STATE OF
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BEFORE THE INDIANA
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COMMISSIONER
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Complainant, |
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Case No. 2004-14397-H |
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PAUL’S AUTO YARD, INC., |
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Respondent. |
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NOTICE AND ORDER OF THE
COMMISSIONER OF THE
DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT
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VIA CERTIFIED MAIL#_______________ |
VIA CERTIFIED MAIL#_______________ |
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Paul
Shafer, President |
Paul
Shafer, Registered Agent for |
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Paul’s
Auto Yard, Inc. |
Paul’s
Auto Yard, Inc. |
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651
West S.R. 2 |
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This Notice and Order of the Commissioner of the Indiana
Department of Environmental Management ("Order") is issued against Paul’s
Auto Yard, Inc. (Respondent) pursuant to IC 13-30-3-4, IC 13-30-3-10, and IC
13-30-3-11, and is based on violations of environmental rules and statutes
found during an investigation conducted by the Indiana Department of
Environmental Management (“IDEM”).
Specifically, the investigation, which included an inspection conducted
on January 21, 2004, revealed that the Respondent violated 40 CFR 262.11, 329
IAC 10-4-2, 329 IAC 10-4-3, 329 IAC 15-3-2, IC 13-30-2-1(3), IC 13-30-2-1(4),
IC 13-30-2-1(5), IC 13-30-2-1(1), 327 IAC 15, 327 IAC 15-2-5, and 327 IAC
15-6-2(a)(5)(E), as specified below: 329 IAC 3.1 incorporates certain federal
hazardous waste management requirements found in 40 CFR Parts 260 through 273,
including these identified below.
FINDINGS OF VIOLATION
1.
Complainant is the Commissioner (“Complainant”) of the
Indiana Department of Environmental Management (“IDEM”), a department of the
State of
2.
Respondent owns property located at
3.
IDEM has jurisdiction over the parties and subject matter of
this action.
4.
Pursuant to 40 CFR 262.11, a person who generates a solid
waste must determine if that waste is hazardous.
Respondent did not make a hazardous waste determination on the contents of two
(2) 55-gallon drums, which were solid wastes generated by Respondent.
5.
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
creating of a fire hazard, vector attraction, air or water pollution, or other
contamination.
Respondent caused and/or allowed waste tires, a solid waste, to be stored,
and/or caused or allowed disassembled vehicle parts, household wastes, earth (i.e.,
soils and organic matter), automotive fluids, oil, fuel, waste tires, and two
(2) drums containing an unknown substance to be disposed at the Site in a
manner which creates a threat to human health or the environment.
6.
Pursuant to 329 IAC 10-4-3, open dumping and open dumps, as
those terms are defined in IC 13-11-2-146 and IC 13-11-2-147, are prohibited.
Respondent caused and/or allowed disassembled vehicle parts, household wastes,
earth (i.e., soils and organic matter), automotive fluids, oil, fuel, waste
tires, and two (2) drums containing an unknown substance, all solid wastes, to
be open dumped at the Site.
7.
Pursuant to 329 IAC 15-3-2, the owner or operator of a waste
tire storage site shall possess a valid certificate of registration issued
under 329 IAC 15-3; comply with all applicable requirements of 329 IAC 15-3;
and maintain financial assurance as required by 329 IAC 15-5.
Respondent stored at least one thousand waste tires outside without a valid
certificate of registration under 329 IAC 15-3; did not comply with all
applicable requirements of 329 IAC 15-3; and did not maintain financial
assurance as required by 329 IAC 15-5.
8.
Pursuant to IC 13-30-2-1(3), no person shall deposit any
contaminants upon the land in a place or manner that creates or would create a
pollution hazard that violates or would violate 329 IAC 10-4-2 and 329 IAC
10-4-3.
Respondent deposited disassembled vehicle parts, household wastes, earth (i.e.,
soils and organic matter), automotive fluids, oil, fuel, waste tires, and two
(2) drums containing an unknown substance, contaminants, at the Site in
violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
9.
Pursuant to IC 13-30-2-1(4), no person shall 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.
Respondent caused and/or allowed disassembled vehicle parts, household wastes,
earth (i.e., soils and organic matter), automotive fluids, oil, fuel, waste
tires, and two (2) drums containing an unknown substance, contaminants or solid
waste, to be deposited at the Site in a method unacceptable to the solid waste
management board.
10.
