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

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT        )
                            )
        Complainant,                )
                            )
            v.                )        Cause No. SW-287
                            )
RANDY POWELL D/B/A    )
POWELL'S AUTO PARTS    )
                            )
        Respondent.                )

NOTICE AND ORDER OF THE

COMMISSIONER OF THE

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

VIA CERTIFIED MAIL No. __________________

TO:    Randy Powell d/b/a
    Powell's Auto Parts
    5075 State Road 252
    Martinsville, Indiana 46151

    Following is the Notice and Order of the Commissioner of the Department of Environmental Management issued against the Respondent for violation of IC 13-30-2-1(3), (4), amd (5) (IC 13-7-4-1(3) and (4) prior to July 1, 1996), 329 IAC 10-4-2 and -3 (329 IAC 2-4-2 and -3 prior to April 13, 1996) and 329 IAC 12-5-1 (329 IAC 2-23-2 prior to April 13, 1996). This Order is issued pursuant to IC 13-30-3-4, IC 13-30-3-10, IC 13-30-3-11 and IC 4-21.5-3-6, and is based on violations found during investigations conducted by the Office of Solid and Hazardous Waste Management. During the investigations, it was determined that the Respondent was in violation of IC 13-30-2-1(3), (4), and (5) (IC 13-7-4-1(3) and (4) prior to July 1, 1996),

329 IAC 10-4-2- and -3 (329 IAC 2-4-2 and -3 prior to April 13, 1996), and 329 IAC 12-5-1 (329 IAC 2-23-2 prior to April 13, 1996) as specified below:

FINDING OF VIOLATION

1.    Designated representatives of IDEM conducted inspections at Powell's Auto Parts, 4 miles east of Martinsville on SR 252, Section 8 of Jackson Township in Morgan County ("the Site") on April 18, 1994; August 2, 1994; October 21, 1994; December 9, 1994; March 28, 1995; July 7, 1995; August 15, 1995; and November 26, 1996.

2.     On the inspections noted above, the Respondent was found in violation of 329 IAC 10- 4-2 and -3 (329 IAC 2-4-2 and -3 prior to April 13, 1996), which prohibit, respectively, any person from causing or allowing the storage, containment, processing or disposal of solid waste in a manner which creates a threat to human health or the environment, and open dumping and open dumps, as defined in IC 13-11-2-146 and - 147 (IC 13-7-1-16 prior to July 1, 1996). This violation is based on the fact that during these inspections it was observed that solid waste including tires, appliances, demolition debris, household waste and roofing materials had been open dumped at the Site.

3.     On the inspections noted above, the Respondent was found in violation of IC 13-30-2- 1(3), (4) and (5) (IC 13-7-4-1(3) and (4) prior to July 1,1996), which require, respectively, that no person shall deposit any contaminants upon the land in such place and manner which creates, or which would create, a pollution hazard, or deposit, cause or allow the deposit of any contaminants or solid waste upon the land except through the use of sanitary landfills or another method acceptable to the solid waste management board, and that no person shall dump, 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 solid waste including tires, appliances, demolition debris, household waste and roofing materials had been open dumped at the Site.

4.     On the inspections noted above, the Respondent was found in violation of 329 IAC 12- 5-1 (329 IAC 2-23-2 prior to April 13, 1996), which requires, that no person shall operate a waste tire storage site, except as provided in 329 IAC 12-5-1. This violation is based on the fact that over 500 waste tires are being stored at the Site without a registration.

5.    Pursuant to IC 13-30-3-3 (IC 13-7-11-2(b) prior to July 1, 1996), IDEM issued a Notice of Violation on January 4, 1996 via Certified Mail to:

        Randy Powell
        Powell's Auto Parts
        5075 State Road 252
        Martinsville, Indiana 46151


6.    The Respondent received the Notice of Violation on January 8, 1996.

7.    The Notice of Violation contained an offer to enter an Agreed Order containing actions required to correct the violation.

8.    More than sixty (60) days have elapsed since Respondent was offered the opportunity to enter into an Agreed Order.

9.    The Respondent has not entered into an Agreed Order resolving these violations.

ORDER

1.    The Respondent shall immediately cease and desist violation of IC 13-30-2-1(3), (4), and (5), 329 IAC 10-4-2 and -3 and 329 IAC 12-5-1.

2.    The Respondent shall , within ninety (90) days of the Effective Date of this Order, remove and dispose of all solid waste to a state approved solid waste management facility.

3.    The Respondent shall use a registered waste tire transporter to transport the tires to a state approved solid waste management facility.

4.    The Respondent shall, within one hundred (100) days of the Effective Date of this Order, submit documentation as proof of proper disposal. The documentation shall include manifests for transport and disposal of tires and landfill receipts for solid waste disposal.

5.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to :

        Lori Colpaert
        Office of Enforcement
        Indiana Department of
        Environmental Management
        P.O. Box 6015
        Indianapolis, Indiana 46206-6015

6.    The Respondent is assessed a civil penalty of $12,000. Said penalty amount 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 Cause Number indicated on the check(s) and mailed to Cashier, IDEM, 100 North Senate Avenue, P.O. Box 7060, Indianapolis, Indiana 46206-7060.


7.    This Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns.

8.    The Respondent shall provide a copy of this Order, if in force, to any subsequent owners or successors before the ownership rights are transferred. Respondent shall ensure that all contractors, firms, and other persons performing work under this Order comply with the terms of 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. Pursuant to IC 4-21.5-3-7, 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 of fact 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:

Director                    Commissioner
Office of Environmental Adjudication    Indiana Department of Environmental Management
ISTA Building, Suite 618            IGCN, 100 North Senate Avenue
150 West Market Street            P.O. Box 6015
Indianapolis, Indiana 46204            Indianapolis, Indiana 46206-6015

    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 pursuant to IC 4-21.5-3-7 and your right to judicial review of the Order pursuant to IC 4-21.5-5- 4. The request for review must contain the following information:

    A statement of facts demonstrating that:

    (a)    You are the person to whom this Order is specifically directed;
    (b)    You are aggrieved or adversely affected by this Order; or
    (c)    You are entitled to review by law.

    The following information should be included in order to expedite review by the Office of Environmental Adjudication:

    Identification of the cause number of this Order, the specific findings of fact and/or orders to be reviewed, and the legal basis for your challenge to this Order. In addition, your request for review should include the name, address, and phone number of the entity or individual to whom

this Order is specifically directed. 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 Indianapolis, Indiana, this _____________ day of __________________, 1997.

                                Signed 3/31/97
                                ___________________________
                                Michael O'Connor
                                Commissioner

cc:    U.S. EPA, Region V
    Morgan County Health Department
    File G2A

Converted by Andrew Scriven