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. H-13805 & SW-411

)

CHARLES JACKIE MOORE, )

PROPERTY OWNER, )

)

)

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 ("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 Mr. Charles Jackie Moore ("Respondent"). Respondent purchased the site at 1920 North Ohio Street, formerly the site of J & L Salvage Company, in Kokomo, Howard County, Indiana.

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, on December 23, 1999, IDEM issued a Notice of Violation via Certified Mail to:

Mrs. Olivia Badger Mr. Jim Buress

8225 East 275 South J & L Salvage

Peru, Indiana 46970 1920 North Ohio Street

Kokomo, Indiana 46901

Mr. Clinton Harris

7728 East 1150 South

Galveston, Indiana 46932

5. Inspections on May 15 and June 23, 1998, and July 23, 1999, were conducted at the Site by a representative of IDEM’s Office of Land Quality ("OLQ"). The following violations were in existence or observed at the time of these inspections:

a. Pursuant to IC 13-30-2-1(1), no person shall 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. Based upon information gathered by IDEM, Respondent is purchasing the site where previous owners allowed the release of contaminants onto the land from one (1) leaking fifty-five (55) gallon container of waste paint and one (1) leaking fifty-five (55) gallon container labeled "Hazardous Waste."

b. Pursuant to 329 IAC 10-4-2, 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 creation of a fire hazard, vector attraction, air or water pollution, or other contamination. Based upon information gathered by IDEM, there are waste tires open dumped at the site.

c. Pursuant to IC 13-30-2-1(4), a person may not deposit or cause or allow the deposit of 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. Based upon information gathered by IDEM, Respondent caused or allowed an open dump of waste tires at the facility.

d. Pursuant to IC 13-30-2-1(5), 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. Based upon information gathered by IDEM, Respondent caused or allowed an open dump of waste tires at the facility.
    1. A settlement conference was held on January 24, 2000, November 29, 2000, and October 31, 2001 to discuss the issues contained in this Agreed Order.

7. Respondent Charles Jackie Moore purchased the property on November 6, 2001, from the previous owners Clinton R. Harris, Anita R. Harris, and Olivia C. Badger.

8. 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. Upon the Effective Date of the Order, Respondent shall cease and desist the acceptance of any additional solid, special, or hazardous waste at the former J & L Salvage property.
    1. Within one hundred and eighty (180) days of the Effective Date of the Order, Respondent shall identify all waste tires located at the former J & L Salvage property and remove them, via a registered waste tire transporter, pursuant to 329 IAC 12-6, to a facility authorized to accept waste tires for processing, storage, or disposal.
    2. Respondent shall submit copies of all waste tire manifests and disposal receipts to IDEM within one hundred and ninety (190) days of the effective date of the Order.

5. Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall submit to IDEM a site assessment plan. The purpose of the site assessment plan will be to conduct sampling and analysis in order to assess the nature and extent of potential soil and/or ground water contamination from the areas of concern which include those areas described in Finding of Fact No. 5. a. The site assessment plan shall be based upon the principles outlined within IDEM’s Risk Integrated System of Closure (RISC) Technical Resource Guidance Document ("TRGD"), dated February 15, 2001, which can be accessed at: http://www.state.in.us/idem/olq/risc. In addition, the site assessment plan shall be subject to the following items listed below.
    1. Address all areas of potential contamination in and around each area of concern.
    2. Specify the method of determining the number and location of samples to be taken to yield a representative assessment of each area of concern. This method shall be:

1. random grid sampling, pursuant to Chapters 3 and 4 of the TRGD; or

2. directed sampling, pursuant to Section 3.4 of Chapter 3 of the TRGD; and
    1. developed to provide locations and methods of any ground water samples pursuant to Section 3.4 of Chapter 3 of the TRGD.
    1. Specify how the soil samples will be obtained and handled in order to minimize loss of volatile constituents. Respondent may composite samples of non-volatiles (i.e., metals and semi-volatiles), but shall not composite samples of volatiles, pursuant to Section 3.4 of Chapter 3 of the TRGD.
    2. Clearly define all sampling and analytical protocols designed to identify hazardous waste or its constituents, pursuant to 40 CFR Part 261, including 40 CFR Part 261 Appendices I, II, III, and VIII. The site assessment plan shall include the method of sample collection, pursuant to "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846. This includes, but is not limited to, sample collection containers, preservatives, and holding times.
    3. Specify that chain-of-custody of the samples shall be maintained and Quality Assurance and Quality Control ("QA/QC") procedures shall be followed, pursuant to Appendix 2 of the TRGD.

