |
$500
per week violation |
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Order
paragraph #6 |
$100
per week violation |
10.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondents receive written notice that
Complainant has determined a stipulated penalty is due; the thirtieth 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 a stipulated penalty assessment shall not waive Complainant’s right
to collect such stipulated penalty or preclude Complainant from seeking
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.
11.
In the event that the monies
due to IDEM pursuant to this Agreed Order are not paid on or before their Due
Date, Respondents shall pay an additional penalty of 10 percent, payable to the
“Waste Tire Fund”, and shall be payable to IDEM in the manner specified in
Paragraph 8, above.
12.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
13.
This Agreed Order shall apply to and be binding
upon Respondents and all successors and assigns. Respondents shall provide a
copy of this Agreed Order, if in force, to any subsequent owners, successors,
or assigns before ownership rights are transferred.
14.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’ status or responsibilities under this
Agreed Order.
15.
Respondents shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
16.
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.
17.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
18.
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.
19.
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 violations specified
in the NOV.
20.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the U.S. Environmental
Protection Agency (U.S. 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 U.S. EPA or any
other agency or entity.
21.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department
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J & E Tire Realty, LLC |
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Jennifer
Reno, Chief |
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Compliance
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RESPONDENT: |
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Printed:
J & E Tire Realty, LLC |
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COUNSEL FOR RESPONDENT: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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OF |
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For
the Commissioner: |
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Signed on 8/25/22 |
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Peggy
Dorsey |
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Assistant
Commissioner |
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Office
of Land Quality |
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