STATE OF
INDIANA |
) |
SS: |
BEFORE THE
INDIANA DEPARTMENT OF |
||||
|
) |
|
|
||||
COUNTY OF
MARION |
) |
|
ENVIRONMENTAL
MANAGEMENT |
||||
|
|||||||
COMMISSIONER
OF THE DEPARTMENT |
) |
|
|||||
OF
ENVIRONMENTAL MANAGEMENT, |
|
) |
|
||||
|
|
) |
|
||||
Complainant, |
|
) |
|
||||
|
|
) |
|
||||
|
v. |
|
) |
Case #
2017-24718-S |
|||
|
|
) |
|
||||
Jack Gulley, |
|
) |
|
||||
|
|
) |
|
||||
Respondent. |
|
) |
|
||||
AGREED
ORDER
Complainant
and 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.
Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does
not constitute an admission of any violation contained herein. Respondent’s entry into this Agreed Order
shall not constitute a waiver of any defense, legal or equitable, which
Respondent may have in any future administrative or judicial proceeding, except
a proceeding to enforce this order.
I. FINDINGS OF FACT
1.
Complainant is the Commissioner (“Complainant”)
of the Indiana Department of Environmental Management (“IDEM”), a department of
the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is Jack Gulley who owns the property
located at CR 150 S/725 E, Parcel ID 26-13-17-400-000.230-004, Francisco,
Gibson County, Indiana (“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) to:
Jack
Gulley |
Jack
Gulley |
229
W Pinkney |
c/o
Sandra Gendren |
Princeton,
Indiana 47670 |
7217
E 150 S |
|
Francisco
Indiana 47649 |
|
|
Jack Gulley |
|
103 S Third St |
|
Francisco,
Indiana 47649 |
|
5.
During an investigation including inspections on
May 18, 2017, and August 1, 2017, conducted by a representative of IDEM, the
following violations were found:
a.
Pursuant to 329 Indiana Administrative Code
(“IAC”) 15-3-2, the owner 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.
As noted during the inspections,
Respondent stored approximately one thousand six hundred thirty-seven (1,637) waste
tires throughout the Site 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.
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 creating of a fire hazard, vector attraction, air or water
pollution, or other contamination.
As noted during the inspections,
Respondent caused and/or allowed solid waste, approximately one thousand six
hundred thirty-seven (1,637) waste tires, to be stored and/or disposed
throughout the Site in a manner which creates a threat to human health or the
environment.
c.
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 board.
As noted during the inspections,
Respondent deposited or caused and/or allowed solid waste, approximately one
thousand six hundred thirty-seven (1,637) waste tires, to be deposited at the
Site in a method which has not been determined by the board to be acceptable.
d.
Pursuant to 329 Indiana Administrative Code
(“IAC”) IAC 10-4-4, the owner of real estate upon which an open dump is located
is responsible for the following:
1.
Correcting and controlling any nuisance
conditions that occur as a result of the open dump.
2.
Eliminating any threat to human health or the
environment.
As noted
during the inspections, Respondent owns real estate upon which an open dump is
located and failed to correct and control any nuisance conditions and eliminate
any threat to human health or the environment.
6.
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 Complainant or
Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Within two hundred (200) days of the Effective
Date, Respondent shall remove all waste tires from the Site and dispose of them
at a permitted solid waste management facility.
4.
Within two hundred five (205) days of the
Effective Date, Respondent shall submit written documentation that the waste 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 Order paragraph No. 3 above
is done in compliance with all applicable federal, state, and local laws and
regulations.
6.
If Respondent needs additional time to complete
the removal and proper disposal of the waste tires as required by Orders 3 and
4, Respondent shall request an extension from IDEM no later than thirty (30)
days prior to the completion date required by Order 3. As long as Respondent has been making
progress on the removal, IDEM will grant the extension.
7.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Idelia Walker-Glover, Enforcement Case
Manager |
Office of Land Quality |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
8. In the event the terms and conditions of
the following paragraphs are violated, Complainant may assess and Respondent
shall pay a stipulated penalty in the following amount:
Paragraph |
Penalty |
3 |
$100
per week |
4 |
$100
per week |
9.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
any additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to Indiana law, including,
but not limited to, civil penalties pursuant to IC 13-30-4.
10.
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:
Indiana Department of Environmental
Management |
Office of Legal Counsel |
IGCN, Room N1307 |
100 North Senate Avenue |
Indianapolis, IN 46204 |
11.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1. The interest shall be
computed as having accrued from the Due Date until the date that Respondent
pays any unpaid balance. Such interest
shall be payable to the Environmental Management Fund, and shall be payable to
IDEM in the manner specified in Paragraph 9, above.
12.
This Agreed Order shall apply to and be binding
upon Respondent and his successors and assigns. Respondent’s signatories to this Agreed Order
certify that they are fully authorized to execute this Agreed Order and legally
bind the party they represent. No change
in ownership, corporate, or partnership status of Respondent shall in any way
alter his status or responsibilities under this Agreed Order.
13.
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 this Agreed Order did not
contain the invalid terms.
14.
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.
15.
This Agreed Order is not and shall not be
interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or
approval of any submittal made by Respondent pursuant to this Agreed Order,
shall not in any way relieve Respondent of his obligation to comply with the
requirements of his applicable permit or any applicable Federal or State law or
regulation.
16.
Complainant does not, by its approval of this
Agreed Order, warrant or aver in any manner that Respondent’s compliance with
any aspect of this Agreed Order will result in compliance with the provisions
of any permit, order, or any applicable Federal or State law or
regulation. Additionally, IDEM or anyone
acting on its behalf shall not be held liable for any costs or penalties
Respondent may incur as a result of Respondent’s efforts to comply with this
Agreed Order.
17.
Nothing in this Agreed Order shall prevent or
limit IDEM’s rights to obtain penalties or injunctive relief under any
applicable Federal or State law or regulation, except that IDEM may not, and
hereby waives its right to, seek additional civil penalties for the same violations
specified in the NOV.
18.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the EPA or any other
agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not
be held liable for any costs or penalties Respondent may incur as a result of
such communications with the EPA or any other agency or entity.
19.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
||||
Department of
Environmental Management |
|
||||
|
|
||||
By:
_________________________ |
By: _________________________ |
||||
|
Nancy
Johnston, Section Chief |
|
|||
|
Enforcement
Section |
Printed: ______________________ |
|||
Office
of Land Quality |
|
||||
|
Title:
________________________ |
||||
|
|
||||
Date: __________________ |
Date:
_______________________ |
||||
|
|
||||
|
|
||||
|
COUNSEL FOR RESPONDENT: |
||||
|
|
||||
|
|
||||
|
By:
________________________ |
||||
|
|
|
|||
|
|
||||
|
Date:
______________________ |
||||
|
|||||
APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
|||||
MANAGEMENT
THIS |
_____ |
DAY
OF |
__________________, |
20__. |
|
|
|||||
|
For the
Commissioner: |
||||
|
|
||||
|
Signed
January 10, 2018 |
||||
|
Peggy Dorsey, Assistant Commissioner |
||||
|
Office of
Land Quality |
||||