STATE OF INDIANA    )            BEFORE THE INDIANA DEPARTMENT
                )        SS:    OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
            Complainant,            )
                            )    CAUSE NO. SW-319
            v.                )
    )
ROSALIE HAHN    )
KERMIT BROWN    )
                            )
            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 Rosalie Hahn and Kermit Brown (hereinafter referred to as "Respondents"). The Respondents own and operate an open dump on property located at 64733 County Road 1, Wakarusa, Elkhart 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.    Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

        Rosalie Hahn                Kermit Brown
        64733 County Road 1        64733 County Road 1
        Wakarusa, Indiana 46573        Wakarusa, Indiana 46573

5.    IDEM conducted inspections on March 1, April 11, May 10, August 1, October 7, 1996 and March 10, 1997.

     During the above noted inspections, the Respondents were found in violation of:
    
         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.

         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 13-7-1-16 are prohibited." (IC 13-7-1-16 has been recodified at IC 13-11-2-146 and IC 13-11- 2-147). This violation is based on the fact that during these inspections it was observed that you had open dumped waste tires at the Site.

    C.    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.

    D.    IC 13-30-2-1(4) [IC 13-7-4-1(3) 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." 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.

    E.    IC 13-30-2-1(5) [IC 13-7-4-1(4) prior to July 1, 1996], 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.

    F.    329 IAC 12-5-1 (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 this rule, after February 21, 1994. This violation is based on the fact that during these inspections you were operating a waste tire storage site without the proper certificate of registration.

    G.    IC 13-20-13-2 [IC 13-7-23-6(b) prior to July 1, 1996], which states 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 its appeal); 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.    On May 5, 1999, a Notice and Order of the Commissioner of the Indiana Department of Environmental Management was issued to the Respondents, Rosalie Hahn and Kermit Brown.

8.    In recognition of the settlement reached, Respondents waive 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2.    After the Effective Date of this Agreed Order, Respondents shall lift and remove each month at least three thousand seven hundred fifty(3,750) lbs. of passenger tire equivalents (PTEs) from the Site to a permitted solid waste disposal or processing facility. Respondents shall record each load of waste tires removed from the Site on waste tire manifests according to 329 IAC 12.

3.    Respondents shall complete the removal of all waste tires from the Site within seven hundred thirty (730) days of the Effective Date of this Agreed Order.

4.     Respondents 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.

5.    Respondents shall, within five (5) days of removal of each load of waste tires, submit to IDEM copies of all disposal receipts and manifests documenting proper disposal of any and all waste tires removed from the Site.

6.    Respondents shall not operate as a waste tire transporter unless done in compliance with 329 IAC 12.

     Respondents shall not operate as a solid waste disposal or processing facility unless done in compliance with 329 IAC 10 and 11 and IC 13.

     Respondents agree to grant IDEM, its agents, as well as persons performing IDEM approved Supplemental Environmental Projects and their agents, access to the Site for waste tire cleanup if the opportunity arises; including the use of State Funds and/or Supplemental Environmental Projects. This granting of Site access by Respondents shall not, in any way, obligate IDEM to perform cleanup activities at the Site. Furthermore, Respondents agree not to hold IDEM liable for any loss or damage to persons or property arising from any IDEM actions at the Site. Respondents acknowledge that all activities IDEM elects to perform will in no way relieve the Respondents from liability for violations of the Indiana Code and the Indiana Administrative Code.

9.    Respondents, Rosalie Hahn and Kermit Brown, shall withdraw their Petition for Review in Cause Number 99-S-E-2308 within ten (10) days of the Effective Date of this Agreed Order.

10.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
    
    Paul Higginbotham, Section Chief
    Solid Waste Section
    Office of Enforcement
    Indiana Department of Environmental Management
    100 North Senate Avenue
    P.O. Box 6015
    Indianapolis, Indiana 46206-6015

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
        Order Condition #2, 3 or 5        $500 per week per violation
        
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 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 Respondents' violation of this     Agreed Order, or Indiana Law, including but not limited to civil penalties pursuant to IC     13-30-4.

13.    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 Agreed Order shall apply to and be binding upon the Respondents, their officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondents' 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 Respondents shall in any way alter its status or responsibilities under this Agreed Order.

15.    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.

16.    The Respondents shall provide a copy of this Agreed Order, 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 Agreed Order comply with the terms of this Agreed Order.

17.    This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause letter to Respondents.

TECHNICAL RECOMMENDATION:        RESPONDENT:
Department of Environmental Management

By:___________________________        By:____________________________
Paul Higginbotham, Chief
Solid Waste Section                Printed: Rosalie Hahn
Office of Enforcement
                            Date: __________________________
Date: ________________________

COUNSEL FOR COMPLAINANT:            RESPONDENT:
Department of Environmental Management        
By:___________________________        By: ____________________________
Office of Legal Counsel
Department of Environmental Management    Printed: Kermit Brown

Date: _________________________        Date: ___________________________

    
                            COUNSEL FOR RESPONDENT:
                        
                            By: ____________________________

                            Date: ___________________________

                            
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF __________________, 1999.

                        For the Commissioner:
                            

                        __Signed on 7/14/99_____
                        Felicia Robinson George
                        Assistant Commissioner of Enforcement
                                    

Converted by Andrew Scriven