STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS:
COUNTY OF MARION ) OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) Cause No. H-13091
v. ) SW-325
)
NOLAND CAMPBELL, JR. )
d/b/a CENTRAL AUTO SALVAGE )
)
)
Respondent. )
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.
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is Noland Campbell Jr., d/b/a Central Auto Salvage, (hereinafter referred to as "Respondent"), who owns and operates Central Auto Salvage, a company doing business at 1008 Virginia Street, Gary, Lake County, Indiana (hereinafter referred to as "the Site").
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. The site is an auto salvage yard. At the time of the May 9, May 15, and May 31, 1996, and March 3 and September 2, 1997, inspections by the IDEM, Respondent had failed to notify the U.S. EPA of its hazardous waste activities.
5. At the time of the inspections by the IDEM, Respondent was storing lead plates and plastic chips (from spent lead acid batteries) in waste piles on the ground at the rear of the salvage yard. Information from sampling conducted by IDEM and analyzed by American Analytical Inc. indicates that both the waste plastic chips and the surrounding soil have lead (D008) values higher than the regulatory limit.
6. A pile is defined as any non-containerized accumulation of solid, nonflowing hazardous waste that is used for treatment or storage, pursuant to 40 CFR Part 260.10.
7. Land disposal is defined as placement in or on the land and includes, but is not limited to, placement in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, underground mine or cave, or placement in a concrete vault or bunker intended for disposal purposes, pursuant to 40 CFR Part 268.2(c).
8. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Nolan Campbell, Jr., Owner
d/b/a Central Auto Salvage
1008 Virginia Street
Gary, Indiana 46402
9. Investigations of the facility were conducted on May 9, May 15, and May 31, 1996, and March 3 and September 2, 1997, by the Office of Solid and Hazardous Waste Management (hereinafter referred to as the "OSHWM") of the IDEM. the IDEM contends that the violations noted in Findings 10 and 11 were in existence or observed at the time of the inspections:
10. COUNT I
H-13091
A. Pursuant to IC 13-30-2-1(10), 40 CFR 270.1(c), and 40 CFR 262.34(b), no person may commence or engage in the operation of a hazardous waste facility without having first obtained a permit from the IDEM. An owner/operator is required to have a permit for the treatment, storage, and disposal of any hazardous waste as identified or listed in 40 CFR Part 261 and is subject to the requirements of 40 CFR Parts 264 and 265 and the permit requirements of 40 CFR Part 270. Based on information gathered by the IDEM, Respondent failed to obtain a permit for the storage of waste lead plates and chips from spent batteries (D008) in waste piles and failed to comply with the storage facility requirements of 40 CFR Part 264.
B. Pursuant to 40 CFR Part 268, an owner/operator must appropriately treat a waste before placing it for land disposal. Based on information gathered by the IDEM, Respondent failed to appropriately treat waste lead plates and chips from spent batteries (D008) before placing them for land disposal.
C. Pursuant to 40 CFR 262.11 and 40 CFR 268.7(a), a person who generates a solid waste, as defined in 40 CFR 261.2, must determine if that waste is a hazardous waste. If a generator's waste is hazardous, the generator must determine if the waste is restricted from land disposal under 40 CFR Part 268. Based on information gathered by the IDEM, Respondent failed to make a proper hazardous waste determination and failed to determine if the waste is restricted from land disposal for waste lead plates and chips from spent batteries (D008) stored in waste piles at the facility.
D. Pursuant to 40 CFR 264.250, an owner or operator of a hazardous waste pile must comply with all applicable requirements of 40 CFR 264, Subpart L. Based on information gathered by the IDEM, Respondent failed to comply with all applicable requirements of 40 CFR, Subpart L for hazardous waste piles at the facility.
E. Pursuant to 40 CFR 264.16, an owner or operator of a hazardous waste treatment, storage, or disposal facility must provide facility personnel involved in hazardous waste management with a program of classroom instruction or on-the-job training that teaches them to perform their hazardous waste duties in a way that ensures compliance with all requirements of 40 CFR 264.16. Based on information gathered by the IDEM, Respondent failed to provide facility personnel involved in hazardous waste management with the required hazardous waste management training.
F. Pursuant to 40 CFR 264.51 and 40 CFR 264.56, an owner or operator of a hazardous waste facility must have a contingency plan for his facility that is designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water. Additionally, the owner or operator must develop emergency procedures to implement if ever there is an imminent or actual emergency situation at the facility. Based on information gathered by the IDEM, Respondent failed to have a contingency plan for his facility and failed to develop emergency procedures in case of an emergency at the facility.
G. Pursuant to 40 CFR 264.37, an owner or operator must attempt to make arrangements with local authorities in case of an emergency at the facility. Based on information gathered by the IDEM, Respondent failed to attempt to make arrangements with local authorities in case of an emergency at the facility.
H. Pursuant to IC 13-30-2-1(1), (3), (4), and (5) [IC 13-7-4-1(1), (3), and (4) prior to July 1, 1996], no person may discharge, emit, cause, allow, or threaten to 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 any form that causes or would cause pollution in violation of 40 CFR 264.31 and/or 329 IAC 10-4-2; no person may deposit contaminants upon the land in a place and manner that creates or would cause a pollution hazard that violates a rule adopted by one (1) of the boards; no person may 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; and no person may dump or cause or allow the dumping of garbage or any other solid waste in violation of rules adopted by the solid waste management board. Based on information gathered by the IDEM, Respondent allowed the release of lead pollutants (from several hundred spent lead acid batteries) and automotive fluids (including two (2) large areas of used oil spillage) onto the ground. Additionally, Respondent caused or allowed the open dumping of lead pollutants, automotive fluids, and waste tires at the Site.
11. COUNT II
SW-325
A. Pursuant to 329 IAC 10-4-2 and 3, 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 combination, and prohibits open dumping and open dumps. Based on information gathered by the IDEM, Respondent was open dumping solid waste, including several hundred spent lead acid batteries, automotive fluids, and waste tires at the Site.
B. Pursuant to IC 13-20-13-2 [IC 13-7-23-6(b) prior to July 1, 1996], no person may maintain a waste tire storage site unless the person has registered the waste tire storage site under IC 13-20-13 [IC 13-7-23 prior to July 1, 1996] and holds a valid certificate of registration under IC 13-20-13-3. Based on information gathered by the IDEM, Respondent operated a waste tire storage site without the proper certificate of registration.
C. Pursuant to 329 IAC 12-5-1, no person shall operate a waste tire storage site, except as provided in 329 IAC 12-5-1, after February 21, 1994. Based on information gathered by the IDEM, Respondent operated a waste tire storage site without the proper certificate of registration.
12. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed 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 the Respondent. This Agreed Order shall have no force or effect until the effective date.
2. Upon the effective date of the Order, Respondent shall, if hazardous waste is ever generated at the facility, comply with all applicable requirements of 40 CFR 262.34.
3. Within one (1) year of the effective date of the Order, Respondent shall clean up any lead contamination at the Site to the extent necessary to minimize risk to human health and the environment.
4. Within one (1) year of the effective date of the Order, Respondent shall offer for transport and disposal to permitted facilities, any hazardous wastes which have accumulated on-site. All manifests for hazardous waste shall be prepared pursuant to 329 IAC 3.1-7-8 and 329 IAC 3.1-7-11.
5. Within one (1) year of the effective date of the Order, Respondent shall clean up any spillage of automotive fluids (including used oil) on the ground by removing all signs of visible contamination, plus six (6) inches below. Respondent shall ensure that the soil is disposed of properly.
6. Within six (6) months of the effective date of the Order, Respondent shall lift and remove all wastes tires, including waste tires mounted on rims, to a permitted solid waste management facility.
7. Respondent shall use a registered waste tire transporter to transport all waste tires to a facility authorized to accept waste tires for processing, storage, or disposal.
8. Within five (5) days of removal of each load of waste tires, Respondent shall submit to IDEM copies of all disposal receipts and manifests documenting proper disposal of waste tires from the Site.
9. Upon the effective date of the Order, Respondent shall drain and containerize all automotive fluids from automotive vehicles before storing automotive vehicles on the Site. Respondent shall properly dispose of all containerized automotive fluids.
10. Respondent shall meet with IDEM representatives within one (1) year of the effective date of the Order in order to apprise IDEM representatives of the cleanup efforts at the Site.
11. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Brenda J. Lepter
Office of Enforcement
Hazardous Waste Section
Indiana Department of
Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
12. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
Failure to comply with Orders $100/day per violation
# 3, 4, and 5 of the Agreed Order.
Failure to comply with Orders $100/week per violation
# 6 and 8 of the Agreed Order.
Failure to comply with Orders $100 per violation
#7 and 9 of the Agreed Order.
13. 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 any 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 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.
14. "Force Majeure," for purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent's best efforts to fulfill the obligation. The requirement that Respondent exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include financial inability to complete the work required by this Agreed Order or increases in costs to perform the work.
The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures shall be implemented. The Respondent shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM. Said decision will be communicated to the Respondent.
If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is attributable to the event constituting the force majeure.
15. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The 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.
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 the Agreed Order did not contain the invalid terms.
17. 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 by contract require that all contractors, firms, and other persons acting for it comply with the terms of this Agreed Order.
18. This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause letter to Respondent.
TECHNICAL RECOMMENDATIONS: RESPONDENT:
Department of Environmental Management
By: ________________________ By: ________________________
Nancy L. Johnston, Chief
Hazardous Waste Section Title: ________________________
Office of Enforcement
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ________________________ By: ________________________
Scott Storms
Office of Legal Counsel
Date: ________________________ Date: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT
THIS _______ DAY OF ________________ 1999.
For the Commissioner:
Signed on 3/8/99
________________________
Felicia Robinson George
Assistant Commissioner
Office of Enforcement