STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. SW-323

)

RICHARD SCHWANKE )

)

Respondent. )

 

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 (hereinafter referred to as AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
    1. Respondent is Richard Schwanke (hereinafter referred to as Respondent. Respondent open dumped whole waste tires at R.R. 2, Box 28, County Road 80 West, Wheatfield, Jasper County, Indiana (hereinafter referred to as "the Site").
    2. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

      3.  

       

     

     

  1. Pursuant to IC 13-30-3-3-, IDEM issued a Notice of Violation via Certified Mail to:

Richard Schwanke

R.R. 1 Box 235

Medaryville, Indiana 47957

Linda Uphold

R.R. 2 Box 28

Wheatfield, Indiana 46392

5. IDEM conducted inspections on July 13 and September 28, 1995, April 12 and November 18, 1996, and February 13, 1997.
    1. During the above noted inspections, the Respondent was found in violation of:
    1. 329 IAC 10-4-2 (329 IAC 2-4-2 prior to April 13, 1996), which states: "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." This violation is based on the fact that during these inspections it was observed that you had open dumped waste tires at the Site.
    2. 329 IAC 10-4-3 (329 IAC 2-4-3 prior to April 13, 1996), which states: "Open dumping and open dumps, as those terms are defined in IC 13-11-2-146 and –147 (IC 13-7-1-16 prior to July 1, 1996) are prohibited." This violation is based on the fact that during these inspections it was observed that you had open dumped waste tires at the Site.
    3. IC 13-30-2-1(3) [IC 13-7-4-1 (3) prior to July 1, 1996], which states that a person may not: "Deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate a rule adopted by one (1) of the boards." This violation is based on the fact that during these inspections it was observed that you caused or allowed an open dump of waste tires at the site.
    4. IC 13-30-2-1(4) [IC 13-7-4-1(4) prior to July 1, 1996], which states that a person may not: "Deposit or cause or allow the deposit of any 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." The violation is based on the fact that during these inspections it was observed that you caused or allowed an open dump of waste tires at the Site.

      5.  

       

    5. IC 13-30-2-1(5) which states that a person may not: "Dump or cause or allow the open dumping of garbage or any other solid waste in violation of rules adopted by the solid waste management board." This violation is based on the fact that during these inspections it was observed that you caused or allowed an open dump of waste tires at the Site.

      6. F. 329 IAC 12-5-1(a) (329 IAC 2-23-2 prior to April 13, 1996), which states that no person shall: "Operate a waste tire storage site, except as provided in 329 IAC 12-5 after February 21, 1994." This violation is based on the fact that during these inspections you were operating a waste tire storage site in violation of these rules including without the proper certificate of registration.

    6. IC 13-20-13-2 [IC 13-7-23-6(b) prior to July 1, 1996], which states that a person may not: "Maintain a waste tire storage site unless the person has registered the waste tire storage site under this chapter or IC 13-7-23 (before it repeal) and holds a valid certificate of registration issued under section 3 of this chapter or IC 13-7-23-7 (before its repeal)." This violation is based on the fact that during these inspections it was observed you operated a waste tire storage site without the proper certificate of registration.

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

2. After the Effective Date of this Agreed Order, Respondent shall lift and remove at least four hundred (400) waste tires from the Site per month to a permitted solid waste disposal or processing facility. Respondent shall record each load of waste tires removed from the Site on waste tire manifests according to 329 IAC 12.

3. Respondent shall complete the removal of all waste tires from the Site within ninety (90) days of the Effective Date of this Agreed Order.
    1. Respondent shall use a registered waste tire transporter to transport all waste tires from the Site to a facility authorized to accept waste tires for processing or disposal.
    2. Respondent shall submit to IDEM copies of all disposal receipts and waste tire manifests for the removal of the waste tires within one hundred (120) days of the Effective Date of this Agreed Order.

      3.  

       

    3. Respondent shall not operate as a waste tire transporter, unless done in compliance with 329 IAC 12.
    4. Respondent shall not operate as a solid waste disposal or processing facility, unless done in compliance with 329 IAC 10 and 329 IAC 11 and IC 13.

8. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Jennifer Reno, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

9. In the event the terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

Violation Penalty

Order Condition #2 $500 per week per violation

Order Condition #3 $500 per week per violation

Order Condition #5 $500 per week per violation

10. 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 assessment 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.

11. 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:

Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

 

 

 

 

 

12. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, 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.

13. 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.

14. 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.

13. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By: _______________________________ By: _________________________

Paul Higginbotham, Acting Chief

Chief, [Section] Solid Waste Section Printed: Richard Schwanke_______

Office of Enforcement

Date: Signed on 6/4/98_______________ Date: Signed 6/2/98____________

 

COUNSEL FOR COMPLAINANT:

Department of Environmental Management

By: Deborah Hugh_____________

Office of Legal Counsel

Date: Signed 6/5/98____________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS 15th DAY OF June, 1998.

 

 

For the Commissioner:

 

Signed on 6/15/98________

David J. Hensel

Director

Office of Enforcement