STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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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: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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Date: ______________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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____________________,
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For the
Commissioner: |
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Signed
January 10, 2019 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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