Pursuant to IC 13-30-2-1(5), no person shall dump or cause
or allow the open dumping of garbage or any other solid waste in violation of
329 IAC 10-4-2 and 329 IAC 10-4-3.
Respondent caused and/or allowed disassembled vehicle parts, household wastes,
earth (i.e., soils and organic matter), automotive fluids, oil, fuel, waste
tires, and two (2) drums containing an unknown substance, solid wastes, to be
open dumped at the Site.
11.
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 in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
Respondent allowed disassembled vehicle parts, household wastes, earth (i.e., soils
and organic matter), automotive fluids, oil, fuel, waste tires, and two (2)
drums containing an unknown substance to be released into the environment in many
areas throughout the facility.
12.
Pursuant to 327 IAC 15, a person who has a point source
discharge of storm water associated with industrial activity and meets the
general and applicability requirements of 327 IAC 15-2-2(a)(1), 15-2-3, and
15-6-2, must comply with, among other things, the requirements of 327 IAC
15-2-5, 15-6-5, 15-6-7, 15-6-7.3, and 15-6-7.5.
Point source discharges of storm water associated with industrial activity have
occurred at the Site, and Respondent’s industrial activity meets the general
and applicability requirements of 327 IAC 15-2-2(a)(1), 15-2-3, and 15-6-2, but
Respondent had not complied with the requirements of 327 IAC 15-2-5, 15-6-5, 15-6-7, 15-6-7.3, and
15-6-7.5.
13.
Pursuant to 327 IAC 15-2-5, any person responsible for the
operation of a facility from which a point source discharge of pollutants
and/or storm water occurs must submit a Notice of Intent (NOI) letter to the
commissioner that complies with this section, 327 IAC 15-3, and the additional requirements
in any applicable general permit rule.
Respondent failed to submit an NOI letter to the commissioner.
14.
Pursuant to 327 IAC 15-6-2(a)(5)(E), the requirements of
this rule apply to all facilities involved in the recycling of materials,
including metal scrap yards, battery reclaimers, salvage yards, and automobile
junkyards, including those classified under the following SIC codes:
(i)
5015 (motor vehicle parts, used), and
(ii)
5093 (scrap and waste materials).
Respondent failed to comply with the requirements of
327 IAC 15-6, including, but not limited to, the following:
(a)
Failure to submit additional information with the NOI letter
as required by 327 IAC 15-6-5.
(b)
Failure to develop, implement, update, and maintain a Storm
Water Pollution Prevention Plan as required by 327 IAC 15-6-7.
(c)
Failure to monitor as required by 327 IAC 15-6-7.3.
(d)
Failure to submit an annual report to the commissioner as
required by 327 IAC 15-6-7.5.
15.
On March 21, 2005, a Notice of Violation was issued,
pursuant to IC 13-30-3-3 to the Respondent for violation of 40 CFR 262.11, 329
IAC 10-4-2, 329 IAC 10-4-3, 329 IAC 15-3-2, IC 13-30-2-1(3), IC 13-30-2-1(4),
IC 13-30-2-1(5), IC 13-30-2-1(1), 327 IAC 15, 327 IAC 15-2-5, and 327 IAC 15-6-2(a)(5)(E). Respondent received this Notice of Violation
on April 5, 2005.
16.
The Notice of Violation contained an offer to enter into an
Agreed Order, in accordance with IC 13-30-3-3.
17.
More than sixty (60) days have elapsed since Respondent was
offered the opportunity to enter into an Agreed Order.
18.
The Respondent has not entered into an Agreed Order
resolving the violations cited above.
ORDER
1.
The Respondent shall immediately cease and desist violation
of 40 CFR 262.11, 329 IAC 10-4-2, 329 IAC 10-4-3, 329 IAC 15-3-2, IC
13-30-2-1(3), IC 13-30-2-1(4), IC 13-30-2-1(5), IC 13-30-2-1(1), 327 IAC 15,
327 IAC 15-2-5, and 327 IAC 15-6-2(a)(5)(E).
2.
Respondent shall, within thirty (30) days of the Effective
Date of this Order, comply with 40 CFR 262.11.
Specifically, Respondent shall submit the results of the hazardous waste
determination for the contents of the two (2) 55-gallon drums that were on-site
at the time of the inspection to IDEM. Respondent
shall provide IDEM with documentation demonstrating proper transport and
disposal of the wastes.
3.
Respondent shall, within thirty (30) days of the Effective
Date of this Order, comply with IC 13-30-2-1(3). Specifically, Respondent shall remove all
tires from the Site and dispose of them at a permitted solid waste management
facility.
4.
