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-291
            v.                )
    )
MARTIN MYERS    )
                            )
            Respondent.            )

    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.

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.    Respondent is Martin Myers ("Respondent"), owns and operates an open dump consisting of tires at approximately 1/4 mile North of SR 18 on East side of CR 600 East, located in Carroll County, Indiana ("the Site").

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

5.    Designated representatives of IDEM conducted inspections at approximately 1/4 mile North of SR 18 on East side of CR 600 East ("the Site") on May 26, 1993; March 7, 1994; June 8, 1994; August 15, 1995; and November 1, 1996, at the Site.

6.    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. These violations are based on the fact that during these inspections it was observed that solid waste in the form of tires had been open dumped at the Site.

7.    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. These violations are based on the fact that during these inspections it was observed that solid waste in the form of tires had been open dumped at the Site.

8.    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. This violation is based on the fact that over 500 waste tires are being stored at the Site without a registration.

9.    The Respondent plans to apply for approval from the Commissioner to use the tires in a beneficial reuse project at the Site.

10.    In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed 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 Repondent shall:

    A.    Appy for a waste tire storage site registration as follows:

        (1)    Store all tires in compliance with 329 IAC 12-5 and submit a complete application for a waste tire storage registration in accordance with 329 IAC 12-5 within sixty (60) days of the Effective Date of this Order; and,

        (2)    If the waste tire storage registration is denied, regardless of an appeal, the Respondent shall:

            (a)     Within sixty (60) days of the denial , remove and dispose of 4,000 tires at a state approved solid waste management facility ;

            (b)    Within one hundred and twenty (120) days of the denial, remove and dispose of all remaining tires at a state approved solid waste management facility; and,

            (c)    Within one hundred and thirty-five (135) days of the denial, submit documentation as proof of proper disposal of the tires. The documentation shall include manifests for transport and receipts from the state approved disposal facility for disposal of the tires.

or,

    B.     If the Respondent chooses not to apply for a waste tire storage registration or does not complete the requirements of 2A(1), the Respondent must remove and dispose of all tires as follows:

        (1)    Within sixty (60) days of the Effective Date of this Order , remove and dipose of 4,000 tires at a state approved solid waste management facility;

        (2)     Within one hundred and twenty (120) days of the Effective Date of this Order , remove and dispose of all remaining tires at a state approved solid waste management facility; and,

        (3)    Within one hundred and thirty-five (135) days of the Effective Date of this Order, submit documentation as proof of proper disposal of the tires. The documentation shall include manifests for transport and receipts from the state approved disposal facility for disposal of the tires.

    Lori Colpaert, Enforcement Case Manager
    Office of Enforcement
    Indiana Department of Environmental Management
    100 North Senate Avenue
    P.O. Box 6015
    Indianapolis, Indiana 46206-6015

5.    Respondent is assessed a civil penalty of $1,000. Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

6.    In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

        Violation            Penalty
        Condition #2A(2)(a)        $1,000 per day
        Condition #2A(2)(b)        $1,000 per day
        Condition #2A(2)(c)        $1,000 per day
        Condition #2B(1)        $1,000 per day
        Condition #2B(2)        $1,000 per day
        Condition #2B(3)        $1,000 per day
        Condition #3            $1,000 per violation

7.    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 assessment 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.

8.    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:

9.    In the event that the civil penalty required by paragraph 5 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

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

11.    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.

12.    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.

13.    This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order .

TECHNICAL RECOMMENDATION:        RESPONDENT:
Department of Environmental Management

By:___________________________        By:____________________________
Patrick Carroll
Office of Enforcement                Printed:________________________

                            Title:__________________________

Date:_________________________            Date:__________________________

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 __________________, 1997.

                            Adopted 7/17/97
                            _________________________
                            John M. Hamilton
                            Commissioner

Converted by Andrew Scriven