STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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)

 

Complainant,

 

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)

 

 

v.

 

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Case No. 2018-25430-S

 

 

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THE U.S. RUBBER COMPANY, INC.,

 

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Respondent.

 

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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 The U.S. Rubber Company, Inc. (“Respondent”), which owns/operates a waste tire storage site with Storage Registration Number 056-S-00648 located at 508 South Polk Street in Morocco, Newton County, Indiana (the “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”) via Certified Mail to:

 

Kevin Pence, Registered Agent

The U.S. Rubber Company, Inc.

508 South Polk Street

Morocco, Indiana 47963

 

5.               During an investigation including inspections on June 19, 2018 and September 4, 2018 conducted by a representative of IDEM, the following violations were found:

 

a.       Pursuant to 329 Indiana Administrative Code (“IAC”) 15-3-2(2) and (3), the owner or operator of a waste tire storage site shall:

 

(2)      comply with all applicable requirements of this rule; and

(3)      maintain financial assurance as required by 329 IAC 15-5.

 

As noted during the inspections, Respondent had not complied with all applicable requirements of this rule and had not maintained financial assurance as required by 329 IAC 15-5.

 

b.       Pursuant to 329 IAC 15-3-9, the owner or operator of a waste tire storage site or waste tire processing operation shall comply with all conditions included in the certificate of registration.

 

As noted during the inspections, Respondent failed to comply with all of the conditions included in the certificate of registration.  Specifically, Respondent stored more than 5,000 PTEs on site.

 

c.       Pursuant to 329 IAC 15-3-16, if the information provided in the application for the certificate of registration changes, the owner or operator of a waste tire storage site or waste tire processing operation shall provide the current information to the department no more than thirty (30) days after the information provided in the application for the certificate of registration changes.

 

As noted during the inspections, Respondent exceeded the number of waste tires listed on its registration by 16,010 PTEs over the permitted 5,000 PTEs and had not notified IDEM of its current number of waste tires.

 

d.       Pursuant to 329 IAC 15-5-1(2), the owner or operator of a waste tire storage site shall maintain financial assurance for removal of waste tires and final closure of the site, in an amount equal to or greater than the closure cost estimate.

 

Respondent has not maintained financial assurance for removal of waste tires and final closure of the Site, in an amount equal to or greater than the closure cost estimate.  Respondent has exceeded the number of waste tires listed on its registration by 16,010 PTEs over the permitted 5,000 PTEs that Respondent’s closure cost estimate was based upon.

 

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 329 IAC 15.

 

3.               Respondent shall, within ninety (90) days of the Effective Date of this Agreed Order, come into compliance with Waste Tire Registration No. 071-S-00555, which includes reducing the number of Passenger Tire Equivalent (PTEs) to the amount listed on the waste tire registration.

 

4.               Respondent shall, within one hundred and twenty (120) days of the Effective Date of this Agreed Order, submit documentation of proper disposal of all waste tires.  Documentation shall include receipts for disposal from a state approved solid waste management facility.

 

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

 

Janet Arnold, Technical Environmental Specialist

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

6.               Respondent is assessed and agrees to pay a civil penalty of Six Thousand Dollars ($6,000).  Said penalty amount shall be due and payable to the Waste Tire Fund in four (4) installments.  The first installment of One Thousand Five Hundred Dollars ($1,500) shall be paid within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.  Subsequent installments of One Thousand Five Hundred Dollars ($1,500) shall be paid within one hundred twenty (120) days of the Effective Date, two hundred ten (210) days of the Effective Date, and three hundred sixty-five (365) days of the Effective Date.

 

7.               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

Order paragraph #3

$500 per week late

Order Paragraph #4

$100 per week late

 

8.               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 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.

 

9.               Civil and stipulated penalties are payable by check to the “Waste Tire 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

 

10.     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 Waste Tire Fund, and shall be payable to IDEM in the manner specified in Paragraph 9, above.

 

11.     This Agreed Order shall apply to and be binding upon Respondent and its 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 its status or responsibilities under this Agreed Order.

 

12.     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.

 

13.     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.

 

14.     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 its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

 

15.     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.

 

16.     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.

 

17.     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 EPA or any other agency or entity.

 

18.     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, 2019

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality