STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. )
)
STEWART RECYCLING, INC.; )CAUSE NO. 1997-5004-S or SW-337
)
ERIC STEWART; and )
)
SANDRA STEWART )
)
Respondents. )
The Complainant and the 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.
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. Respondents are Stewart Recycling, Inc., Eric Stewart and Sandra Stewart (hereinafter
referred to as the "Respondents"). Stewart Recycling, Inc. is in the business of recovering
scrap metal from vehicle salvage yards for recycling. Eric Stewart is the President of
Stewart Recycling, Inc. and Sandra Stewart is the Secretary of Stewart Recycling, Inc.
The Respondents have improperly disposed of waste tires on property owned by Eric and
Sandra Stewart located at R.R. 1, County Road 1100 South, Monroe City, Knox 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. On March 18, 1999, IDEM and the Respondents entered into an Agreed Order (SW-337).
5. In recognition of the settlement reached, Respondents waive any right to administrative
and judicial review of this Amendment to Agreed Order SW-337.
1. This Amendment to Agreed Order SW-337 shall be effective ("Effective Date") when it
is approved by the Complainant or her delegate, and has been received by the
Respondents. This Amendment to Agreed Order SW-337 shall have no force or effect
until the Effective Date.
2. Unless specifically stated, Agreed Order SW-337, adopted on March 18, 1998, remains in
full force and effect. This Amendment is to be made a part of and an addition to Agreed
Order SW-337.
3. Respondents shall shred a minimum of 800 tons of existing waste tires at the Site on or
before April 30, 2000. The shredding of waste tires must be done in compliance with all
applicable laws and regulations.
4. Respondents shall shred an additional minimum 800 tons of existing waste tires at the
Site on or before August 30, 2000. The shredding of waste tires must be done in
compliance with all applicable laws and regulations.
5. Documentation verifying the shredding of waste tires per Order Conditions #3 and #4
above must be submitted to IDEM by May 20, 2000 and September 20, 2000,
respectively.
6. Respondents shall remove and dispose, to a state approved solid waste management
facility, a minimum of fifteen (15) tons of existing waste tires from the Site per month
beginning January 2000. The Site must be brought into compliance with IC 13, 329 IAC
10 and 329 IAC 12, prior to December 31, 2001. This condition amends Order Condition
#4 of Agreed Order SW-337.
7. As an Addendum to the Respondents' Contingency Plan dated April 20, 1998,
Respondents shall, within thirty (30) days of receiving written notice from IDEM,
purchase a minimum of six (6) five (5) gallon buckets of 'Barricade Fire Blocking Gel'
(Barricade). The Barricade will be stored at an IDEM designated fire department in Knox
County.
8 . All submittals required by this Amendment to Agreed Order SW-337, unless notified
otherwise in writing, shall be sent to:
Mr. Paul Higginbotham
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
9.
Respondents are assessed a civil penalty of twenty-one thousand ($21,000.00) dollars.
If the Respondents bring the Site into compliance with 329 IAC 10, 329 IAC 12, IC 13,
Agreed Order SW-337 and this Amendment on or before December 30, 2000, the
assessed civil penalty will be reduced to zero ($0). Respondents shall pay the applicable
civil penalty on or before January 10, 2001, pursuant to the conditions in this paragraph,
as directed by Condition #13 of this Agreed Order. This condition amends Order
Condition #11 of Agreed Order SW-337.
10. "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 the 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 will 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 shall 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.
11. In the event the following terms and conditions are violated, the Complainant may assess
and the Respondents shall pay a stipulated penalty in the following amounts:
Violation Penalty
Amendment Order Conditions #3 or #4 $500 per week shredding is late.
Amendment Order Condition #5 $100 per week documentation is late.
Amendment Order Condition #6 $1,000 per monthly violation.
Amendment Order Condition #6 $1,000 per week the Site is not in
compliance past December 31, 2001.
Amendment Order Condition #7 $500 per week the purchase of
Barricade is late.
12. Stipulated penalties shall be due and payable within thirty (30) days after Respondents receive 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 Respondents for violation of this Amendment to Agreed Order SW-337. In lieu of assessment of any of the stipulated penalty given
above, the Complainant may seek any other remedies or sanctions available by virtue of
Respondents' violation of this Amendment to Agreed Order SW-337, or Indiana Law,
including but not limited to civil penalties pursuant to IC 13-30-4.
13. Civil and Stipulated penalties are payable by check to the Environmental Management
Special Fund. Checks shall include the Cause Number of this action and shall be mailed
to:
Cashier
IDEM
100 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
14. This Amendment to Agreed Order SW-337, shall apply to and be binding upon the
Respondents, their officers, directors, principals, agents, successors, subsidiaries, and
assigns. The Respondents' signatories to this Amendment to Agreed Order SW-337
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
Respondents shall in any way alter its status or responsibilities under this Amendment to
Agreed Order SW-337.
15. In the event that any terms of this Amendment to Agreed Order SW-337, are found to be
invalid, the remaining terms shall remain in full force and effect and shall be construed
and enforced as if the Amendment did not contain the invalid terms.
16. The Respondents shall provide a copy of this Amendment to Agreed Order SW-337, 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 Amendment to Agreed Order SW-337, comply with the terms of this
Amendment.
17. This Amendment to Agreed Order SW-337, shall remain in effect until Respondents have
complied with all terms and conditions of this Amendment.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By:___________________________ By:____________________________
Paul Higginbotham, Chief
Solid Waste - UST Section Printed: Eric Stewart
Office Of Enforcement
Title: Property Owner and President of
Stewart Recycling, Inc.
Date:_________________________ Date:__________________________
By:____________________________
Printed: Sandra Stewart
Title: Property Owner
Date:__________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:___________________________ By:____________________________
Office of Legal Counsel
Department of Environmental Management
Date:__________________________ Date:___________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS __________ DAY OF __________________, 2000.
For the Commissioner:
Signed 3/2/00
_________________________
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement
Converted by Andrew Scriven