Respondent shall, within forty-five (45) days of the
Effective Date of this Order, submit written documentation that the tires
removed from the Site have been taken to a permitted solid waste management
facility.
5.
Respondent shall ensure that all work conducted to satisfy
the requirements of Order paragraph 3 above is done in compliance with all
applicable federal, state, and local laws and regulations.
6.
Respondent shall, within thirty (30) days of the Effective
Date of this Order, comply with IC 13-30-2-1(3), (4) and (5). Specifically, Respondent shall clean up the
open dumping and/or releases in the following areas by removing all disassembled
vehicle parts, household wastes, earth (i.e., soils and organic matter),
automotive fluids not being addressed in Order No. 8 below, and by excavating
the soil six (6) inches beyond visible contamination:
a.
At the southern property boundary; and
b.
At all other areas where disassembled vehicle parts,
household wastes, earth (i.e., soils and organic matter), and automotive fluids
not being addressed in Order No. 8 below have been open dumped.
7.
Respondent shall, within forty-five (45) days of the
Effective Date of this Order, submit to IDEM documentation that releases in the
above areas have been cleaned up.
8.
Respondent shall, within thirty (30) days of the Effective
Date of this Order, submit to IDEM a site assessment plan. The purpose of the site assessment plan shall
be to conduct sampling and analysis in order to assess potential soil and
ground water contamination from the area of concern at the western portion of
the property where petroleum stained soils and pooled oil (i.e., mixture of
automotive fluids) were observed and, if necessary, the nature and extent of
contamination. 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/IN/gov/idem/land/risc. In addition, the site assessment plan shall:
a.
Describe and evaluate all areas of potential contamination
in and around the area of concern.
b.
Specify the method of determining the number and location of
samples to be taken to yield a representative assessment of the area of
concern. This method shall be:
1.
random sampling, pursuant to Section 3.4 of Chapter 3 of the
TRGD; or
2.
directed sampling, pursuant to Section 3.4 of Chapter 3 of
the TRGD; and
3.
developed to provide locations and methods of any ground
water samples pursuant to Section 3.4 of Chapter 3 of the TRGD.
c.
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.
d.
Specify how the ground water samples will be obtained and describe
the sampling procedures.
e.
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. Specify the analytical methods to be used and
the method’s Estimated Quantitation Limits (EQLs).
f.
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.
g.
Include within the site assessment plan a supplemental
contingent plan for determining the nature and extent of:
1.
soil contamination, as specified in Chapter 4 of the TRGD,
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.
h.
Include within the site assessment plan time frames for its
implementation.
i.
Be approved by IDEM prior to its implementation.
9.
Respondent shall, within fifteen (15) days of receiving
notice from IDEM of approval of the site assessment plan, implement it as
approved and in accordance with the time frames contained therein.
10.
Respondent shall, within fifteen (15) days of obtaining the
analytical results, submit said results,
including chain-of-custody information, and QA/QC records, pursuant to Appendix
2 of the TRGD, to IDEM.
11.
If soil or ground water contamination is identified, 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. The
remediation workplan shall:
a.
In accordance with 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.
12.
Respondent shall, within fifteen (15) days of approval by
IDEM of the remediation workplan, implement the plan as approved and in
accordance with the time frames contained therein.
13.
Respondent shall, within thirty (30) days of completion of
the remedial action conducted pursuant to the remediation workplan, submit to
IDEM certification by an independent registered professional engineer that the
remedial action has been completed as outlined in the approved remediation
workplan.
14.
Upon the Effective Date of this Order, Respondent shall
comply with IC 13-30-2-1(1).
Specifically, Respondent shall take immediate steps to capture any
potential release of fluids during auto crushing activities and immediately
cease allowing the release of contaminants into the environment.
15.
Respondent shall, within thirty (30) days of the Effective
Date of this Order, comply with 327 IAC 15-2-5(a) and submit an NOI letter,
which complies with all of the requirements of 327 IAC 15-3 and 327 IAC 15-6-5,
to IDEM.
16.
In the event IDEM determines that the NOI letter submitted
by Respondent is deficient or otherwise unacceptable, Respondent shall revise
and resubmit the NOI to IDEM in accordance with IDEM’s notice.
17.
Respondent shall, within ninety (90) days of the Effective
Date of this Order, conduct monitoring as required by 327 IAC 15-6-7.3.
18.
Respondent shall, within thirty (30) days after laboratory
analyses conducted pursuant to Order 17 have been completed, submit sampling
data results to IDEM for review. Respondent
shall also, in accordance with 327 IAC 15-6-7(b)(9), include the sampling data
results in the Storm Water Pollution Prevention Plan required by Order 19.
19.
Respondent shall, within one hundred and eighty (180) days
of the Effective Date of this Order, comply with 327 IAC 15-6-7. Specifically, Respondent shall develop and
submit to IDEM for approval a Storm Water Pollution Prevention Plan.
20.
Respondent shall, within ten (10) days of notice of IDEM’s
approval of the Storm Water Pollution Prevention Plan, implement the plan as
approved.
21.
In the event IDEM determines that any plan, including the
site assessment plan, submitted by Respondent is deficient or otherwise
unacceptable, Respondent shall revise and resubmit the plan to IDEM in
accordance with IDEM's notice. After
three (3) submissions of such plan by Respondent, IDEM may modify and approve
any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into
this Order and shall be deemed an enforceable part thereof.
22.
Respondent shall, within three hundred and ninety-five (395)
days of the Effective Date of this Order, submit an Annual Report in accordance
with 327 IAC 15-6-7.5
23.
All submittals required by this Commissioner's Order, unless
notified otherwise in writing, shall be sent to:
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Brenda
Lepter, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office
of Enforcement Mail Code 60-02 |
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24.
The Respondent shall pay a civil penalty of Twenty Five
Thousand Seven Hundred and Fifty Dollars ($25,750) for violation of 40 CFR
262.11, 329 IAC 10-4-2, 329 IAC 10-4-3, 329 IAC 15-3-2, IC 13-30-2-1(3), IC
13-30-2-1(4), IC 13-30-2-1(5), IC 13-30-2-1(1), 327 IAC 15, 327 IAC 15-2-5, and
327 IAC 15-6-2(a)(5)(E). This penalty
shall be remitted to the Department of Environmental Management within thirty
(30) days of the Effective Date of this Order.
Checks shall be made payable to the
Environmental Management Special Fund, with the Case Number indicated on
the checks and mailed to:
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Indiana
Department of Environmental Management |
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Cashier’s
Office Mail Code 50-10C |
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25.
This Order shall apply to and be binding upon the
Respondent, its successors and
assigns. No change in ownership,
corporate, or partnership status of the Respondent shall in any way alter its
status or responsibilities under this Order.
EFFECTIVE
DATE OF ORDER
Pursuant to IC 13-30-3-5,
this Order takes effect twenty (20) days following receipt unless you request
review of this Order, before the twentieth day after receipt, by filing a
written request for review with the Office of Environmental Adjudication, and
serving a copy of the request for review upon the Commissioner of the Indiana
Department of Environmental Management.
You may request that the Office of Environmental Adjudication conduct a
hearing to review this Order, under IC 4-21.5, in its entirety, or you may
limit your request for review to specific findings and/or orders contained in
this Order. Requests for review must be
submitted to the Office of Environmental Adjudication and the Commissioner of
the Indiana Department of Environmental Management at the following addresses:
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Director |
Commissioner |
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Office of Environmental Adjudication |
IDEM |
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100 North Senate |
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Failure to properly submit
a request for review, before the twentieth day following receipt of this Order
of the Commissioner, waives your right to administrative review of this Order
and your right to judicial review of the Order.
The petition for administrative review must contain the following
information:
a.
Name, address, and telephone number of each person filing
the petition.
b.
Identification of the interest of each petitioner in the
subject of the petition.
c.
Statement of facts demonstrating that the petitioner is:
(A)
a person to whom the order is directed;
(B)
aggrieved or adversely affected by the order; or
(C)
entitled to review under any law.
d.
Statement with particularity of the legal issues proposed
for consideration in the proceedings.
The petition for
administrative review should also contain the following information:
a.
Identification of any persons represented by the person
making the request.
b.
Statement identifying the person against whom administrative
review is sought.
c.
A copy of the notice of the commissioner’s action issued by
the department of environmental management which is the basis of the petition
for administrative review.
d.
Statement indicating the identification of petitioner’s
attorney or other representative.
If you have procedural or
scheduling questions regarding your request for review you may contact the
Office of Environmental Adjudication at (317) 232-8591.
Dated
at
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Signed on 4/5/06 |
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Thomas
W. Easterly |
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Commissioner |
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cc: |
Lake
County Health Department |
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Office
of Legal Counsel |
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Aaron
Green, Office of Land Quality |
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Nancy
Johnston, Office of Enforcement |
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Mr.
Gregg Romaine |
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OLQ
IB2 File |
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