f. Include within the site assessment plan a supplemental contingent plan for determining the nature and extent of:

1. soil contamination in the event that sampling and analysis indicates soil contamination to exist above default residential levels as specified in Table A, Appendix I, of the TRGD; and

2. ground water contamination in the event that sampling and analysis indicates hazardous waste or its constituents are detected in the ground water as specified in Chapter 4 of the TRGD.

g. Include within the site assessment plan time frames for its implementation.
    1. The site assessment plan shall be approved by IDEM prior to its implementation.

6. Within fifteen (15) days of receiving notice from IDEM of approval of the site assessment plan, Respondent shall implement it as approved and in accordance with the time frames contained therein.

7. Within fifteen (15) days of obtaining the sample results, Respondent shall submit the results of the analyses performed above, including chain-of-custody information, and QA/QC records, pursuant to Appendix 2 of the TRGD, to IDEM.

8. If soil or ground water contamination is identified in or around an area of concern, then Respondent shall submit within sixty (60) days subsequent to the completion of the analyses, a remediation workplan to IDEM for the purpose of remediating all soil and/or ground water contamination in and around each area of concern. The remediation workplan shall:

a. Pursuant to Chapter 6 of the TRGD, remediate each contaminated area to closure. Closure levels shall be one of the following:

1. default residential levels, pursuant to Table A, Appendix I, in the TRGD; or

2. commercial/industrial default values (if appropriate to the facility), pursuant to Table A, Appendix I, in the TRGD. Ground water shall meet residential default values at the property boundary or control; or

3. closure levels for soil can also be established using the non-default procedures presented in Chapter 7 of the RISC Technical Guide. The alternate cleanup level proposal must document that the constituents left in soil will not adversely impact any other environmental medium (ground water, surface water, or atmosphere) and that direct contact through dermal exposure, inhalation, or ingestion will not result in threats to human health or the environment; or

4. background levels for metals, pursuant to Section 1.6 of Chapter 1 of the TRGD, and/or the analytical method’s estimated quantitation limits ("EQLs") for organics.

b. Include a soil and/or a ground water sampling and analysis plan to be performed after the cleanup has been performed which verifies that all contamination has been removed.

c. Include within the remediation workplan time frames for its implementation.

9. Within fifteen (15) days of approval by IDEM of the remediation workplan, Respondent shall implement the plan as approved and in accordance with the time frames contained therein.

10. Within thirty (30) days of completion of the remedial action conducted pursuant to the remediation workplan, Respondent shall submit to IDEM certification by an independent registered professional engineer that the remedial action has been completed as outlined in the approved remediation workplan.

11. All submittals required by this Agreed Order, unless notified otherwise in

writing, shall be sent to:

Ms. Idelia Walker-Glover, Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

12. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation Penalty

Failure to comply with Order paragraph 3 $500 per week

Failure to comply with Order paragraph 4 $100 per week

Failure to comply with Order paragraph 5 $1000 per week

Failure to comply with Order paragraph 6 $1000 per week

Failure to comply with Order paragraph 7 $1000 per week

Failure to comply with Order paragraph 8 $1000 per week

Failure to comply with Order paragraph 9 $1000 per week

Failure to comply with Order paragraph 10 $1000 per week

 
    1. 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 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.
    2. 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

IDEM

100 N. Senate Avenue
    1. P. O. Box 7060
    2. Indianapolis, IN 46207-7060

15. This Agreed Order shall apply to and be binding upon the Respondent, its successors 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.

16. 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.

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 ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

18. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

 

 

 

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENTS:

Department of Environmental Management Charles Jackie Moore

By: __________________________ By: ________________________

Nancy L. Johnston, Chief

Office of Enforcement Printed:_______________________

Title: ________________________

Date: __________________________

 

By: __________________________

Paul Higginbotham, Chief

Office of Enforcement

Date: __________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENTS:

Department of Environmental Management

By: ___________________________ By: ________________________

Office of Legal Counsel

Date: ___________________________ Date: ________________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2001.

 

 

For the Commissioner:

SIGNED FEBRUARY 25, 2002

___________________________

Felicia A. Robinson

Deputy Commissioner for

Legal Affairs